Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Saturday, July 5, 2014

Discipline Inspection Commissions and shuanggui detention

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Here's a pair of articles from the Washington Post [first | second] on the Communist Party's Discipline Inspection Commissions and the practice of shuanggui ("double designation") detention. This remains a timely subject, since Xi Jinping keeps saying he wants to enhance the rule of law in China, but relies heavily on the utterly unlawful institution of shuanggui for his anti-corruption campaign. I say "unlawful" because both the Chinese Constitution and the Law on Legislation state clearly that any restriction of personal liberty - that is, detention of the body - must be authorized "by law", which means in this context a statute passed by the National People's Congress or its Standing Committee. No such statute exists authorizing detention under the Party disciplinary system.

Interestingly, defenders of the system do not generally argue that it is lawful. (I have heard a couple of foreign analysts argue that is is lawful on the grounds of a fictional deemed consent by Party members to be shuanggui'd; it is not, however, an argument that Chinese defenders of the system have generally tried to make in the research that I've done, and one prominent scholar who defends the system called it "牵强" (forced). ) Instead, they respond that it is necessary. This has never struck me as a convincing excuse for its unlawfulness; given that the Party controls the legislative process, it is hard to understand why after so many years it would be unable to have the appropriate authorizing statute enacted if it wanted. I can think of only two plausible reasons for not enacting an authorizing statute: (1) Party leaders are so used to doing what they want unrestrained by law that it has simply never occurred to them that legislative authority might be necessary; or (2) the Party leadership is deliberately sending a signal that the Party is and will remain above the law. The first reason actually doesn't seem very plausible after so many years of discussion of shuanggui and its inadequate legal basis, so my money is on the second.

Incidentally, the best work on the shuanggui system to the best of my knowledge remains that of Flora Sapio, originally promoted here back in 2008. I still recommend it.

http://lawprofessors.typepad.com/china_law_prof_blog/2014/07/discipline-inspection-commissions-and-shuanggui-detention.html

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Comments

I agree that Flora's work is first rate. I wonder, though, whether there are other arguments that might suggest that shuanggui is subject to normative constraints the principles of which are embodied in the Constitution, and that those constraints must be expressed in rules that must be followed consistent with those normative constraints, but that does not include the legal regimes that follow from the constitution itself.

Posted by: Larry Backer | Jul 6, 2014 1:54:56 PM

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