Reexamining the Bo Xilai Affair under the Investigation Regulations for the Discipline Inspection Organs of the Communist Party of China
Keren WangJanuary 17, 2013
On January 9th, 2013, the spokesperson from China’s Central Commission for Discipline Inspection (CCDI, CCP’s top disciplinary organ) announced that Bo Xilai, along with several other high-profile Communist Party officials have been “thoroughly investigated” for their alleged “serious violations of (Party) rules and laws…and their cases have been transferred to judicial organs according to law”. The announcement quickly dominated the headlines of major Chinese news outlets on that day. The focal point of CCDI’s announcement is Bo Xilai---the charismatic former Party-chief of Chongqing municipality, who since last spring has been implicated by charges of corruption and possible involvement in a murder case. Although Bo Xilai stands as the most prominent Party official prosecuted by the CCP in recent decades, few official comments have been made since his house arrest in April last year. The Wednesday’s announcement came as the first official update on his case in more than two months. Though characteristically vague, the statement from CCDI suggests that the intra-Party disciplinary action against Mr. Bo is finally over, and from now on Bo Xilai’s case will be handled by the state judicial organ instead for possible criminal violation.
The Jan. 9th announcement marks the beginning of criminal prosecution against Mr. Bo; this means that Bo Xilai has been held in detention without any formal state judicial proceeding for more than 9 months. At the first glace, Bo’s “arbitrary” house arrest---the very notion that the Chinese Communist Party should not have the ability to deprive one’s personal freedom for an extended period without any due process---seems to contradict Western notions of rule of law. Such suspicion of arbitrariness is grounded on the assumption of a totalistic state judicial apparatus---that any governmental detention and prosecution outside of the state judicial system it ought to be illegitimate. This essay suggests that the traditional Western notions on the rule of law and due process may not be entirely applicable to Bo’s case. The Chinese Communist Party differs from political parties found in Western democracies in that the CCP is vested with the leadership role within the Chinese constitutional hierarchy. The state government in China can be understood as the administrative apparatus under the leadership of the CCP and its multi-party coalition. The leadership role of the CCP includes the authority to organize itself and to exercise authority over its members. This authority includes the disciplinary power to detain CCP members suspected of corruption or other violations Party rules, and the suspected Party cadre may be detained by the CCP disciplinary organ under the principle of “shuanggui”. Being a high-level Party cadre, Bo Xilai is subjected to the CCP’s unique disciplinary system.
The mechanics of CCP’s disciplinary system is regulated by the “Investigation Regulations for the Discipline Inspection Organs of the Communist Party of China (abbreviated as ‘Investigation Regulations’ hereupon)”, which allows the CCP to take a wide range of investigative and punitive actions against cadres suspected of breaching party rules. The CCDI is responsible for the interpretation and promulgation of the “Investigation Regulations”, and party discipline inspection organs at all levels are expected to fully adhere to this ordinance. The Investigation Regulations are only applicable to CCP cadres, and CCP’s discipline inspection organs are granted with the authority to “exercise their right of visitation in accordance with the Party Constitution and the provisions laid forth in this ordinance, free from the interference of state organs, social organizations and individuals.” Therefore, the Chinese Communist Party’s internal disciplinary system can be understood as completely autonomous from the state judicial system. The term “shuanggui” can be roughly translated as “double-designation”, which refers to the investigative procedure provided by Article 28(3) from the Investigation Regulations where the investigation team from the CCDI may “demand relevant individuals appear at a designated time and place to provide explanations regarding all aspects of the case.” Though often criticized as “arbitrary arrest and detention”, Chinese legal scholars have argued that the shuanggui method is both reasonable and necessary for the socio-political realities in China, as the Chinese Communist Party enjoys leadership role over the administrative apparatus, and that most government officials are also CCP members. The CCDI is an extremely powerful organ within the CCP, and the Chinese government officers are said to be afraid of shuanggui because of the secretive and swift application of this “special” investigative method. The use of shuanggui against Mr. Bo seems especially necessary given his high position within the CCP. The fact that Chongqing’s former police chief resorted to hide in the American consulate in order to escape from Bo Xilai’s (alleged) wrath demonstrates that the Chinese state judicial system alone may inadequate to discipline high party officials.
The stories of the shuanggui process tend to go something like this: on an ordinary day and without warning or notification an officer is taken away in a van by people in plain clothes. He is not heard from again for some time. Few months later, people might hear the news that the officer is convicted for some crime by the local court. Sensationalistic narratives as such tend to reinforce the perceived “extra-legal” nature of the “secretive” Party disciplinary system in China. In reality, however, CCP’s internal disciplinary mechanism is far from being secretive---it is strictly regulated by the intra-party ordinance and is structured in a similar way as the state judicial system. The party inspection process is divided into four stages. The first stage is preliminary verification, which take place upon receiving a report of disciplinary violation by a Party member or Party organization. The disciplinary organ is required to ascertain the authenticity of the reported violation. If the preliminary verification provides adequate basis for the reported violation, the inspection will proceed to the second stage---case filing. The case filing initiates the formal investigation against the accused individual. During this stage, a case-filing report shall be drafted and submitted, with the initial verification report and other relevant materials attached. The case-filing report shall be examined and approved by the appropriate CCP discipline inspection organ. The third stage is the investigation stage, which take place after the case has been successfully filed. The “shuanggui” belongs to stage, where the discipline inspection organ must form an investigation team and use the allowed methods to obtain evidence against the accused individual. Although the discipline inspection organ is allowed to restrict the personal freedom of the accused individual during the investigation process, they’re prohibited from violating the Party Constitution or national law when obtaining evidence. Furthermore, all investigation material delivered by the relevant organs must be carefully examined. Those materials can only be used as evidence after being authenticated by the investigation personnel. The final stage of the inspection process is the case-hearing, which can be seen as the intra-Party equivalent of civilian court proceedings. Article 40 of the Inspection Regulation provides that all filed cases that require liability under the Party discipline shall be referred for hearing upon the completion of the investigation. After the case hearing and the discussion on the case by the concurrent-level Standing Committee on the Commission for Discipline Inspection, photocopies of the investigation report, the written report on the facts of the violation, the written opinions by the party under investigation in response to the written report on the facts of his or her violation, and the explanations on the opinions from the party under investigation by the investigation team must be sent to the Party organization of the individual under investigation for making the decision to take actions against the discipline violation. The entirely case inspection process must strictly adhere to the Party rules and the Party Constitution, and all inspection proceedings against the accused individual or Party organization must be conducted in accordance with the provisions set forth in the Investigation Regulations.
It can be said that the Inspection Regulations synthesizes the elements of flexibility and rigidity. On one hand, the ordinance provided meticulous (and perhaps convoluted) requirements for the investigation procedures, especially with regard to the complex "graded management system" during each stage of the investigation (Art.9,10,17), the "locality" rules for assigning authorities (Art.18), and the requirement for consultation and communication between the inspection organ and the relevant Party Committee. Interestingly, a high degree of flexibility is weaved within the punctilious language of the ordinance -- time limits may be extended, exceptions to the graded management system are provided, and the sequential order of various investigation stages may be slightly altered. Additionally, Chapter VII also suggested that the principles and procedures of this ordinance may also be applied outside of the Party framework. Despite these apparent (and implied) flexibilities, this ordinance should not be regarded as a carte blanche for the Party discipline inspection organs to conduct its works using whatever means necessary. The Investigation Regulations demanded strict adherence to the Party Constitution and the provisions from this ordinance. Most importantly, case examinations must strictly adhere to the principle of equality under party rules (Art. 5), that the rights of the Party members, including those Party members under inspection, must be guaranteed in accordance with the provisions of the Party Constitution (Art.8), and the investigation personnel are prohibited from violating the party constitution or national law with regard to the person under investigation (Art.45). Additionally, the person under investigation is given the right to dispute the evidences and findings, and to request the person handling the case rescue him or herself for various conflicts of interests.
Now, let us switch the gear back to the Bo Xilai Affair. Prior to his dramatic downfall, Mr. Bo was a rising political star and an active contender for a spot in the powerful Politburo Standing Committee. In 2007, Bo Xilai was appointed as the Party Secretary of Chongqing municipality---a sprawling megacity of nearly 30 million people located in China’s underdeveloped southwestern hinterland. As Chongqing’s party chief, Bo Xilai aggressively pushed his populist political reform platform known as “changhong-dahei (singing ‘red’, fight ‘black’)”, which is said to uproot city’s rampant crime problem and to revitalize the Maoist revolutionary spirit. With the help of his police chief Wang Lijun, Bo Xilai quickly built up a massive public security apparatus within Chongqing in the name of fighting against the organized crime. His domineering populist approach earned him the nickname “feudal king of Chongqing” on the Chinese Internet. Since then, Bo Xilai quickly became one of China’s most prominent and controversial politicians. Some praise his Chongqing model as a success alternative to Deng’s economic reform, while others voice concern over his revolutionary rhetoric and his heavy-handed police crackdowns. Bo Xilai’s political fortune came to an abrupt end when his former close ally Wang Lijun fled to the U.S. Consulate in Chengdu on February 6, 2012. Mr. Wang reportedly walked into the Consulate with incriminating evidence against Bo Xilai and Bo’s wife Gu Kailai. The American Consulate shielded Wang from almost certain arrest by local police officers loyal to Bo and ensured he could be taken safely to Beijing to make his case against the Bo family. Subsequently, both Bo Xilai and his wife Gu Kailai has been detained by Chinese authority. Gu Kailai has been convicted of murdering British businessmen Neil Haywood and received a suspended death sentence; whereas Mr. Bo has been found of violating CCP rules by the CCDI and has been recently transferred to the judicial authority for criminal prosecution. Wang Lijun has been found violating both Party rules and criminal law. He has been convicted of abuse of power, abuse of office, bribe taking, and defection, and received a combined sentence of 15 years.
Last October, Glenn Tiffert wrote an excellent essay detailing legal intricacies surrounding the Bo Xilai affair. The Tiffert article seeks to examine the tension between legal and Party disciplinary systems in China, which is part of the larger tension between the Chinese state and the CCP, by analyzing the recent the political drama of Bo Xilai, his wife Gu Kailai, and his former deputy Wang Lijun. Overall, the author is cautiously optimistic that the disciplinary proceedings against Bo, Gu, and Wang may hint a move towards greater rule of law and separation between Party and state disciplinary systems. Though the author based his analysis on mostly accurate facts, followed a seemingly cogent line of reasoning, there are some mistakes and misconceptions in his narratives.
First of all, the article claims that "Party rules restrict shuanggui to a term of six month". However, Article 39 of the Inspection Regulations provides that the time limit for detention is four months, not six. The article correctly points out that Bo disappeared in March, Based on his mistake over the time limit, the author speculates that "we may learn at trial that he (Bo) was transferred to state custody on a date that falls plausibly within this six-month time limit". This did not happen, of course. The official transfer of Bo’s case to the judicial organs did not occur until 9 months after Bo’s initial arrest. While the CCDI did hand over some incriminating evidence to the state judicial organs in September, 2012, it appears that Bo remained under the custody of CCDI until January 2013. That being said, we may not assume that Bo is being held in violation of the Party rules. Article 39 also stipulates that "In the case of major or complicated cases, if the investigation cannot be completed during the extended period, the investigation authority may request an additional extension." As the Bo Xilai scandal would most certainly fall under the category for "major or complicated cases", he may be held in custody longer than four months. It is also important to note that the transfer of evidence material to the judicial organ does not imply the conclusion of intra-Party investigation. Under Article 37 of the Investigation Regulation, the CCDI is required to forward incriminating material to the state judicial system once possible criminal violation has been found during its investigation process This would explain the time gap between evidence-transfer and the official hand-over of case for Bo Xilai.
The Tiffert article also claims that since Bo Xilai held no state office at the time, and that Bo Xilai himself is also subject to the 2005 Law on Public Servants, “paradoxically through his Party status." The claim of “paradox” is derived from the misconceived party-state differentiation on the part of the author. Functionally speaking, Communist Party officers have long been considered public servants, there's no clear distinction between party leader and state officials. In China, CCP officials are always public servants, but public servants are not always Communist Party members. The CCP’s leadership role is not confined within the central government---such power relation permeates all levels of government. Therefore, Party officials usually possess both political and administrative authority. For instance, prior to his discharge, Bo Xilai’s formal position was the Secretary of Chongqing Committee of Communist Party; nonetheless, Bo was effectively the “number-one man” in Chongqing’s local government. In this sense, both the 1994 Investigation Regulations and the 2005 Law on Public Servants should be applicable to Bo Xilai. As Party discipline usually take place prior to criminal investigations, prior to the January 9th announcement Mr. Bo was most likely to be held under the shuanggui guideline.
Moving Wang Lijun’s case, Tiffert correctly pointed out the "unusualness" in the fact that Wang Lijun has yet to be expelled from the Party as of October, 2012, despite being convicted of various crimes months earlier. Wang Lijun was convicted of criminal misconduct by the Chengdu City Intermediate People's Court in September 24, but the CCDI did not strip his Party membership until November 6th. This is somewhat aberrational as CCP members who committed serious criminal offenses are required by the Constitution to give up their Party membership. Although party discipline is typically delivered prior to the criminal conviction, it is not always the case. One possible explanation for the unusual sequencing of the Wang Lijun case may be found in Article 44 of the Inspection Regulations, where it states:
For those Party members that are involved in those cases that are already dealt with by the public security and judicial organs, if punishment under Party discipline is also needed, the discipline inspection organ may directly hear the case. If further investigation is needed, the relevant discipline inspection organ may initiate case-filing procedures.Article 44 implies that a Party cadre may be subjected to intra-party disciplining even after the state judicial process. Most importantly, the Tiffert article neglected a crucial detail for Wang Lijun's case---that his sentence is surprisingly lenient considering the severity of his convicted offenses. He received one-year sentence for defection, a crime typically carries 5-10 years of incarceration. When combined with one count of bribery, abuse of power, and abuse of office each, Mr. Wang only received a combined sentence of 15 years. Furthermore, the court only suspended Wang’s political rights for one year, so technically he can hold official positions again by September, 2013. These particularities in Wang’s case may hint possible future rehabilitation for Wang Lijun.
Given his misunderstandings of China’s intra-Party disciplinary mechanism, Tiffert’s conclusions would seem problematic as he attempts to recast these cases into a self-rationalized narrative on China's state-party legal system. The author first offered a voice of optimism by saying that "the Party, having conceded that it is subject to the law, faithfully submits its leading members to the same regulatory standard as state public servants, a refreshing acknowledgment perhaps of their actual powers and functions amid the blurred boundaries of the dualist Party-state." But this statement is based off a rather misguided "state-party" distinction in its treatment of party and state officials. As mentioned above, vast majority of criminally convicted state officials in the past are also party members, thus the dual use party and state disciplinary mechanism is not anything new. The author then contrasted his sanguine outlook with a word of caution: "But before we break out the champagne to celebrate this milestone in the tortuous journey of the rule of law in China, it bears keeping in mind that while such maneuvers reference state law, they reach it only after an initial, internal determination by the Party; it is the Party that permits a case to attain this point." While this statement might be true, it is not clear why “internal determination by the Party” should be considered as a bad thing.
Given the current socio-political reality in China, there is simply no way to conduct these "major and complex" cases but through the workings of the CCP---even the Chinese military is under the exclusive authority of the Communist Party. If not the Party, it is difficult to imagine who else can possibly press forward these high-level corruption cases in China. Tiffert goes further by observing that: "Though the Party has gone to considerable lengths to present its handling of the Bo, Wang and Gu cases as procedurally unimpeachable models of socialist rule of law, certain details belie its tidy narrative, and Wang Lijun helps to show how." So far even if we go 100% with the narratives from the official news sources in China, those three cases are obviously neither 'procedurally unimpeachable' nor 'tidy', and the Chinese public is very aware of that. If anything, I am surprised that the Party didn't even at least try to educate the public on its Investigation Regulations and put together a more coherent narrative on those prominent cases. Lastly, the Tiffert concludes that "In short, Wang’s case reminds us that even after considerable effort to systematize Party and state administration and bring the Party under the ambit of state law, old Leninist habits and sensibilities remain alive and well, and are never far from the surface." Given the fact that the CCP is currently having a highly contested debate on the future direction for relationship between Party and the law, I'm not entirely convinced that there was a "considerable effort to bring the Party under the ambit of state law" during the past few decades. It can be argued that the direction is quite the opposite--that since 1989 the CCP have resisted this western model of "Party under the law and state", and instead is seeking to develop its unique system of law that harmonizes the disciplinary functions between the Party and the state.
 “中纪委：薄熙来被移送司法机关 正对李春城立案 (Central Discipline Commission: Bo Xilai has been transferred to the judicial organ, case filed against Li Chuncheng)”, People’s Daily Online, 2013-01-09, http://legal.people.com.cn/n/2013/0109/c42510-20144527.html
 Backer, Larry Catá, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006
 Larry Catá Backer, “Jiang Shigong 强世功 on ‘Written and Unwritten Constitutions’ and Its Relevance to Chinese Constitutionalism”, Law at the End of the Day, December 23, 2012, available at http://lcbackerblog.blogspot.com/2012/12/jiang-shigong-on-written-and-unwritten.html
 Central Commission for Discipline Inspection of the Communist Party of China, “Investigation Regulations for the Discipline Inspection Organs of the Communist Party of China”, Published on March 25th, 1994, translated by Keren Wang (December, 2012). Available at: http://lcbackerblog.blogspot.com/2012/12/investigation-regulations-for-discipine.html (These are the critical regulations around which CCP’s intra-Party discipline is organized.)
 See Investigation Regulations, Art. 49:
The Central Commission for Discipline Inspection is responsible for the interpretation of this ordinance; the Central Commission for Discipline Inspection is also responsible for formulating the rules for the implementation of this ordinance. Which includes the Central Commission for Discipline Inspection of the Communist Party of China as well as local CCP commissions for discipline inspection.
 See Investigation Regulations, Art. 3
 See Investigation Regulations, Art.28:
All individuals and organizations with relevant knowledge on the case have the obligation to provide evidence. The investigation team shall have the right, in accordance with the procedures, to take the following measures to investigate and collect evidence (relevant organizations and individuals shall provide truthful evidence, and shall not refuse or obstruct investigation: …(3) To demand relevant individuals appear at a designated time and place to provide explanations regarding all aspects of the case. Li Yongzhong, “什么是’双规’：特殊的组织措施和调查手段 (What is Shuanggui: a Special Organization Measure and Discipline Method)”, interview by China News Weekly, 2003-10-19, http://news.sina.com.cn/c/2003-10-19/11251998584.shtml
 See Inspection Regulations, Article 11:
When a report of disciplinary violation by a Party member or Party organization is deemed admissible, the respective discipline inspection organ shall decide whether or not to conduct the preliminary verification. If preliminary verification is needed, the discipline inspection organ shall promptly send personnel to conduct verification work, or consign such work to discipline inspection organs from the lower level. See Inspection Regulations, Article 12: The purpose of the preliminary verification is to ascertain the authenticity of the reported violation, and to provide basis for case-filing.
See also, Article 16:
For those reported, accused, or discovered disciplinary violations committed by Party members or Party organizations, if the act of disciplinary violation is confirmed by the preliminary report, and if the violation requires Party discipline, the case shall be filed in accordance with prescribed authority and procedures. See Inspection Regulations, Articles 16-22.
 See Investigation Regulations, Article 23: After the case has been filed, the case-filing organ shall organize an investigation team based on the nature of the case.
 See Investigation Regulations, Articles 23-39.
 See Investigation Regulations, Article 45(1).
 See Investigation Regulations, Article 29
 See Investigation Regulations, Articles 40-44.
 Ibid, see Article 42.
 See Investigation Regulations, Article 4:
Case examinations must be based on facts and adhere to the principle of seeking truth from fact. Case inspections shall adhere to party rules, facts shall be clear, evidence shall be compelling, conclusions shall be accurate, treatment shall be appropriate, and proceedings shall be complete.See also, Article 5:
Case examinations must strictly adhere to the principle of equality under party rules. All violations of party rules and regulations by Party members and Party organizations must be inspected in accordance with the provisions set forth in this ordinance. “Black” refers specifically to “black society”, the Chinese term for organized crime.
 Wang Lijun was the vice mayor or Chongqing, responsible for the city’s public safety.
 Steven Myers and Mark Landler, “Frenzied Hours for U.S. on Fate of a China Insider”, The New York Times, April 17, 2012: http://www.nytimes.com/2012/04/18/world/asia/details-emerge-on-us-decisions-in-china-scandal.html?pagewanted=1&_r=2
 Glenn Tiffert, “Hold the Champagne: The Bo Xilai Affair, the Party-State, and the Rule of Law”, China Law & Policy, October 14, 2012.
 See Inspection Regulation, Art. 39:
The duration of investigation should be limited to three months. If necessary, one-month extension may be granted. In the case of major or complicated cases, if the investigation cannot be completed during the extended period, the investigation authority may request an additional extension.
 “中共中央决定给予薄熙来开除党籍、开除公职处分 (The CPC Central Committee decided to expel Bo Xilai from the party, and discharge him from his the public duty)”, Xinhua News, 2012-09-28: http://news.xinhuanet.com/legal/2012-09/28/c_113248574.htm
 See Investigation Regulations Article 37:
During the investigation, if it is found that the Party member has breached criminal law in addition to violating Party discipline, the case material of that Party member shall be forwarded to the relevant judicial authority. “王立军被双开 与多名女性发生或保持不正当性关系 (Wang Lijun received double-discharge, also allegedly maintained inappropriate prelateship with multiple women)”, Xinhua News, 2012-11-09: http://news.xinhuanet.com/legal/2012-11/09/c_123932253.htm
There area few points that are made in the essay that are worth stressing. The first is that the principles of constitutionalism are not meant to provide a theoretical cover and justification for the privileging of the constitutional systems of any region or people. To be useful, constitutionalism as theory must strive to be both trans-cultural and focused on general principles. The values that are such an integral part of constitutional construction forms a subordinate, though critical component of such studies. (See Backer, Larry Catá, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems (September 22, 2008). Penn State Law Review, Vol. 113, No. 3, 2009. But this is not to suggest that values are irrelevant to constitutional analysis. Subordination is what makes it possible to judge systems both legitimate within constitutional theory and incompatible with core political and social values of a particular state or people. Western theorists sometimes conflate principle and values in ways that tend to serve political projects. That create distortions in analysis that makes it more difficult to conduct trans-cultural analysis. This is particularly important in undertaking constitutional analysis in State-Party systems, like that of China. Backer, Larry Catá, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System (January 12, 2012). Boston University International Law Journal, Vol. 30, 2012. Shuanggui represents a procedural device that may be understood only within the context of Chinese constitutionalism. It is a technique that is central to the integrity of a system in which political power is exercised through the CCP and its organs which are themselves in a relationship with state organs that is not vertically ordered. We will turn to the issues of the constitutional legitimacy of Shuanggui and with the challenges that Shuanggui poses within Chinese constitutionalist theory in a longer study that we will post in the coming months.