Tuesday, November 29, 2011

Taming Police Influence in Politico-Legal Committees

The overlap of administrative and Communist Party bureaucracies and party control over bureaucratic appointments mean that Chinese officials often wear many hats. Giving a single official simultaneous leadership posts cements party interest in the administration of government and allows various bureaucratic interests to be represented in policymaking. One way to judge an official’s political clout is to look at how many leadership posts he or she occupies at once.

Since 2002, concurrent appointments in powerful party and government leadership groups (领导班子) have indicated an increase in the amount of power granted to China’s police chiefs. One common arrangement at the provincial, prefectural, and especially county levels has been to name the same person as head of the public security organ and the “politico-legal committee” (政法委) within the local party organization. Due to a 2010 party directive discussed in a recent article by Guangzhou’s Southern Weekly, this arrangement may be coming to an end, but the change won’t necessarily mean any diminution of police power.

Entering the Inner Circle

The politico-legal committee is one of the least-understood components of the Chinese criminal justice system. This is largely because the Communist Party has not provided many details on its structure, internal rules, and day-to-day operations. Established at each level of the party’s leadership bureaucracy, from the central government down through China’s counties and urban districts, these committees are responsible for overseeing, coordinating, and managing the work of police, procuratorates, courts, and judicial administration organs.

Particularly at and below the provincial level, politico-legal committees frequently play an active role in the process of administering justice. Represented by high-ranking officials from public security, procuratorates, courts, and judicial administration institutions, the committee serves as a channel through which the interests of these institutions can be coordinated in pursuit of broader policy goals, such as fighting crime or preserving social and political stability.

In 2002, when Zhou Yongkang (then Minister of Public Security) was named to the Politburo and the State Council, it marked a clear elevation in the status of the public security system within the party-state organization. Throughout the country, heads of local public security bureaus joined their respective party and government “leadership groups,” often as members of the standing committee of the local party committee and as secretary of that committee’s politico-legal committee.

Politburo member and Politico-Legal Committee Chairman Zhou Yangkang presides over a plenary
meeting of the Central Politico-Legal Committee in Beijing, October 19, 2011.
Photo credit: Zhang Duo, Xinhua

In practice, this has tended to give police the greatest say in decision-making among China’s various legal institutions. Welcoming public security chiefs into the leadership group has generally increased the political clout of the police, giving them better access to personnel and budget allocations and facilitating the mobilization of political support for security interests.

Honorary Chief of Police

The arrangement, however, carries a significant downside. Instead of giving a sitting police chief a spot within the local leadership group, the more common practice has been to appoint an official who is already part of the leadership group as head of the public security bureau. As a result, many police chiefs have little to no experience in law enforcement and spend much of their time in administrative and party meetings with no direct relation to police work.

Having the same person head both the public security organ and the politico-legal committee also tends to create imbalance between the various institutions charged with enforcing and administering the law. With the head of police managing a committee responsible for “coordinating” the interests of public security, procuratorates, and courts, conflicts are bound to be resolved in favor of police interests—as, for example, when the committee intervenes in a criminal case in which the procuratorate refused to grant police approval for arrest.

Yang Haiyun, who until earlier this year headed the public security bureau and politico-legal committee in Huangzhong County, Qinghai Province, acknowledged that this arrangement tends to have a detrimental effect on the ability of procuratorates and courts to exert proper oversight. In 2010, National People’s Congress Deputy Wu Xiaoling urged an end to the practice of “putting the monitored in charge of the monitors.” Soon thereafter, according to Southern Weekly, the Central Organization Department of the Communist Party issued a directive that would prevent the heads of provincial-level public security departments from simultaneously heading provincial politico-legal committees. As of late October 2011, 22 of China’s 31 provincial-level politico-legal committees had complied.

This is not likely, however, to mean that the overall authority of China’s public security apparatus will diminish. The same 2010 directive still calls for public security chiefs to be members of the leadership group or party organization within the same level of government. So while the directive seeks to address the imbalance of power between public security, procuratorates, and courts that became institutionalized in the politico-legal committee, it also preserves a policymaking role for public security so as to maintain its preeminence in preserving public order and socio-political stability.

Wednesday, November 16, 2011

Protect Youth, Rights, Clarify Custody and Rehabilitation

The 15-year-old son of Li Shuangjiang, a retired People’s Liberation Army general known for singing patriotic songs, became the subject of scandal in September after reports emerged that he had assaulted a couple in a traffic incident and then warned bystanders not to notify police. The incident fueled intense online criticism from a public fed up with bad behavior and assertions of privilege by children of the rich and powerful.

News that Li’s son would serve one year in “custody and rehabilitation” may have satisfied some of these critics, but it prompted legal scholar Liu Renwen to reflect on shortcomings of the system of custody and rehabilitation—a system intended to protect juveniles who have not yet reached the age of criminal responsibility but that in fact resulted in consequences for Li’s son that in Liu’s opinion were too harsh. In commentary published by The Beijing News, Liu proposes reforms to better protect the rights of young people and improve China’s compliance with its obligations under international human rights law. He argues for greater restrictions on the use of custody and rehabilitation and the transfer of decision-making power from the police to the courts. (Liu is the Criminal Law Department director at Chinese Academy of Social Sciences’ Institute of Law; he also frequently comments on issues related to capital punishment.)


Custody and Rehabilitation System Needs Improvement
Liu Renwen, The Beijing News
October 8, 2011

Recently, Li Shuangjiang’s son Li X was sentenced by Beijing police to one year of custody and rehabilitation because he created a serious disturbance while under the age of criminal responsibility. This incident has turned the public’s attention to the system of custody and rehabilitation.

The legal basis for the system of custody and rehabilitation originates in Article 17(4) of the Criminal Law: “If [an individual] is not given criminal punishment because he/she has not reached the age of 16, the head of his/her family or his/her guardian shall be ordered to discipline [the individual]. When necessary, the government may take [the individual] into custody for rehabilitation.”

Looking at the original intent of the legislation, this provision was meant to resolve the following problem: Individuals who commit socially harmful acts but have not reached the age of criminal responsibility can neither be labeled criminals nor be simply ignored. So, the system of custody and rehabilitation was created as something akin to a security disciplinary measure.

However, practice shows that this provision has some areas that need to be improved. Specifically, this can be seen in, first of all, the vagueness in the standard for application. What, ultimately, is meant by “when necessary”?

I believe that we should establish the following basic criteria:

First, if the family has the ability to discipline, there is no need for the government to take [the juvenile] into custody for rehabilitation. Only for a juvenile that does not have family or whose family is unable to discipline should the government take [the juvenile] into custody for rehabilitation.

Second, if there is a family and a parent or guardian willing to carry out discipline, as a matter of principle, the family should carry out discipline for a first offense. If there is a second offense, however, custody and rehabilitation should be considered.

Third, in some vicious cases, even if [the juvenile] has a family and a parent or guardian willing to carry out discipline, if, out of overall consideration of the harmful consequences to society of the [juvenile’s] actions and the dangerous nature of the [juvenile’s] character, it is felt that there is need to send [the juvenile] to a custody and rehabilitation facility to carry out the necessary correction and behavioral intervention, custody and rehabilitation may be used even for a first offense.

In sum, [we] cannot regulate as vaguely as we do now with words like “when necessary.” This is too flexible and does not benefit the seriousness of law enforcement. In the case of Li Shuangjiang’s son, many believe that Li Shuangjiang’s notoriety led Li X to be treated unfairly, as custody and rehabilitation would not generally be used under these circumstances. Instead, a parent or guardian would [normally] be ordered to do the disciplining.

Next, there are flaws in the procedure used [for custody and rehabilitation]. [Although the law stipulates that] “the government may take into custody for rehabilitation,” in practice, the public security organ carries out custody and rehabilitation on behalf of the government. According to relevant regulations of the Ministry of Public Security, the duration of custody and rehabilitation generally ranges from one to three years. Deprivations of liberty for such a long period of time, without first conducting a court trial, are unreasonable.

China has already signed the International Covenant on Civil and Political Rights, which holds that all deprivations of liberty, regardless of whether in criminal or other proceedings, must be determined by a “competent, independent, and impartial tribunal established by law.”

With this spirit as a starting point, [we] should reform the procedure used for the system of custody and rehabilitation to transfer the decision-making power from its current holder, the public security organ, to the courts and to give individuals subjected to custody and rehabilitation and their parents or guardians the right to an open-trial hearing, the right to appoint a defense lawyer, and the right to appeal.

Otherwise, this awkward phenomenon will occur in practice: Legislation that was originally intended to protect juveniles results in an individual who has reached the age of criminal responsibility having the right to an open-trial hearing, the right to obtain a defense lawyer, and the right to appeal, while an individual in the same case who has not reached the age of criminal responsibility loses all of these procedural protections. This is clearly unfair.

Some may say that custody and rehabilitation does not involve labeling a [juvenile] as a criminal, and thus, relatively speaking, it still protects [the juvenile’s] interests. The problem is that this kind of protection cannot be at the expense of proper procedure, since this kind of protection can in fact be fully realized through a court decision.

Finally, the duration and implementation of custody and rehabilitation also have room for improvement. The current term of one to three years of custody and rehabilitation is too long and should be shortened. Also, there are currently no standards for the management of custody and rehabilitation facilities, and the methods of custody and rehabilitation used are too homogenous. We need to think seriously about how to truly come up with effective methods of education, reform, and rehabilitation that are based on juveniles’ physical and psychological characteristics, rather than simply locking them up in what even turns into [a kind of] disguised criminal punishment.

Liu Renwen, Researcher and Criminal Law Department Director, Institute of Law, Chinese Academy of Social Sciences

Thursday, November 10, 2011

In Chinese Lawmaking, Draft Disclosure Fosters Democracy

In China’s legislative process, public consultation is a relatively new phenomenon that is neither formalized nor routine. The handling of two recent pieces of important legislation suggests, however, that members of the public may begin to get more of a say in how their laws are written.

This would be a welcome turn of events for law professor Wang Lin. In commentary published by the Economic Observer (translated below), Wang recently wrote about the importance of public access to legislative drafts, in particular the criminal and civil procedure laws, as a means to democratize the legislative process.

The 11th NPC Standing Committee reviewing proposed drafts.  
Photo credit: npc.gov.cn
Though not nearly as devoid of debate as implied by the caricature of “rubber-stamp parliament,” the National People’s Congress (NPC) nevertheless remains some distance from being a democratic institution. Much of the process of drafting and deliberating legislation takes place behind closed doors. Because NPC deputies are not chosen through broad-based popular election, the national legislative body is a poor reflection of the increasingly complex and fragmented interests in Chinese society.

In the absence of electoral democracy, one way to give citizens more influence over policymaking is to establish institutions for public consultation and a greater role for public opinion. Public debate and discussion over legislation, Wang argues, will contribute to laws that are more easily accepted by society than laws passed without public comment. Citizen input in the drafting of procedural legislation is particularly important, given that these laws have direct relevance to the ways in which citizens’ rights may be exercised.

Wang’s essay was apparently written between the first release of information about proposed changes to the Civil Procedure Law on October 24 and the time the full text of the amended draft was published by the NPC Standing Committee on October 29. Similarly, official release of the draft of the amended Criminal Procedure Law followed initial media reports by a few days. For both pieces of legislation, the days preceding publication of the drafts were filled with a mixture of government propaganda and critical commentary, much of which was based on uncertainties about the specific wording of certain provisions.

In the case of the Criminal Procedure Law, Wang writes that the ultimate decision to publish the full text was a response to criticism of the proposed amendments. However, the gradual release could also be interpreted as a deliberate means for officials to control the grounds of debate and adapt publicity strategies to the public’s initial response. In fact, the gradual release of the less controversial amendments to the Civil Procedure Law demonstrates that delays are not necessarily indicative of strong public pressure.

Wang notes that in 2008 the NPC Standing Committee made a general commitment to publish draft legislation and seek public comment, but this process has yet to be firmly institutionalized. A possible reason is that China’s limited experience with public consultation has not always been easy. After being first published in 2002, a historic and controversial Property Law was forced by public scrutiny to undergo numerous revisions and withdrawn from consideration by the NPC before finally passing in 2007.

The general messiness democracy typically creates poses a challenge to the Chinese government, which has conventionally prized flexibility and efficiency as drivers of development. Wang maintains, however, that the benefits of a more democratic legislative process ultimately outweigh the short-term costs, and thus he advocates the full integration of public consultation into the legislative process.


Publicize Legislative Drafts to Promote a Democratic Legislative Process
Wang Lin, Economic Observer
October 30, 2011

     On October 24, the 23rd meeting of the Standing Committee of the 11th National People’s Congress reviewed the Draft Amendment of the Civil Procedure Law. According to reports, the draft will relax [restrictions on] public-interest litigation, and “relevant organs and mass organizations” will be allowed to act as plaintiffs in public-interest lawsuits filed with people’s courts.

     These reports led to much public discussion, but without additional sources of information, reporters and commentators have been left to play guessing games. Besides China’s ever-elusive “relevant organs,” [the term] mass organizations has also been subject to many different interpretations. In particular, use of the traditional phrase “mass organization” instead of the more broadly defined “social organization” has led the media to worry that the draft excludes the up-and-coming [sector of] non-governmental and nonprofit organizations from [the category of] possible plaintiffs in public-interest litigation.

     It is precisely because of the dearth of publicly available legislative information that public opinion has resorted to so much speculation and the legislative debate cannot properly begin. Two months ago the Draft Amendment to the Criminal Procedure Law was also the subject of heated debate after scholars first revealed [its content], and only after widespread calls from public opinion did the legislative organ publish the draft. In the August 26 edition of the Economic Observer, I called for a “public debate platform for the revision of the Criminal Procedure Law.” Of course, this “platform” is not only for the revision of the Criminal Procedure Law; it should be used for all NPC legislation. Specifically, [the entire process] from legislative planning to drafting, to first reading, final review, and passage should all be made public. Not only should the progress of legislation be made public; the drafts under review and the proposed changes should all be announced promptly.

     Legislative drafts concern the public interest and are a prerequisite for legislative debate. There is absolutely no reason why they should be hidden in black boxes. Law is the art of compromise, a reflection of the opinion of the majority. Article 5 of the Legislation Law stipulates clearly: “Lawmaking shall reflect the will of the people, promote socialist democracy, and ensure that people are able to participate in legislative activities through various channels.” Ensuring citizens’ participation in the legislative process is a responsibility that the legislative organ cannot evade.

     Confined by the limitations of legal statute, the constitution and Legislation Law only set forth a few principles of democratic lawmaking. Saying “ensure that people are able to participate in legislative activities through various channels” still requires the legislative organ to establish detailed regulations to put this into practice. Mere principled provisions without institutional protections mean that, after many years, “various channels” really means “no channels.”

     At a time when it has become almost routine not to publicize legislative drafts, citizens have no room for timely participation in the legislative process. They take no interest in lawmaking, which results in passed legislation that lacks legitimacy. When the legislative organ itself is passive in its implementation of the constitution and the law, how can one expect the government, legal entities, and individual citizens to observe the law in an active way?

     Lenin once said: “It would be absurd to speak of democracy without publicity.” Compared to “democratic lawmaking,” a “draft” inside a black box or “made public within a small circle” also looks rather “absurd.”

     It should be admitted that, in the last few years, the legislative organ has been opening the door wider and wider to accepting public participation in the legislative process. Back in April 2008 the Chairmen’s Council of the NPC Standing Committee decided that legislative drafts being reviewed by the NPC Standing Committee would thenceforth generally be made public, and opinions broadly sought from the public. Based on that decision, on April 20 [of that year], the General Office of the NPC Standing Committee published the full text of the Draft Food Safety Law.

     Without a doubt, the decision by the Chairman’s Council to generally make legislative drafts public has greatly strengthened democratic lawmaking and benefited the legislative debate. In fact, every legislative draft that has been made public and for which opinions have been sought in recent years has attracted positive response and participation from the public. Of course, the deepening of legislative debate means that more legislative resources are needed to collect, balance, and accommodate public opinion. Objectively speaking, it increases the workload of the legislative organ and, in reality, makes it more difficult for drafts to gain passage. The fragmentation of society means that different interest groups will have different expectations with respect to legislation. These conflicts of interest must be discovered and resolved during the legislative stage—this is actually the lowest-cost way to resolve [such] conflicts. If you wait until after a law has been unveiled, [people] don’t accept the new law because they did not participate in the lawmaking [process]. This leads directly to opposition and passive violations, both of which come at much greater cost.

     While the draft revision of the Civil Procedure Law is generating public attention, work is underway on revision of the Administrative Procedure Law. [The policy of] “generally” making drafts public should [instead become] publicity as a matter of principle. Revision of the three major procedural laws does not involve state secrets, and the legislative organ should take the initiative to make [the drafts] public. There is no need to wait for the media to begin exposing [aspects of] the drafts before being forced to act. Public speculation because of the non-disclosure of information is actually a waste of valuable social resources, and the longer legislative debate is put off, the more acute the mutual lack of trust between different interest groups becomes. The earlier you make things public, the earlier you can reap the benefits. I look forward to the day that the publication of legislative drafts becomes institutionalized and hope that two months from now I won’t be writing an article calling for the release of the Draft Amendment to the Administrative Procedure Law.

The author is an assistant professor at the Law School of Hainan University.