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By Elizabeth M. Lynch, October 16, 2017

Every five years, the Chinese Communist Party (CCP) holds a Party Congress, a week-long, rather formulaic meeting of Party members that is more about palace intrigue — who in the Party advances, who is left behind — than it is about anything substantive.  At most, broad policies for the direction of the Party, and hence direction of the country in this one-party state, are announced.  The world media usually looks on with feigned interest.

But, as the CCP opens its 19th Party Congress this Wednesday, this year will be different.  For the first time, the Party Congress comes as China’s global star is truly on the rise, with the United States pretty much on retreat in the region, at least as a reliable, predictable partner. As a result, the future of China’s leadership has become more important to the world, especially as the current leader, Xi Jinping, seeks to consolidate his power.

Since taking over leadership of both the Party and the State in 2012 and 2013 respectively, Xi has moved China’s governing model away from the collective Party approach of his immediate predecessors, an approach where he would merely be the first among equals; an approach that was largely put in place in response to the excesses of the one-man leadership of the Cultural Revolution. Instead, with Xi, all power increasingly resides with him and he has sought to fill the inner rankings of the Party with his supporters.

Party Man Wang Qishan (Photo Courtesy of the Epoch Times)

In that regards, this week’s 19th Party Congress will largely be watched to see who will replace five members of the seven-member Standing Committee of the CCP’s Politburo, each of whom will hit the retirement age of 68.  Who takes over the reins, and whether they are considered Xi’s people, will foretell the depths of Xi’s power over the Party, and thus the state. But it is the future of one person on the Politburo Standing Committee that will be most revealing: Wang Qishan, the current Secretary of the Party’s Central Committee for Discipline Inspection, the committee responsible for policing Party members.  Wang, who is already 69, should be replaced during this Party Congress under the Party’s unwritten rule of forced retirement at the age of 68.  But there is speculation that this rule will be broken so that Xi can keep his right-hand man on his anti-corruption campaign, a campaign that for sure has exposed corruption at the highest levels but has also allowed Xi to easily purge his rivals. If Xi is willing to break this unspoken rule for Wang, then there is good chance that in five years, he will break the rule for himself and continue on for an unprecedented third term as Party head and Chairman of the Central Military Commission, the two posts that hold real power in China.[1]

But the other thing to watch for at the 19th Party Congress is Xi Jinping’s doubling down on his anti-corruption campaign.  And not just because Xi has used the campaign to purge high-level officials who he considers a threat to his one-man rule — think Bo Xilai, Zhou Yongkang,and now, Sun Zhengcai, a man slated to be Xi’s successor until he was expelled from the Party. Instead, the anti-corruption campaign has been an affront to the rule of law in China.  Expect the 19th Party Congress to signal the codification of the abuses of Xi’s anti-corruption campaign.

Currently, the anti-corruption campaign is largely conducted through the Party’s Central Commission for Discipline Inspection (CCDI), a commission ostensibly responsible for investigating Party members’ violation of Party rules and of which Xi’s right hand man, Wang Qishan is still the head.  Theoretically, the police and procuratorate are responsible for investigating and prosecuting any corruption or bribery that rises to the level of a crime.  But in practice, the police, prosecutor and courts are a mere after thought to the CCDI.  That is largely because, outside of the confines of the law, the CCDI is able to secretly detain Party members, deny them access to a lawyer and interrogate them in secret locations.  According to Human Rights Watch, torture and ill-treatment during these secret Party detentions, known colloquially in China as shuanggui, are prevalent.  Instead of there being two separate systems, the Party and the State, the two are intertwined according to HRW: the prosecutor is a part of the shuanggui process, using the confession obtained through that investigation in the prosecution of the case.  In the Bo Xilai case, Bo attempted to retract his confession at his trial, stating that it was made under duress.  In the end, the court ruled against him and he received a life sentence on charges of corruption and bribery.

Bo Xilai on trial in 2013

But having the shuanggui system in place, a system that exists in the shadows of the law, has not been enough for Xi.  Last November, the Party announced a new pilot program for Beijing, Shanxi and Zhejiang provinces where the Party would create a new government body, a Supervision Commission.  As the Party doesn’t really have the full authority to create new governmental bodies, a month later, the Standing Committee of the National People’s Congress (NPC), adopted the Supervision Commission pilot project.  That Supervision Commission would be the sole entity responsible for corruption and bribery by Party members, state officials, the legislature, the courts and state employees, taking away that responsibility from the Procuratorate and the Anti-Corruption Bureau.  The Supervision Commission will also have the power to interrogate and detain individuals as well as freeze their assets; it is unclear what role the courts will play – if any – in oversight of the Supervision Commission’s broad powers.  According to Prof. Zhiqiong June Wang, while much is still unknown about these Supervision Commission, what is known is that they will share personnel with the Party’s CCDI.  Prof. Wang anticipates that the NPC will seek to adopt the pilot project nationwide in March 2018.

Corruption is a serious problem in China  and there might be an argument that bringing the anti-corruption campaign into a strong, unified government body will be good for transparency and legal protections for the suspects, something that is currently ignored by the CCDI.  But the question remains – will codifying this campaign bring it out of the shadows of the CCDI or will it just bring more shadows to the law?  It seems like the latter is the more likely outcome.  First, even if the Supervision Commission were to follow the law, China’s Criminal Procedure Law (CPL) still allows the Commission to legally hold suspects incommunicado under “residential surveillance at a designated location” for six months without access to a lawyer.  This is because the provisions of  the CPL that the police currently use to do this to political activists under the guise of national security – Articles 37, 73 and 77 – apply where there are suspicions of “especially serious bribery.”  In a way, the CCDI’s methods have already been codified – and are actively being used with little reprimand – in the current CPL.

And with Xi only consolidating his power further at the 19th Party Congress, don’t expect there to be any divergent voices – anyone who cares about the Party and the government being subject to the law – in the Supervision Commission. The Party-State being subject to the law is not really Xi’s thing.  As if to demonstrate this further, this past weekend, the current head of the Ministry of Justice, Wu Aiying, was expelled from the Party.  Who replaced her as Justice Minister?  Zhang Jun, a former deputy chief of the CCDI.

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[1] China’s Constitution limits the President, a state position, not a Party one, to two terms.  But it is the two Party positions where real power lies.  Deng continued on as China’s paramount leader as a force within the Party.

* Hattip to Jeremy Daum at China Law Translate for the title pun.

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By Elizabeth M. Lynch, March 22, 2012

I Pledge Allegiance....

In its ongoing efforts to tie the Chinese legal profession as tight as possible to the Chinese Communist Party (CCP), China’s Ministry of Justice (MOJ), the government agency that oversees the legal profession, announced its new initiative on Wednesday: every new lawyer in China must pledge allegiance to the CCP.

Lawyers’ oaths are not unique to China: almost every state in the United States requires newly-admitted attorneys to recite an oath to uphold the Constitution and the laws of the state.  And this is not the first time that a lawyers’ oath has been required in China.  In 2000, the All China Lawyer’s Association (ACLA), the national bar association that all lawyers must be members of, first instituted an oath of office for all lawyers.  But in a Wednesday Legal Daily interview with an unnamed MOJ official, the MOJ determined that the ACLA oath was too general and ineffective.  As a result, the MOJ issued a new oath that must be sworn to in a formal ceremony (translation courtesy of Siweiluozi Blog):

“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!”

Compare this with the New York State oath taken by newly-admitted lawyers:

“I do solemnly swear that I will support the Constitution of the United States, and the New York Constitution, and that I will faithfully discharge the duties of the office of attorney and counselor at law of the Supreme Court of the state of New York according to the best of my ability.”

There are aspects of the Chinese oath that are laudable: to be professionally honest, to be corruption-free, to serve the people, and to properly implement the law.  All of these requirements are ostensibly value-neutral and are good for the profession.  But what is decidedly different between the New York oath and the China one is that allegiance to the CCP is required.  According to the MOJ official, this was intentional.  One of the major reasons that the MOJ issued the new oath was to increase the quality of lawyers’ political thought as well as their professionalism.

That alone would not necessarily be problematic in a country where the Party is the State and let’s face it, people take oaths all the time and rarely listen to or abide by their words.  But this new oath comes in the midst of a major crackdown on China’s public interest lawyers and presumably will be used as a warning signal to this portion of the profession.

The CCP’s Increased Use of Socialist Rhetoric to Police Lawyers

Last fall, I published a law review article discussing the use of increased socialist rhetoric to step up the CCP’s control of China’s growing public

The Three Supremes

interest lawyers (China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law).  The beefed-up socialist rhetoric began quietly with a speech given by President Hu Jintao at a Chinese Communist Party conference in December 2007.  In his speech, Hu announced the doctrine of “the Three Supremes:” “always regard as supreme the Party’s cause, the people’s interest, and the Constitution and laws.”

Although initially unclear if the Three Supremes were listed in hierarchical order and if the doctrine was even applicable to lawyers, Justice Minister Wu Aiying addressed the issue in August 2009.  Calling upon lawyers to “above all obey the Communist Party and help foster a harmonious society”(emphasis added),Wu stressed the need for lawyers to “pay attention to politics, take into consideration the big picture, and observe proper discipline.” Absent is any mention of “law” or the need to develop the institutions—such as an independent judiciary or a competent legal profession—integral to a rule of law society.

Further confirmation of this shift in rhetoric is found in the October 2008 MOJ pronouncement opening the new government-sponsored campaign of lawyers as “Chinese-style socialist legal professionals.”  In 2010, the MOJ went further with its rhetoric by directly stating the need for greater Party leadership of the legal profession.  In an interview with an unnamed MOJ official, the Legal Daily reported the forthcoming pronouncement of MOJ “Opinion Regarding the Further Strengthening and Improvement of Lawyers’ Work.” Like prior pronouncements, the 2010 MOJ Opinion contains flowery language detailing the need for lawyers to “always hold high the banner of socialism” and to “strengthen [their] political thought.”  But unlike previous statements, the 2010 MOJ Opinion candidly states the role that the Party will play in leading the legal profession.

Through the Party and the MOJ, the 2010 MOJ Opinion states the need for daily supervision and management of the profession, the need for standardization in how cases are handled, and the need to consider “political quality,” “professional quality,” and “ethical quality” in the yearly license renewal procedures

The CCP Re-institutes Party Cells

Party Cells in Law Firms....How Retro!

Finally, the CCP – as reported in a Legal Daily article – has successfully infiltrated most law firms, instituting Party cells in a throwback to the Cultural Revolution days when loyal party members set up “cells” within each work unit to guarantee the proper political ideology of the workers and to report any infractions in thought to the local Party.  While the 1980s saw a decline in Party cells, a 1995 Party Opinion called for the creation of more Party organizations within law firms.   In 2002, President Hu Jintao stressed that the legal profession could only become strong through Party leadership.  But in general, such efforts were met with strong resistance from the profession and law firms largely ignored the directives. However, all of that changed in 2008.

In March 2008, the CCP’s Organization Department and the MOJ’s corresponding Party organization issued a joint opinion announcing the need to improve and strengthen the Party apparatus in the legal profession. As if to indicate to the legal profession that this time the Party was serious about a greater Party presence in law firm life, Justice Minister Wu Aiying declared in July 2008 that more Party cells needed to be created within law firms as a way to better indoctrinate the profession.  This effort has largely succeeded.  Between April 2008 and April 2009, the number of Party cells found in law firms more than doubled.  Today, over 90 percent of all law firms in China maintain a Party cell.(all information can be found in the Legal Daily article).

The Oath Fits the Pattern of Greater CCP Control Over the Legal Profession

In 2007, China amended its Law on Lawyers, ostensibly to give greater independence to the profession.  As my article China’s Rule of Law Mirage points out, on paper, the amendments did in fact give the profession greater control and reduced the supervision of the MOJ.  However, as the article goes on to demonstrate, as public interest lawyers have had more success in their cases, the CCP has exerted greater control of the profession, undermining whatever promises of greater professional independence that is found in the 2007 Law on Lawyers.

Ironically, and as if to give the new oath requirement some sort of semblance of legality, the unnamed MOJ official in Wednesday’s Legal Daily interview attempts to argue that the new oath requirement is in-line with the edicts of the 2007’s amended Law on Lawyers.

Nothing could be further from the truth.  Compared to recent CCP pronouncements, the 2007 Law on Layers is largely devoid of Party allegiance.  Article 1 does require a commitment to a “building of a socialist legal system” but that is sort of like requiring U.S. lawyers to assist in building a democratic legal system.  Additionally, the new structure of law firms and the establishment of solo practitioners were both perceived as an effort of MOJ to relinquish some of its supervisory role in exchange for greater supervision by the bar associations (see China’s Rule of Law Mirage for a more detailed explanation of these provisions).

But MOJ’s new oath, which overrides ACLA’s oath, reflects its effort to maintain control of the profession.  And its requirement that lawyers pledge allegiance to the CCP is eerily reminiscent of Nazi Germany where lawyers took a similar Party allegiance oath: “I swear to remain loyal to the Fuehrer of the German Reich and people, Adolf Hitler, and to fulfill conscientiously the duties of a German attorney, so help me God” (See Matthew Lippman, Law, Lawyers, and Legality in the Third Reich: The Perversion of Principle and Professionalism, 11 Temp. Int’l & Comp. L.J. 199, 218 n. 185 (1997)).

Ultimately, the oath won’t impact the daily work of most of China’s lawyers.  In fact, it is only applicable to new lawyers or those who are re-applying for their licenses (首次取 得或者重新申请取得律师执业证书的人员); MOJ’s announcement makes no mention of its applicability to current lawyers at their yearly re-registration (年度注册); presumably current lawyers will not be subject to the oath.  But in a society where rhetoric has served as important signaling device as to what behavior is politically acceptable, the new oath could potentially have a chilling effect on current public interest lawyer’s work and could discourage new lawyers from representing individuals and issues that are perceived as politically dangerous.  It’s this chilling effect of the new oath that is the greatest threat to a rule of law in China.