How China’s new anti-graft super body will work, and why calling a lawyer won’t be an option
Anti-corruption law to come into force next year likely to make denial of legal counsel the norm
When five China-based executives of British pharmaceuticals giant GlaxoSmithKline (GSK) – a Briton and four Chinese nationals – were found guilty in 2014 of bribing doctors to use its drugs, Beijing portrayed it as a symbolic case that upheld the dignity of the law.
But it was viewed somewhat differently by Shi Fulong, a lawyer based in Changsha, Hunan province, who represented another GSK employee detained in the investigation.
“They said it was a large-scale bribery case so they rejected my requests to meet my client,” said Shi, whose client, a Chinese national, was eventually released without charge.
“The law gives the authorities the power to reject lawyers’ requests for meetings with their clients on such grounds,” he said. “Very unfortunately, that power is usually abused.”
A new anti-corruption law, expected to come into force next year, looks likely to make denial of access to a lawyer the norm in such cases. According to a draft of the bill, it will give Chinese graft-busters the legal grounds to detain any individual suspected of involvement in corruption for months – including those suspected of giving or receiving bribes – and block their access to lawyers during their detention.
The national supervision law, released in draft form on November 6 and expected to take effect in March, will establish a new anti-graft super body – the national supervisory commission – and give the commission and its local branches special detention powers when targeting corruption suspects.
There could still be minor adjustments to the draft bill, which is open for public comment until December 5, but senior officials have spelt out that suspects subject to the new form of detention, known as liuzhi, will not have the right to meet lawyers and that the duration of their detention will be at the sole discretion of the commission or its local branches.
Members of the foreign business community in China and legal scholars have warned the new law could result in further abuse of power.
“This is a worrisome trend and would be frowned upon by the foreign business community,” said James Zimmerman, the office managing partner at international law firm Sheppard Mullin’s Beijing office and a former chairman of the American Chamber of Commerce in China.
“The right to counsel and judicial oversight are critical components of a modern, developed legal system and very much necessary to check potential abuses by the authorities. Any form of prolonged detention without the right to counsel is a step in the wrong direction.”
Beijing has expanded its war on corruption to those giving bribes, including foreign businesses, in recent years. The GSK case, which saw the company hit with a record three billion yuan (US$488 million) fine, was among the most notable.
Chinese legal scholars said that if a similar case occurred after the enactment of the national supervision law, the suspects could be placed under liuzhi, which has been officially translated as detention but is literally somewhere between detaining and impeding. And the net will be cast wider, with the bill broadening the definition of corruption to include paying bribes to government officials, executives of state-owned enterprises, judges, doctors, professors and anyone on China’s public payroll.
“The concept of liuzhi is of concern because it seems to extend the features of shuanggui [a Communist Party disciplinary measure] to non-party persons, denying such persons the limited protections of the Criminal Procedure Law during the course of an investigation for criminal liability,” said Lester Ross, a lawyer in the Beijing office of American law firm WilmerHale and a former head of the American Chamber of Commerce in China’s policy committee.
“This should be of concern to citizens of China as well as citizens of foreign countries and their employers.”
For decades, the party’s powerful anti-graft watchdog, the Central Commission for Discipline Inspection (CCDI), has used shuanggui – a secretive process that literally means confessing matters at a certain time at a certain location – to hold suspects for months without charge, while not being answerable to any law. It has been the main tool used in tackling corruption in the world’s second largest economy since President Xi Jinping launched his signature war on graft in 2013.
But shuanggui, which has been slammed by legal scholars and activists as fertile soil for the abuse of power, will finally come to an end in March, when anti-graft investigations will be subject to the new law.
State media say the legal basis of liuzhi will solve a “long-pending legal dilemma”.
The draft of the new supervision law does not explicitly ban detainees’ access to lawyers, but Beijing has made it clear that the new supervisory commissions will not be answerable to the Criminal Procedure Law, which grants suspects such rights in cases involving the police, prosecutors and courts.
An article posted by the CCDI’s official social media account in July said the principle of the party leading the country’s legal system needed to be firmly upheld, warning against “the trap of law” and the “the trap of democracy”.
The special treatment was necessary for investigations to be “effective”, said Zhejiang province anti-graft chief Liu Jianchao, who has headed one of three provincial supervisory commission pilot programmes.
“If he’s a member of the Communist Party, we still need to call him a comrade during the detention,” Liu said while attending the party’s national congress last month. “These are not criminal or judicial arrests and they are more effective … he could meet a lawyer after he is handed over to the prosecutors. ”
Liu said the approval process for liuzhi was more stringent than that for shuanggui, and it would only be approved if an investigation might lead to suicide, collusion or other undesired outcomes.
But the new law also says liuzhi does not need to be approved by prosecutors – as is the case with arrests by the police – or anyone other than the supervisory commission.
Jiang Mingan, a law professor at Peking University frequently consulted by the authorities on anti-corruption legislation, said limiting detainees’ access to legal counsel owed much to the extreme difficulty of collecting evidence in corruption cases.
“These cases are heavily dependent on the suspect’s confession,” Jiang said. “If he remains silent under the advice of a lawyer, it would be very hard to crack the case.”
However, Jiang said the way liuzhi broadened the targets of the anti-corruption crackdown fuelled fears of further abuse.
“I think the detention of potential bribe payers should be applied very cautiously and the requirements should be higher than for those on the receiving end,” he said. “There should be plenty of evidence before they do that and I think that should be added to the law.”
Jiang said other flaws in the new law included its lack of clarity on the approval procedure for liuzhi and the prevention of sleep deprivation, which has been used to put pressure on detainees to confess. He also said that while people could sue the police or other government departments if they broke the law, there were no such legal grounds for someone to sue the commission.
The national supervision law is expected to give the commission and its local branches unprecedented investigative powers, but apart from the ban on legal counsel, liuzhi looks a lot like criminal detention.
Evidence gathered during liuzhi, like that from criminal investigations, will be able to be presented in court, the draft bill says, and time spent in liuzhi could be subtracted from jail terms following conviction.
The commission will be able to order the police to make public appeals for information, ban travel by suspects and use technology such as wiretaps to aid investigations.
The national commission and its local branches will also rank highly in the political hierarchy. In the
three pilot programmes, the supervisory commissions have been headed by the party’s provincial anti-graft chief, and new Politburo Standing Committee Zhao Leji, who succeeded Wang Qishan as head of the CCDI last month, is expected to head the national supervisory commission.
“The police were already a very strong player in the political landscape, with very few detainees found to have been innocent,” said Shi Pengpeng, a law professor at China University of Political Science and Law in Beijing.
“The anti-graft chief is seated in the [Politburo] Standing Committee, making the commission’s rank higher than that of the police. Its supervision powers cover all judges and prosecutors. My concern is there won’t be effective constraints on its power.”
Further swinging the balance against the prosecutors is the fact that under the new law, charges can be dropped only if the supervision committee grants its approval to do so.
The new commission will integrate the anti-corruption powers of bodies including the CCDI, the State Council’s Ministry of Supervision, the Supreme People’s Procuratorate’s anti-corruption bureau and the National Audit Office, and will be given more independence, operating parallel to the cabinet, legislature and supreme court.
State-controlled media have praised it as an “integrated and effective” institution to fight corruption, with some comparing it with Hong Kong’s Independent Commission Against Corruption (ICAC), which has been credited with protecting clean governance in the city for more than four decades.
However, former ICAC investigator Lam Cheuk-ting said the two graft-fighting bodies were not comparable.
“I don’t think that [liuzhi] is a common practice in countries that respect the rule of law,” said Lam, now a Democratic Party lawmaker in Hong Kong. “I think the right to legal counsel is a basic human right.
“The success of the ICAC in the past decades has not been dependent on one institution alone, but also on judicial independence and press freedom to supervise and balance. But I don’t see that on the mainland now.”