Xi’s anti-corruption campaign takes root as a new state agency, extending its reach over a broad swathe of society. Ambitions for predictability and transparency have limits, but are worth taking seriously.

Described as a move to regulate the fight against corruption and reinforce official discipline, the decision to set up a National Supervision Commission (NSC) will create a new branch of government. A state body on the same level as the National People’s Congress, State Council, Supreme People’s Procuratorate and Supreme People’s Court, it extends oversight to cover not just Party, but all state and public-sector employees. The Supervision Law will guide its operation, limiting some of its procedures and measures. But critics, pointing to inadequacies in the law, say the NSC mainly serves to increase Party control over the government, and to hold all public sector employees to Party-style disciplinary standards.

countering negative side effects

The primary goal is to extend Party-style disciplinary control over the entire state apparatus. The Central Commission for Discipline Inspection (CCDI), the chief anti-corruption agency formerly led by Wang Qishan 王岐山, had authority over Party members only. The new NSC will cover all public sector employees, a broad swathe of society that includes not only state organs, but management personnel of state-owned enterprises (SOEs); public payroll staff in education, scientific research and health care institutions; and heads of rural village collectives. In reality, CCDI and NSC will be ‘one organisation with two name-plates’, fusing the power of the CCDI with the broader jurisdiction of a new state agency. Zhao Leji 赵乐际 CCDI secretary and Politburo Standing Committee member has stated that the ultimate goal of supervision is to strengthen the Party, so there is little question that Party priorities will guide NSC operations. The move represents a further increase of Party at the expense of state power, and of centralisation of power under Xi.

A second aim is to reduce damage supervision work may inflict on executing policy. Following his ascent to power in 2012, Xi declared war on corruption and indiscipline, ensnaring hundreds of thousands of party cadres during his first term. But the secretive and unpredictable approach also hampered administration and economic growth, as officials at all levels employed ‘soft resistance’ to avoid drawing investigators’ attention. A more rules-based approach could provide predictability, allowing cadres to pursue political initiatives with less fear of investigators.

A third aim is to give the fight against corruption and indiscipline a legal grounding. Probes into local governments and SOEs lack consistency, frequently driven by the investigators’ whims or need to meet quotas. At higher levels, corruption charges have often been used as weapons in power struggles, disproportionately targeting Xi’s political rivals. Those detained by CCDI were often held in extralegal confinement, and have alleged the use of torture. Its arbitrary standards stood in stark contrast to Xi’s promise to promote rules-based governance.

Experimental NSC branches were tested in Beijing, Shanxi and Zhejiang in late 2016. After the 19th Party Congress, NPC Standing Committee announced that they would be set up nationwide. Local governments have begun consolidating staff from various supervision organs into supervision commissions under the guidance of local party secretaries and directors of discipline inspection commissions. A National Supervision Research Institute was created at China University of Political Science and Law to guide policy, promote clean governance and train supervision talent.

from CCDI to NSC

The NSC apparatus will be a four-tier system, with a central body governing offices at provincial, municipal and county levels. Its members will be formally selected by and report to local people’s congresses, although they will almost certainly be chosen by the CCDI and Party Organisation Department.

In practice, there will be no firm boundary between CCDI and NSC. Official documents state they share office spaces and directors, as well as follow the same work routine. Public security and CCDI detention centres are being converted into detention spaces for individuals under supervision commission investigation. Although party cells will not be set up in supervision commissions, CCDI has repeatedly stressed that the ultimate goal of supervision reform is to strengthen Party leadership.

But NSC operations also differ from CCDI in crucial ways. While the CCDI was notorious for employing extrajudicial measures, the NSC and its local offices are to be bound by the Supervision Law. The National People’s Congress will amend the Constitution this spring, incorporating the Supervision Law into the overall constitutional framework and giving the NSC legal power. The first draft of the Supervision Law limited the measures investigators are allowed to employ to a list of 12, and imposed rules on the length and means of detention. NSC will take on a number of the investigative duties formerly carried out by the Procuratorate, Audit Office and Ministry of Supervision. At the end of an investigation, individuals suspected of corruption are to be transferred to procuratorial organs. Supervision commissions do not hold judicial or administrative power.

a win for ‘law-based governance’?

Prominent legal scholars argued that the first draft of the Supervision Law contained several major flaws, some of which have been addressed in the second draft of the law, submitted to the NPC on 23 December 2017.

Han Dayuan 韩大元 Renmin University Law School dean and Chen Guangzhong 陈光中 China University of Political Science and Law professor point out flaws in the law’s drafting procedures. While the drafting of a law of this importance should be led by the NPC, they say, it was in fact drafted by the Ministry of Supervision and CCDI, whose involvement casts the NSC’s independence into doubt.

Legal scholars also warn that the NSC lacks any apparent institutional checks, despite having been granted sweeping powers. Its supervisory body, the NPC, also falls under Commission jurisdiction, making effective supervision impossible. Other supervision mechanisms, such as internal supervision offices and judicial supervision, do little to address this flaw.

Further debates are taking place over specific articles in the Supervision Law draft, in particular the rights of individuals under investigation. Detainees should be granted access to attorneys while under detention, says Chen Guangzhong 陈光中, a right not guaranteed in the current draft. But Ma Huaide 马怀德 China University of Political Science and Law vice president disagrees, arguing that distinctions should be made between NSC detention and criminal procedures, under which individuals are entitled to legal counsel.

Public debate over the draft law has focused on its legality and limits on investigator power. But to the extent that the NSC institutionalises the practices of its predecessor agencies, it may have broad implications for all who fall within its reach. The war on corruption has already begun to broaden, targeting ideological deviance such as openly criticising party leaders, and unethical behaviours like adultery. If NSC applies these standards to all public sector employees, its power will not only reshape governance but ripple into the realm of public morality and culture.

who is moving the agenda?

Yang Xiaodu 杨晓渡 | Central Commission for Discipline Inspection deputy secretary

Shanghai-born, Yang climbed Party ranks in Tibet, spending 25 years there before being named its vice-governor in 1998. A hardliner on ethnic policy, Yang told state media that Abraham Lincoln would have ‘supported overturning serfdom in Tibet’. Transferred to Shanghai in 2001, he stayed there for the next 12 years. While secretary of Shanghai’s Commission for Discipline Inspection in 2012, he made headlines by investigating local judges’ patronage of prostitutes, leading to their dismissal. His promotion to the Politburo at the 19th Party Congress signals the high priority of anti-corruption on Xi’s agenda. Meanwhile, he is expected to continue playing a central role in Tibet.

Ma Huaide 马怀德 | China University of Political Science and Law vice president

A preeminent scholar in administrative law, Ma has helped draft crucial legislation including Administrative Penalty Law, Administrative Licence Law and State Compensation Law. Since 2012, he has endorsed regulations promoting stricter social and political oversight. The National Security Law, for example, gives the state sweeping powers to patrol arenas from cyberspace to outer space, and regulations allowing prosecutors to bring public interest lawsuits. As a special supervisor at the Central Commission for Discipline Inspection, Ma has also been vocal on the Party’s anti-corruption campaign, praising its record and pushing for its legalisation. Commenting on the Supervision Law draft, Ma called for better defining its role, not least its relation to people’s congresses and the procuratorate. He did not object to its intrusive investigation powers.

Han Dayuan 韩大元 | Renmin University Law School dean and China Constitutional Law Association president

A constitutional scholar, Han has long advocated for constitutionalism as the form of government most suited to China. By respecting the authority of the Constitution, he believes Chinese politics will rid itself of chaotic rules and shifting alliances, and law enforcement will not be tainted by human rights abuses. Major reforms, such as abolishing the one-child policy, should come from the National People’s Congress, the legislative body, he says, rather than the Party. In legal research, he argues that constitutional interpretation theory should be developed by treating the Constitution strictly as a legal document, free from political interference.

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