Feb. 13, 2017 Update: This post has been updated to clarify the range of personnel subject to supervision by the supervision commissions.
In the decision to carry out pilots programs of the state supervision system reform, the NPCSC details the composition, duties, and powers of the supervision commissions (see here for our prior discussion of this reform), as well as the legal provisions that will no longer be enforced in the pilot regions. The main content is summarized below, followed by a few comments.
An English translation of the Decision is underway at China Law Translate.
Pilots sites. The reform pilots will be carried out in Beijing Municipality, Shanxi Province, and Zhejiang Province.
Hierarchy. Supervision commissions will be established at the provincial level, and also at each of the following levels: counties (县), cities (市), and municipal districts (市辖区). Each supervision commission is responsible to and supervised by its higher-level supervision commission and the people’s congress and its standing committee at the same level.
Composition. Each supervision commission will be composed of a chairperson, several vice-chairpersons and members. The chairperson will be elected by the people’s congress at the same level, while the others will be appointed and/or removed by the standing committee of the people’s congress at the same level at the recommendation of the chairperson.
Relationship to existing institutions. The powers of the following bodies in the pilot regions will be transferred to the supervision commissions:
- Of the people’s governments: supervision departments (bureaus) and corruption prevention bureaus;
- Of the people’s procuratorates: departments that investigate corruption, bribery, dereliction of duty, and official misconduct; and those responsible for preventing official crimes.
Jurisdiction. The supervision commissions will supervise ALL persons holding public offices within the corresponding administrative regions, including [Feb. 13, 2017 Update]:
- Public servants in Communist Party organs, people’s congresses, administrative organs, political consultative conferences, courts, procuratorates, democratic parties (民主党派), and federations of industry and commerce (工商联); as well as other public servants who are managed with reference to the Civil Servant Law;
- Personnel who perform public service in organizations that administer public affairs as authorized by laws or regulations or lawfully entrusted by State organs (for example, traffic police brigades within public security organs);
- Managerial personnel in state-owned enterprises;
- Managerial personnel in State-run educational, scientific research, culture, medical and health, and sports institutions; and
- Personnel in mass self-government organizations—that is, urban residents’ committees and villagers’ committees—who manage community affairs.
Duties. The supervision commissions will have the duties to supervise, investigate, and punish (处置). More specifically, the duties to:
- Supervise and inspect persons holding public offices (公职人员) in their lawful performance of duties, fair exercise of powers, clean governance, and ethical conduct;
- Investigate and punish those suspected of corruption, bribery, abuse of power, dereliction of duty, power rent-seeking, tunneling (利益输送), playing favoritism, squandering state-owned assets, and other illegal and criminal conduct;
- Transfer those suspected of official crimes to procuratorial organs for prosecution.
Powers. The supervision commissions are authorized to take the following measures when fulfilling their duties: conducting interviews and interrogations, making inquiries and searches, freezing [assets], retrieving [data/evidence], seizing and searching, conducting inquests and inspections, appraising, and detaining (谈话、讯问、询问、查询、冻结、调取、查封、扣押、搜查、勘验检查、鉴定、留置; We welcome better translations.)
Legal provisions suspended. The following legal provisions are suspended in the three pilot regions:
- Administrative Supervision Law: Its entirety
- Criminal Procedure Law (translations courtesy of China Law Translate, subject to modifications. Relevant parts are accentuated.)
- Article 3
The public security organs are responsible for the investigation, detention, performing arrests, and pretrial of criminal cases. The people’s procuratorates are responsible for reviewing, approving arrest, investigating cases directly accepted by the procuratorates, and initiating public prosecutions. The people’s courts are responsible for trial. Unless the law specially provides, other organs, groups, or individuals have no right to perform these powers.
People’s courts, people’s procuratorates, and public security organs carrying our criminal prosecutions must strictly follow the provisions of this and other laws.
- Article 18
Unless the law provides otherwise, the investigation of criminal cases is performed by the public security organs.
The people’s procuratorate will file and investigate crimes of bribery and corruption; crimes of dereliction of duty by state workers; crimes of state workers abusing their power to effect an unlawful arrest, the coercion of confessions through torture, retaliation, or illegal searches that violate citizen’s personal rights and crimes that violate citizen’s democratic rights. When it is necessary for the people’s procuratorate to directly accept cases of state workers abusing their authority to carry out other serious crimes, the people’s procuratorate may file and investigate the crime following a decision by a people’s procuratorate of the provincial level or above.
The people’s courts will directly accept private prosecution cases.
- Article 148
After the public security organs file a case, they may use technical investigative measures, as necessary for the investigation, in cases of crimes that endanger national security, terrorist activities, mafia-type organization crimes, major drug crimes, or other crimes that seriously endanger society, upon having completed strict approval procedures.
After filing a case, the people’s procuratorates may adopt technical investigative measures to be carried out by the organ designated in regulations, as is necessary for the investigation of major corruption or bribery cases as well as for crimes of abuse of public office to violate citizen’s personal rights, upon completion of strict procedures.
With approval, the necessary technical investigative measures may be employed for the pursuit of a fleeing suspect or defendant that has been declared wanted or has been approved or decided to be arrested.
- Provisions of Part 2, Chapter II, Section II on procuratorial organs investigating the cases they directly handle.
- Article 3
- People’s Procuratorate Organic Law
- Article 5, item 2
The people’s procuratorates exercise the following powers:
(2) Investigating criminal cases they directly accept;
- Article 5, item 2
- Procurators Law
- Article 6, item 3
Procurators have the following duties:
(3) Investigating criminal cases directly accepted by the people’s procuratorates as stipulated by law;
- Article 6, item 3
- Organic Law of Local People’s Congresses at All Levels and Local People’s Governments at All Levels: Provisions of Article 59, item 5 on local people’s governments at or above the county level managing the supervision efforts within their respective administrative regions
- All other supervisory duties now carried out by administrative supervision organs will be transferred the supervision commissions.
This Decision answered some of our earlier questions. For example, the auditing offices will remain part of the people’s governments. In addition, it looks like the commissions will be able to supervise legislators, but not teachers or doctors (Feb. 13, 2017 Update: except those in managerial positions).
The state organs the most affected by this reform are clearly the procuratorates. In the three pilot regions, their powers to investigate official duty crimes will be transferred to the supervision commissions. By one estimation, this would mean a ⅓ reduction in the procuratorates’ powers (and related personnel and organizational structure).
While there will certainly be (covert) grievances amongst procuratorial investigators, others might be pleased to see them go. It’s been said that many judges would avoid rendering not-guilty verdicts in criminal cases for fear of retaliatory investigations by the procuratorates. Reports of procuratorates investigating winning criminal defendants for corruption are also not unheard of.
Indeed, giving the procuratorates the authority to investigate official duty crimes is a peculiar design by the Criminal Procedure Law. While the Law succeeded in creating unified anti-corruption forces as it intended to, it also simultaneously gave rise to formidable powers that are unchecked by others. For example, the procuratorates are responsible for approving the arrests they themselves intend to make in cases involving those crimes. Such internal checks are not rigorous enough, to say the least.
The creation of the supervision commissions will help remove a kink in the “checks and balances” in the criminal justice system. In theory, the commission will be relatively independent in deciding whom to investigate, the procuratorate will ultimately decide whether to prosecute the suspects, and the courts will determine their guilt after trial. (The Decision didn’t specify whether the Criminal Procedure Law would apply to the supervision commissions, but we think it would.)
The Decision didn’t elaborate on many aspects of the reform, however. For instance, it didn’t set forth the procedures whereby the supervision commissions are to perform their various duties and exercise their powers. We expect the authorities in the pilot regions to release much more detailed implementing measures soon. In particular, we are eager to see whether there will be any changes to the notorious shuanggui (“双规”) and shuangzhi (“双指”) practice (aka extrajudicial detentions), especially given that the latter is now expressly suspended as part of the Administrative Supervision Law. (shuanggui is governed by intra-Party regulations.)
On a related note, the just concluded NPCSC session appointed a new Minister of Supervision, a position that had remained vacant for roughly two months. Perhaps the authorities don’t intend to implement the reform nationwide any time soon, so they might as well fill the position. Elsewhere, the NPC Law Committee mentioned that the project to revise the Administrative Supervision Law to be a new State Supervision Law had been included in the 2017 NPCSC Legislative Plan.
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