Tuesday, November 14, 2017

Zhiwei Tong: On "The State Supervision Law Legislation Need Further Improvement" 国家监察立法预案仍须着力完善 English Translation and Original Chinese Version

Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. The Series continues.

Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017. The essay examines the thrust of the reform legislation and offers a roadmap for improvement. That road map itself provides a masterful analysis of the evolving and dynamic state of Chinese constitutional thought. A more concise version of the article was originally published on line in Chinese. The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.

Professor Tong has given me his permission to publish an English translation of that essay, more accessible to Western audiences. It appears below along with the original Chinese language version. My thanks to Dr. GAO Shan for his excellent translation.

The State Supervision Law Legislation Need Further Improvement
                         童之伟 Tong Zhiwei[1]

This essay was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017. Here is the full text of my original blog post. In cases of any differences in the text of the essay, please refer to the journal version of this essay for citation or reference for any differences in the texts 

Abstract: With intensive studies and researches on promoting the legislation of the state supervision system, Chinese legal academics have reached common consensuses on some legal issues. However, for major political reform such as state supervision system, we shall remain cautious and diligent without being unnecessarily hasty. Perhaps it is appropriate to consider delaying the vote for the new state supervision law from the next National People’s Congress to 2019 or even later. If the timetable for state supervision law legislation planning and the required constitutional amendment had already been set by the authority, it is understandable for following the plan without any delay. In that case, I would recommend for a comprehensive state supervision law legislation that includes “how the agency organized,” “jurisdiction of the agency” “procedure of the enforcement” and the “enforcer of the law.” In addition, I proposed 14 points discussing how to improve the current legislation plan in the area of the forms of the law, the target of supervision, the jurisdiction, and accountability. 

Keywords: state supervision committee, state supervision legislation, constitution, custody, crimes involving taking advantage of one’s institutional functions (abuse of power)

State supervision law legislation plan refers to all legislative arrangements that are made for enabling the objectives of the state supervision system reform. In general, it involves required constitutional amendments and a reasonable length of time that coordinates the vote for constitutional amendments and relevant basic law lawmaking. Improving state supervision law legislation plan is an urgent issue that relates to an effective implementation of the Constitution and the constitutional principle “rule the state in accordance with the Constitution.” Although Chinese legal circle and academics had reached a broad consensus on many core issues, some aspect of the current legislation plan requires further study and debate for improvement.  

I.                              A Broad Consensus Among Chinese Legal Academia

The project of the state supervision law legislation involves multiple issues, especially in the area of the constitutional law, which is self-evident. Since December 2016, many issues have been intensively discussed and debated at various events or forums by Chinese academics, which enabled us to reach a broad consensus. As the following illustrates, the consensus formed a common ground for Chinese academics to explore the state supervision system reform further. For example:

First, a comprehensive state supervision system reform must be based on the Constitution. My first comment to the media’s announcement of the Central authority’s state supervision system reform plan was that “the constitutional basis for new state supervision system reform can be only obtained through a constitution amendment…the preparation for constitutional amendment must be in place when the regional pilot program for state supervision reform proved to be a success and before a nationwide implementation. ” [2] Another scholar (Qing) thoughtfully explained that
“the state supervision system reform and the establishment of the state supervision committee are major political reforms with a ‘Top-Down’ design. These reforms would face great uncertainty without a proper consideration of the Constitutional systemThe core of these reforms underscored the redistribution of the power, which require constitutional basis. As a consequence, a constitutional amendment is a natural prerequisite for the success of these reforms.”[3]

Based on the observation from the China Constitutional Annual Conference (host in Jilin University) in August 2017, the constitutional paradigm reached highly agreement on this issue.

                  Second, the constitutional basis for state supervision law legislation has to be ascertained by the constitutional amendment. In other words, as the legal circle agreed that state supervision law legislation could proceed after the constitutional amendment. “the state supervision system reform and the establishment of the state supervision committee are major political reforms with a ‘Top-Down’ design. These important reforms cannot proceed without consideration of the Constitution. when the reform involves the constitutional system, a constitutional basis is required to support the legitimacy of the reform. The current Constitution cannot provide a theoretical framework to justify the state supervision system reform, which we need to have a constitutional amendment to remove the legal obstacles of the lack of the constitutional basis.”[4] Many scholars had already vigorously discussed the issue, and thus it is unnecessary to repeat some argument.   

                  Third, the proposed new state supervisory authority shall be named as “People’s Supervision Committee” with a central-local structure. The Constitution provided that “state authority at all levels is taken by People’s Congress, the executive authority at all levels is taken by People’s Government.”   (as a tradition, the Central People’s Government is called as State Council in common usage) The State judiciary is called People’s Court. The state prosecutorate authority is called People’s Procuratorate. Even the Central Military Committee, a single level with less clear political structure, its predecessor was also known as People’s Revolutionary Military Committee. As a tradition, these institutions were created by NPC and held responsible to NPC, supervised by NPC, which all carried the title “People.” This tradition is coherent with the principle of respecting People’s Congress system as the fundamental political system. However, it is strange that there have been people and organizations insisted on an inappropriate name for this organization even with repeated explanations by Chinese constitution scholars. I am bewildered by this fact, but I hope this does not result from a lack of basic constitutional knowledge, or being arrogant, or even a little bit of both.     

Fourth, the legislature shall give priority to Organization Law of the People’s Supervision Committee before making other laws enabling the functions of the supervisory authority. The People’s Congress is guided by Organization law of People’s Congress. The State Council is guided by Organization Law of the State Council. Local institutions such as People’s Congress and government at various levels are respectively guided by Organization Law of Local People’s Congress and Organization Law of Local People’s Government. The same applies to People’s Court and People’s Procuratorate. Why People’s Supervision Committee is an exception without Organization Law? based on China’s constitutional tradition and practice, and the practical need of the supervision system, the legislature shall first make the Organization Law of the People’s Supervision Committee. In this regard, the author had long proposed that “the People’s Supervision Committee, same as People’s Government (including State Council), People’s Court, and People’s Procuratorate, shall first establish Organization Law instead of State Supervision Law. The same principle should equally apply to these institutions.” [5]    

In addition, some scholars had demonstrated the need for organization law with other reasons. “the only central institutions without organization law is the Central Military Committee. The lack of organization law for supervision committee may create an impression that considering supervision committee and military committee sharing same political nature. Does supervision committee follow the same military operation rules as the military committee? The misunderstanding under such impression shall be dismissed because the nature of the supervision committee is drastically different from the military committee. The function of the supervision committee is anti-corruption, safeguard human rights. It is a state function with clear democratic nature. There are fundamental differences between the supervisory system in feudal China and the proposed reform.” [6]

Fifth, the state supervision system reform pilot program cannot be a superficial one. The program must be carried out in a down to earth manner, which means the experiment cannot be too short, preferably, it shall last at least until the spring of 2019. Just as the process of fermentation in winemaking requires a certain amount of time, evaluation of the effectiveness of the pilot program cannot be done in a short time. One scholar questioned that, “one shall carefully exam the reasonableness of the length of the time between the proposed constitutional amendment and the start of the supervision system reform pilot program. For example, the Standing Committee of the NPC announced the decision for the pilot program on December 25th of 2016, and the execution of the authorization under the pilot program started at the following day. By carefully reviewing the authorization announcement, one would notice that there was no mention of the time limits for the pilot program or even suggestion about pilot program shall be finalized within a year or two.” This Scholar (Liu) further argued that “Recent media reported that the upcoming 13th National People’s Congress first meeting would discuss the constitutional amendment and the legislation of the state supervision law in March 2018. One may suspect that the Standing Committee of the NPC purposely omitted the length of the experiment due to such extreme time restraint. If this is the case, then one would ask whether important reform program such as state supervision system can be implemented within a year and a few months? Could any policymakers fully appreciate the experience of the pilot program, identify issues and find proper solutions within such short time?” These concerns are quite common among Chinese academics.   

Scholars who studied 17 authorizations of the reform program by the Standing Committee of the NPC between December 28 of 2012 to December 25 of 2016 discovered that “all 17 authorizations set a time limit of two years. This suggested that the authority generally consider 2 years is an appropriate time to assess the effectiveness of a reform program.” [7] It is noted that all these 17 authorizations involved small reforms, which significance is far less than the political system reform such as the supervision system reform. Thus, it is appropriate to have a five-year experiment for major political system reform such as state supervision system.    

In addition, the PRC Legislative Law defined the authorization shall not exceed five years unless otherwise specified…the authorized authority shall report to the institution that confers such authorization six months prior to the expiration about the implementation of the authorized matters and makes recommendations for whether legislation is needed for the authorized matters. If the extension is needed, the NPC and Standing Committee can make the decision.” Although this rule may not apply to the state supervision system reform pilot program, the five-year time limit and the six-month report mandate provides necessary guidance.  

In contrast to the state supervision system reform program, people have reasons to believe that the pilot program tend to be superficial and there would be no sufficient empirical data from the experience if NPC decided to vote basic law related to the state supervision law on March 2018. Although the resolution for the pilot program was announced at the 25th meeting of the Standing Committee of the 12th NPC on December 25th of 2016, the actual implementation was quite late. Take the example of the author’s personal study, the author’s field research indicated that even on April of 2017, the personnel that exited Provincial Procuratorate had yet transferred to the designated institution until May. The legislative research and study of the pilot program shall occur at least 3 months prior to the legislation work. Otherwise, it would be too late to incorporate any empirical data from the pilot program. There are only 9 months between June 2017 and February 2018. It got worse when we consider 3 months for research and study should be taken out from the 9 months, which only gave us 6 months. The outcome of the six months legislative experiment is extremely limited. Even we presume the other two provinces under the pilot program started in March 2017, earlier than the sample I used, we still only have 8 months of time for the experiment. It is hard to have a meaningful experiment within such short time for such major political reform. All other 17 smaller and less important reforms had been screened for significantly longer time than the current state supervision system reform.        

Six, the draft for the PRC Supervision Law shall be released for public and academic commenting as soon as possible. The further state supervision system reform is not only a major political system reform but also a critical part of improving and modernizing state governing system. The reform shall incorporate opinions from both party and the mass, and the experts. One of the greatest political tradition since the Reform and Open Up is to promptly publicize the legislation draft involving interests of all Chinese and the basic legal system for public commenting. Public debates for Constitutional amendment and draft has been a long-established tradition for more than six decades. Three months had passed since the review of the current draft for PRC supervision by the Standing Committee of the NPC, but there was no scheduled public commenting, which is a bit of unusual. The society and China’s legal communities are anxious to see the draft.  
The six issues discussed here are well reasoned and supported by the law. Relevant opinions under these issues are resonant with Chinese scholars. These opinions shall be taken consideration with respect.

II.                         Recommended idea process for state supervision law legislation

Supervision system reform is a major political system reform, which means it requires careful planning and execution to avoid any unnecessary rush. There is no need to pass any supervision law at the NPC held in March 2018. 
The legislation of state supervision system can proceed with the balance between the quality and efficiency. If time permitted, it would be better to proceed by the following steps:

First, prior to any substance legislation relate to state supervision system, establish supervision institution through a constitutional amendment. Some may argue that there would be no issues concerning constitutionality for NPC Standing Committee reviewing proposed supervision law draft when the higher party authority is simultaneously preparing proposals for constitutional amendment. However, the author holds a different opinion.

The principle of enacting laws in accordance with the constitution refer to enact laws in accordance with the preexisted and effective constitution provisions. The legislation is not a one-time event by members of the legislature to vote on the subject. In fact, legislation is a process of implementing constitutional authority, which involves multiple parts. This process can take many years or few months. In the history of Chinese legislation, the Supervision Law of the Standing Committee of People’s Congress at all levels took 20 years to make. As the longest legislation, it was considered as “one sword, 20 years in making.” [8] The legislation process for relevant laws enabling the supervision system starts from the initial review by Standing Committee of NPC, it then needs to be passed by NPC, and later signed by the President. Based on current legislation work by the Standing Committee of the 12th NPC, one of the issues is that there are no constitutional provisions concerning the state supervision institution when the legislature starts to consider the establishment of such institution. In other words, the substance supervision law legislation occurred prior to any necessary constitutional amendment.

Now, one solution to the above problem would be passing the constitutional amendment at the National People’s Congress in March 2018. The legislature can make more adjustment on the draft and have the NPC vote the legislation on March 2019.

A more desired supervision lawmaking process requires a delayed voting by 2019 or even later.

Second, between now and the March of 2018 (when 12th NPC ended), the authority shall focus on the substance of the constitutional amendment enabling the newly proposed state supervision institution. the current formula is: Central CPC make a recommendation to NPC Standing Committee for a constitutional amendment. The NPC Standing Committee publicize the constitutional amendment proposal for public comments and make a proposed draft to the NPC. The constitutional amendment would be enacted after it passed by required votes at the NPC. The difficulty of the constitutional amendment is not the procedure aspect, but how to ensure Central CPC’s constitutional amendment proposal is the most reasonable, and how to reflect the majority opinions of the party. Three specific issues need to be considered in order to proceed this process properly.    
1.         As a principal issue, the Constitution need to clarify the position of the state supervisory organ under the state system. For example, the current Constitution established a constitutional hierarchy, which is NPC and Standing Committee, the President, State Council, Central Military Committee, Supreme People’s Court, Supreme People’s Procuratorate. Based on the author’s observation, there have been three opinions circulated among Chinese academics on how to position the supervisory organ under current Constitutional hierarchy. (1) position in between Central Military Committee and Supreme People’s Court; (2) position in between Supreme People’s Court and Supreme People’s Procuratorate; (3) position after Supreme People’s Procuratorate. Based on study and research, it is the author’s opinion that any legislative design cannot install a supervisory organ that would be above state judiciary organs. The court is one of the main state organs in almost all nations while the supervisory organ is merely an ancillary institution. [9]  It would be unusual to design a hierarchy that places the state supervisory organ above the Supreme People’s Court. As a principle, the judiciary is the last line of defense for the social justice. The judiciary would be much weakened by an institutional design that places supervisory organ above the judiciary. As a consequence, this would be counterproductive to the goal of improving Chinese political and legal system. [10] In addition, for the modernization of the state governance, the constitutional and actual position of People’s Court shall be higher than the supervisory organ. 

2.         Define the structure, authority, and leadership of the supervisory organ. The structure of the supervisory organ is a relatively easier task for the legislature. However, the authority of the supervisory organ is a much more difficult subject with great controversy. As for the issue of the leadership, there are two concerns. Within the supervisory organ, the lawmakers need to decide whether to have a collegiate system (collective leadership) or director responsibility system or even certain compromised system arrangement. The lawmakers also need to decide the nature of the inter-institutional relationship: whether the subordinate supervisory organs need to be led by the higher organs, or higher organ only supervises the subordinate or even a third option of compromise. Here, the author would pay special attention to the issue of defining the duty of the supervisory organ.  

In general, unlike the state legislature and judiciary, including the court system, the driving force of the state, the supervisory organ functions as a braking system of the state. Thus, it is common that supervisory organs are ranked low under any nation’s constitutional hierarchies with limited power than the legislature, executive, and judiciary. By giving more power to the supervisory organs, we could have a great design flaw because we are actually giving priority to a braking system over a driving system. In addition, we cannot attribute the insufficient power or ranking of the supervisory organs as the main causation for the rising of a corruption issue when there are multiple factors concern this issue. We shall be cautious to a form of thinking that solving the problem of corruption by giving more power and rank to supervisory organs. Such solution may be a wrong medicine for the corruption.           

3.         The lawmakers should try to coordinate and adjust the relationship between state supervisory organs and other state organs within the framework of NPC. Based on the proposed plan, it appears to be a new framework that the state supervisory organs do not report its work to NPC and Standing Committee. This plan may suggest an idea to construct a supervisory organ out of the constraint by the NPC. However, the author believed that this idea violates both the provisions and sprite of the Constitution and the NPC system. Currently, there has been no consensus among the interested parties on how to properly allocate power and duties between the Supreme People’s Procuratorate. We cannot rush for speed because resolving the issues concerning the duty of the supervisory organ requires a tremendous amount of time to carefully research and debate.

Third, this issue concerns the balance of political resource in state prosecution organs, which requires reaching consensus among party cadres and institutionalization. Political party resource refers to the totality of the resources obtained by a state organ, which includes Party political resource and any other resource given by Constitution and related laws. Interestingly there are some discrepancies (sometimes small and sometimes big) between the constitutional and actual rank (influence) of a Chinese state organ. This could be a result of a specific provision in the law. However, this issue is mainly caused by the unbalanced distribution of Party resource in different state organ. For example, under the Constitution, Chinese court at all levels are ranked same as an executive organ. However, the rank was effectively distorted in favor for the executive organ by certain laws. The actual rank of the court also further weakened the position of the court by the unbalanced distribution of power. For example, under the current political system, one of the benchmarks to measure the political resource of a state organ is determined by how many officers of the state organ are simultaneously serving on the Standing Committee of the Party Committee. Under the current arrangement, the executive organ took two seats at the Standing Committee of the Party Committee while the court has no representation at all. The difference in political resource creates a huge gap between the executive organ and judicial organs.     

It is noted that the distribution of the Party-political resource could effectively change the constitutional dynamics between different state organs. One of the most striking examples would be the seat of the Party Political and Law Committee (PPLC). Traditionally, PPLC Party secretary is seated by the head of the State Public Security Burau. As a result, although State Public Security Burau is lower ranking than the Court by the design of Constitution, the political resource of the State Security Burau outweigh the court substantially. In addition, this arrangement led to a police authority-oriented (criminal investigation centered) criminal justice system, which is one of the reasons for the high rate of wrongful prosecution. Fortunately, this trend has been corrected by now. In the event of the constitutional amendment and establishing state supervisory organs, the policymakers and lawmakers shall pay special attention to the past experience and the balance of political resource for different state organs. The political resource shall be readjusted to ensure judicial independence under the Constitution. The criminal investigation, prosecution, and adjudication against corruption shall be insulated from being taken control by the state supervisory organs at the same or higher level. All these ideas shall be institutionalized and written into governing political document. The 4th Plenary Session of the 18th Central CPC Congress provided that “promote the trail-centered litigation system reform, to ensure that the facts from investigation and prosecution can withstand the test of the law.” The author believed that the political resource allocated to judiciary should be no less than the state supervisory organ. This idea is coherent with the principle of the 4th Plenary Session of the 18th Central CPC Congress and the substance of the Chinese political system reform. 

Fourth, this issue concerns the drafter of the law. The law should not be drafted by the department of a specific organ. The law should be drafted by a specific department subordinate to NPC Standing Committee. The proposed legislation is currently drafted under the leadership of Central Discipline and Investigation Committee of CPC with the assistant of Law Committee of the Standing Committee of the NPC. The state supervision law concerns the reallocation of the power and the basic rights of the people, which requires the leadership from the highest power of the state organ to prevent CDIC inappropriately expand its power by weakening the position of other state organs and basic rights of the people.  

The idea of having relevant subcommittee of the highest state organ to draft supervision related law is coherent with the principle of the 4th Plenary Session of the 18th Central CPC, which provided that “strengthening and perfecting a legislation system led by NPC, bring NPC and its standing committee’s main role in charging the legislative work. Establish a legislation system that is organized and charged by special sub-committee of the NPC and Law Committee of the NPC Standing Committee with participation by relevant departments for making comprehensive and basic law.” The proposed supervision law is a basic law that would substantially affect the political and legal system of China, which might not be appropriate to have CCDIC exclusively charge the legislation.  

Based on the dominant state supervision law theory, when the power unreasonably favoring supervision organ would, it would negatively weaken the power of the other state organs, which could unreasonably limit or even infringe the basic constitutional rights of the citizen who is serving the political institution and breach the basic constitutional principle “equality before the law”. The draft is the foundation of one legislation. It would be impossible to correct during the reviewing period if there are too many issues in the draft. Thus, it is important to avoid the scenario that the pass of a state supervision law would cause constitutionality controversies.  

Fifth, if possible, the policymakers can first publicize the details of the supervision system reform for public comments prior to the voting of the constitutional amendment and the state supervision law; then the policymakers can proceed with decisions. The proposed reform plan would result in a new anti-corruption institution with great power and unification of party and state, which possesses equivalent constitutional and actual political power as the state council. The author believes we should be cautious to such organization. From reading various Chinese and foreign studies, the author concluded that many nations around the world, include America, Japan, Canada, Australia, New Zealand, United Kingdom, France, and German all of them do not have an institution with such power. Although the Corrupt Practices Investigation Bureau (CPIB) of Singapore, Central Bureau of Investigation (CBI) of India, and Korea Independent Commission Against Corruption suggested a higher level anti-corruption agency, they are either ranked at a minister-level or at a level direct subordinate to the prime minister. There is no anti-corruption agency at the same level as a cabinet level. In addition, China has never had a supervision agency with such power and structure.     

The author would like the policymakers to have further study and debates on the plausibility of establishing a new agency with the unification of party and state, and concentration of great power. Preferably we could proceed the legislation when we reached consensus on the necessity of such institution within the whole Party and the whole society. 

III.                     The perfection of the state supervision legislation when the legislative plan unchanged

The legislative plan refers to the timetable and the roadmap for reviewing and voting the basic law relate to the state supervision system. Reform is a complicated task entangled with other issues. With this in mind, it is acceptable that it might be impossible to readjust the present timetable and roadmap. It is hard to readjust the timetable mainly because the March 2018 need to vote and pass the necessary constitutional amendment at the first meeting of the 13th NPC, and establish the legislative plan to implement the legislation of the state supervision organ. However, besides these two events, another aspect of the plan can be readjusted.

The discussion of the state supervision legislation shall especially respect the principle of the Constitution, and basic rights of the people established by the Constitution, which includes the basic rights of the officials who are the subject of the law. This principle provides ethical supports of the law. the empirical experience and other countries’ experience suggested that an effective anti-corruption system cannot rely too much on the power and rank of the anti-corruption agency. The anti-corruption mechanism shall bring NPC into the full function under the constitution. in addition, the anti-corruption system shall respect the basic rights of the people in constraining the corruption.

The anti-corruption system shall encourage the public institution to fulfill its duty and protecting people’s basic rights. An anti-corruption system without participation by the mass cannot be fully effective. During the Ming dynasty, the Hongwu Emperor tried public execution of the corrupted officers, public display of the corpus, skinning the corpus, and other various cruel punishments against corruption with the very limited result. Without proper constraint and democratic oversight, a powerful anti-corruption agency itself could be the source of the corruption. It is noted that there are many nations maintained an honest and upright government without the need for a powerful and sophisticated supervision system. 

Based on the above discussion, the author provides14 recommendations:

1.         Under the principle of the Constitution, and the nature of socialist state system and the tradition of the Constitution, the title for the new state supervision organ legislation shall be People’s Republic of China the Organization Law of the People’s Supervision Committee. If the legislature decides to use the title People’s Republic of China Supervision Law for other considerations, the part relates to the organization of the supervision organ shall be incorporated to form a comprehensive supervision law. As a tradition, all state organ has coordinated organization law, which should be respected. However, the supervision law legislation can be achieved with the form and the substance. The legislature could have the supervision law related provision as the form of the law, and the organizational and procedural law related provision as the substance of the law. If time allowed, the legislature should consider incorporating provisions relating to the duties and responsibilities of the Supervision officer. 

2.         Under the constitution, the state supervisory organ can only execute the law, not the Constitution. Thus, we shall dismiss the argument that supervisory organ can execute the Constitution and “defend the Constitution.” As a basic constitution principle, the NPC and its standing committee have the prerogative in executing the Constitution exclusively. If the state supervisory organ could execute the Constitution or “defend the Constitution,” does it mean from the central organ to lower organs at all levels possess the prerogative of supervising the execution of the Constitution. One of the core tenants of the Supervising the execution of the Constitution is that the institution could review the constitutionality of the rules passed by the NPC and its Standing Committee. The State Supervisory organ shall not have such authority.   

The dominant theory in Chinese constitutional academics is that the NPC and its standing committee can directly execute the Constitution. The President, State Council, and the Central Military Committee have limited power in executing the Constitution. The court and the procuratorate execute the law by directly executing judicial power in a specific case. The court and the procuratorate cannot directly apply Constitution in the case. Direct application of the Constitution in the case would have a negative effect, and one can consult the incident of the “judiciary application of the Constitution” a decade ago. [11] This incident indicated the consensus among Chinese policymakers and academics that the court and the procuratorate have no power in applying the Constitution in the case directly. This principle should equally apply to the state supervisory organ. Thus, it is inappropriate to have state supervisory organ and its officers to execute the Constitution directly. 

3.         The proposal that to exempt the supervisory investigation and supervisory organs from the jurisdiction of the Criminal Procedure Law violates the principle and the provision of the Constitution, which should be dismissed. This proposal based on a presumption that the supervisory investigation shall be off limits from the restrictions of the Criminal Procedure Law, which would create a discriminatory treatment for the officers subject to the supervisory investigation by removing constitutional protection on officers’ basic rights. The article 33 (2) of the Constitution provided that “All citizens of the People’s Republic of China are equal before the law.” article 33 (4) provided that “Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and other laws.” It is noted that “every citizen” here prohibit NPC and any other organization to exclude a citizen with public duties from the constitutional protection.

Some may argue that the proposed provision would confine the free movement of a citizen for 3 months or longer under the supervisory investigation but not create any conflict with the constitutional protection provided by the Criminal Procedure Law because the supervisory investigation is different than the criminal investigation. This argument is ridiculous because it is as if one arguing the rice steamed in the iron pot is steamed rice, but the rice steamed in the aluminum pot is not steamed rice! Such argument lacks basic respect to the Constitution and the facts, which is unreasonable and ridiculous. Any legislation need supports from reasons and facts, without reasons and facts, we cannot do it, this is the basic principle of the rule of law. 

In investigating crimes involving abuse of power, the supervisory organ shall be treated as same as the people’s procuratorate under the Criminal Procedure Law. The state supervision system reform shall improve basic human rights in this regard, not reverse it. 

4.         The proposed supervision law can establish a tier system for the length of the detention. The proposed supervision law established a 3-month detention period for all situation subject to one extension for extra 3 months approved by the agency at next higher level. Based on the author’s research and investigation, investors from local CDIC and procuratorate commonly agreed that 3 months is sufficient for an investigation involving a high-level official, such as an official at the provincial level. It is not uncommon for them to apply for an extension of detention in such cases. However, 3-month detention might be unreasonably long for cases involving a lower level bureaucrat, such as an official at the municipal or departmental level. In addition, the 3-month detention may produce undesired and complicated outcomes for the local community. For example, when a businessman is detained by supervision organ for 3 months due to his or her involvement in bribing government officials, his or her business would be unattended during the detention. It is uncommon that a 3-month absence could substantially affect the normal business operation and those people in the community whose livelihoods are relied on the business operation. It is the author’s opinion that, a better alternative would be a limited application of the 3-month detention measure: reserving the power of issuing 3-month detention to the central and provincial level supervision organ exclusively with the possibility a one-time extension for extra 3 months. Any lower supervision organ can only issue 30 days detention with a possibility of extension of extra 30 days approved by the organ at the next higher level. In addition, the detention measure can be applied to an investigation involving abuse of power. Other less severe acts shall not subject to detention measure. If the legislature considering detention for less severe acts, then it shall specify the length of the time measured by days or hours.

5.         Under Criminal Procedure Law, when the time limit for holding a criminal suspect in custody during the investigation expired, an extension shall be reported to and approved by the People’s Procuratorate at the next higher level. (article 154 criminal procedure law) However, the nature of the restrictive measure under proposed supervision law would be harsher than the arrest of a suspect under the criminal law due to the extended 3-month time limit for holding the suspect in custody without any approval from the People’s Procuratorate. Article 37 (2) provided that “No citizen may be arrested except with the approval or by the decision of people’s procuratorate or by the decision of people’s court, and arrests must be made by a public security organ.” Under current law, the criminal arrest is the most severe measure, which requires the approval from the People’s Procuratorate. The arrest would not necessarily lead to a prosecution, and a prosecution would not necessarily lead to judgment, even a judgment for imprisonment could be less than 6 months and in some cases less than 1 months. Thus, the proposed supervision detention is a harsher measure because it could potentially restrict the freedom of a person for 6 months without any approval from the third agency. 

In conclusion, the proposed 3-month or 6-month detention without approval from People’s Procuratorate is incoherent with the principle and provisions of the Constitution. If the lawmakers wish to keep the proposed detention rule, then they should amend article 33 (2) and 27 (2) or provide an interpretation to resolve the conflict.

6.         The jurisdiction of the supervision organ should be restricted within the corruption or abuse of power crimes. Other crimes should be investigated by the People’s Procuratorate. The proposed legislation considering investigating crimes involving (abuse of power/ duty-related crimes or unlawful activities), which is a function related to anti-corruption. The supervision organ is an anti-corruption agency; thus it is reasonable to separate non-corruption related crimes from the duty of the supervision organ.  

7.         The proposed legislation should specify the leadership structure of the supervision organ. The new organ incorporates the duty of both government and judiciary, which should not be modeled on a centralized leadership structure. A better structure would be modeled on the People’s Procuratorate, a collective leadership under democratic centralism. To be more specific, the director of the supervisory committee in charge of the administrative work of the organ, the subcommittee discuss the cases under democratic centralism with the director as the host of the discussion. When the director disagrees with the majority of the discussion, the case can be reported to local NPC Standing Committee for decision. The planned the supervision organ can be modeled on the current People’s Procuratorate system.   

8.         The proposed legislation should offer a remedial mechanism for severe disciplinary or ordinary administrative punishment. The punished individual or organization should be able to ask the court to review the punishment. Maintaining a balance between the supervision power and the subject of the supervision power is coherent with the principle of civilized supervision system. The author supports that, “the state supervision law legislation should introduce remedy mechanism through judicial review. People can litigate supervision decision on detention, enforcing the injunctions against one’s property, or sever administrative punishment, such as discharge official duties.” [12] As for less severe punishments, the proposed legislation should offer complaint and review mechanism. It is only fair to have a judicial review mechanism when many supervision measures involving restrictions on the personal freedom and property rights of the people. As for the decision of recommending for criminal prosecution, the legislation should follow the preexisted criminal procedure regulations and laws that requiring a prompt notification to the suspect.

9.         It may be inappropriate to establish a supervisory organ or supervisor inside state organ or any other public organs. The proposed legislation plans to allow supervisory organ, with approval, dispatch supervisor into Party organ, state organ, and any other public organs at the same level. This proposal may be inconsistent with the modernized government function. The dispatch mechanism is an unordinary measure, which could create contentious between different functionaries. This dispatch measure is quite rare in other countries. The CCDIC dispatch practice should not be legalized through supervision law. 

10.   The supervision law should limit its enforcement on the part of ethics and morality related issues. Private matters can be regulated by the party discipline. The proposed legislation plans to incorporate inspection on the ethics and morality of the individual, which is incoherent with the general principle under Marxism-Leninism. Rule the state by virtue does not suggest the state to enforce moral values directly. The legislation should distinguish the difference between moral values and laws, it can express moral values through the principle of the law, and the judiciary should promote virtue through the judicial discretion. In addition, enforcement of moral values requires a context. For example, the state needs to first legislate moral values by identification and legalization. The enforcement requires definition and standard. The law cannot directly say the supervision organ inspect individual’s moral values. This is inappropriate. However, this does not suggest the law cannot supervise the behavior of the public officials because it is appropriate to ensure the behavior of the public official is consistent with the public value.   

11.   The proposed legislation should avoid the unjustified discretionary power of the supervisor in enforcing the law and investigation. One of the main complaints from the overseas and Chinese about anti-corruption was the unjustified discretionary enforcement of the law and investigation. Such discretion is unfair to the people but also is bad for the reputation of the anti-corruption. The debates on the supervision law rarely focus on how to avoid or limit discretionary power by the supervisor. The supervision law should include the following rules: the supervision organs and its staff should have a general registration system to collect corruption complaints and information, the registration should be shared by everyone within the organ. The registration should be summarized and file to the next higher level for recording. The investigation of the complaints and information should be discussed and decided by a committee under democratic centralism. No individual supervisor can make the decision about the complaint. When the case involves state security, foreign relations, military or other areas requires confidentiality, the staff can report it to the director or deputy director. 

12.   We should pay special attention to avoid the legislation is hijacked by one organ. The current state supervision law is drafted by CCDIC; the CCDIC will transform into the state supervision committee. The current legislation tends to fall into the “department-oriented” legislation model. Thus, it is quite obvious that, as the author learned from research, the legislation tends to create more power and reduce the responsibility of the agency. It is noted that the state supervision organ would become part of the state organ under the Constitution. There is no justification to take supervision organ as a special Party organ covered with state function. The distribution of state power should be justified by the Constitution. It is important to maintain a balance of different state power. It is inappropriate to establish a system centered on the needs of the state supervision organ. However, the current legislation tends to specialize the supervision power, tends to construct the state system and people’s basic rights based on the supervision power. This tendency should be corrected during the legislation. 

13.   Anti-corruption is the project belongs to the whole people. The supervision system should be the framework of the people with engagement by democratic parties and other people. “China has a large size of people works with state functionaries. It is hard to rely on the supervision committee to restrain the corruption fully. The anti-corruption is a political project requires the participation of whole people. The proposed state supervision system barred social and mass engagement. The democratic values are not fully expressed by the proposed legislation. Thus…the lawmakers can expand supervision power through the social and mass engagement.” The state supervision organ should not function as military or intelligence agency, or function as an internal party organ constituted by the party members. The project of Anti-Corruption concerns everyone’s interest. Thus, the nature of the anti-corruption project requires a culture of openness. This cultural is coherent with the Democratic Centralism and the Mass Line. It is better to encourage more people to engage in the project of anti-corruption.

14.   The proposed legislation should pay attention to the previous experience. There has been a great improvement in the past decades on the legislation quality. However, the main issue would be “broadness,” many important issues remained unclear. It is common to see the term “execute in accordance with the law.” There is no clear indication on which provision of the law or there is no provision that could support it. Other expression includes “follow the procedure” or “reasonable arrangement” or “strictly follow the process” or “accept supervision.” These expressions are confusing for its ambiguity. For example, follow what process? How to judge the strictness? What is “reasonable” arrangement in comparison with the arbitrary arrangement? The lawmakers need to pay attention to these ambiguous expressions.      

The current legislation would be a successful one with improvement on those discussed issues.


[7]王建学:《 授权地方改革试点决定应遵循比例原则》,《法学》2017年第5期。

[8]毛磊、杜文娟:《二十年磨一剑 记监督法出台前后》,人民网,http://theory.people.com.cn/GB/41038/4822886.html






推进国家监察立法涉及很多方面的问题,都有讨论的必要。就宪法层面来说,其中有些问题的答案是不言而喻的,实际上处在常识领域。从 2016年 12月以来,不少常识性问题其实已经在多种场合、以多种形式被说清楚了,因而可以说我国法学界已就这些话题达成了广泛共识。这些共识可以作为进一步讨论国家监察体制改革领域其他话题的基础。已达成广泛共识的意见主要有以下方面。
第五,国家监察体制改革试点不能走过场、做样子,必须扎扎实实地进行,因而试点时间不可太短,至少应持续至2019年春。像酿酒需要发酵时间一样,测试试点监察体制改革措施的效果也需要时间。有学者提出:“慎重考虑授权试点与修宪立法之间的时间衔接。仔细分析全国人大常委会 2016年12月25日决定、第二天就开始实施的对三省市的授权决定,即可发现,对这三个地方的授权试点,并没有规定时间,更没有说一年或者两年之内必须完成试点。”该学者质疑道:“现有舆论报道,2018年3月召开的十三届全国人大一次会议就要讨论修改宪法、制定国家监察法了。是不是由于修改宪法和制定国家监察法时间紧迫,全国人大常委会在授权决定中就没有规定具体的授权期限?若是这样,如此重大的试点改革在一年零几个月的时间内能否完成?能否充分总结经验、充分发现问题并找到解决问题的办法?”[7]应当说,这种担忧在我国法学界相当普遍。
反观国家监察体制改革试点,人们有理由得出这样的结论:如果要全国人大赶在2018年3月审议表决设立国家监察机关的基本的法律,改革试点的经验是不够充分的,易导致这项试点“走过场”。因为,第十二届全国人大常委会第二十五次会议于2016年12月25日通过此项试点决定,但实施试点的时间要晚得多。以笔者对某试点省的调查研究为例,笔者去该试点省调查研究是在 2017年 4月,那时该省从检察院剥离的人员还未到位,后来到位是进入5月的事情。再说,总结国家监察体制改革试点至少应在综合性的监察法通过前3个月,否则试点经验教训可能来不及进入监察立法。那么,从2017年6月算起,到2018年2月,总共只有9个月,扣除3个月,只剩下6个月了。6个月试点能试出的效果是相当有限的。就算另外两省市走得快,人员在2017年3月就到位了,也只有8个来月的试点时间。国家重大政治体制改革试点只用8个月时间,难以获取充分有效的试点经验。前述17项授权试点数据表明,那些改革试点的重要性远不及国家监察体制改革,但它们试点所用时间都比事关全局的监察体制改革多出一大段。
1.从宪法上明确国家监察机关在国家机构体系中的位置。这是一个原则性很强的问题。以中央国家机构为例,现行我国宪法的排列顺序是:全国人大及其常委会、国家主席、国务院、中央军委、最高人民法院、最高人民检察院。关于中央国家监察机关应处的宪法位置,据笔者了解,迄今为止有三种意见:放中央军委之后、最高人民法院之前;放最高人民法院之后,最高人民检察院之前;放最高人民法院、最高人民检察院之后。笔者的研究结论是,无论怎么摆,国家监察机关的实际地位不能高于国家审判机关。因为无论哪个国家的法院都是主要国家机关之一,而监察组织在各国往往只是主要国家机关的从属机构。[10] 如果将其地位放在最高人民法院之上,那就不符合常规了。审判是实现社会正义的最后防线,而若在宪法上把监察机关置于审判机关之前,可能会削弱国家审判机关的地位,不利于实现我国政治法律制度的综合效用。“凡是司法没有权威性和公信力的地方,就不可能有能够担当‘维护社会公平正义最后一道防线’的司法。”[11]从国家治理体系现代化的要求看,我国人民法院的宪法法律地位和实际地位,都应该高于监察机关。
我国宪法学界的主流观点是:全国人大及其常委会可直接依宪行使职权;国家主席、国务院、中央军委有少许直接依宪行使的职权;我国法院、检察院都是“依照法律规定”,以办理案件形式具体行使审判权、检察权的国家机关,无权直接适用宪法;办理具体案件的机关直接依宪行使职权会有大弊端,不可行。在这方面,如果回顾一下十多年前“宪法司法化”的风波,就能清楚领悟我国政治决策层否定“宪法司法化”的立场。[12] 这个立场充分反映了我国政治决策层和学术界在法院、检察院无权直接适用宪法、运用宪法裁判案件问题上的共识。这个共识应当也适用于主要以调查和办案方式行使职权的国家监察机关。
应当注意,我国《宪法》第33条第2款规定:“公民在法律面前一律平等。”该条第4款规定:“任何公民享有宪法和法律规定的权利,同时必须履行宪法和法律规定的义务。”这里要特别注意,我国《宪法》规定的是 “任何公民”都享有宪法和法律规定的权利,这个规定不允许最高国家权力机关和任何其它组织把担任公职的公民排除在受宪法、法律平等保护的公民群体之外。
(责任编辑:姚 魏)


[8]王建学:《 授权地方改革试点决定应遵循比例原则》,《法学》2017年第5期。

[9]毛磊、杜文娟:《二十年磨一剑 记监督法出台前后》,人民网,http://theory.people.com.cn/GB/41038/4822886.html




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