China’s Xi Jinping jettisons last pretence of the rule of law

China is set to enshrine extra-judicial powers on a routine basis to cover about 100 million people.

Xi Jinping at the National People’s Congress.

China has been inching down the road to the rule of law in the past 40 years, stepping outside that route only to silence especially vexing individuals while denying it has done so.

Now it is introducing a nationwide platform of control that ­extends extra-judicial powers on a routine basis to cover about 100 million people — triggering a rare, broad-based outburst of protest from some of the country’s top legal experts.

In an exercise of defiance, lawyers have this week spoken out against a draft law to extend communist party-style interrogation into a massive new structure of anti-corruption bodies being established outside the legal system.

The National People’s Congress or parliament has revealed legislation to establish supervisory commissions to investigate any state employee accused of ­financial or moral corruption.

They will be empowered to seize officials from any level of government or any employee from any state-owned business and take them for interrogation to an unknown destination for up to six months, without access to their families or lawyers.

These commissions, which will take precedence over normal law enforcement bodies, will be an extension of the much-feared Central Commission for Discipline Inspection that has become under President Xi Jinping the strongest of all party agencies.

While focusing publicly on how it has been fighting corruption — a popular cause — the CCDI has steadily extended this remit to cover any act or even ­expressed thought it interprets as disloyal to Xi and the party.

Jeremy Daum, senior fellow at the China Centre at Yale Law School, says the mission of the commissions is broad, including not just compliance with the law, but integrity and ethics.

The CCDI has taken its targets into shuanggui, secret detention often involving torture, that persists until they sign a confession — which can be used to expel them from the party and hand them over to the legal system, with the confession usually deemed sufficient for conviction and sentencing, however obtained.

Now this campaign, widely viewed as the single most crucial element in Xi’s ascendancy over the party, which is unprecedented since the days of Mao Zedong, is going nationwide. It will cover every bus driver, bank teller, soldier, teacher and public servant. Virtually every family in the country will be potentially affected, since almost all will include someone working for some state body.

A detainee’s family is to be ­notified within 24 hours of the ­detention — but not where this may be perceived by the authorities to impede the investigation.

The CCDI says the legislation establishing the new supra-legal commissions is aimed at “turning the party’s will into law”.

What was initially perceived as an anti-corruption campaign is being institutionalised because it has become an organic element of Xi’s supremacy, which cannot be allowed to falter. “Corruption, if not curbed, will lead to the collapse of the party,” he has said.

Commissions to supervise political integrity and ethics will now be established at every level of government. Pilot commissions have been set up in Beijing and in Shanxi and Zhejiang provinces.

Shanghai’s East China University of Political Science and Law professor Tong Zhiwei, a director of the Constitutional Law Study Association of China’s Law ­Society, said the draft law should be overturned and begun again, starting from basic principles of law. “It highlights absolutist control and neglects the containment of power,” he said. “It worships ­severity and neglects the protection of fundamental rights vital for the fight of modern societies against corruption.”

The draft, he said, was little different from China’s traditional way of fighting corruption over the past 2000 years.

Beijing University professor of law Chen Ruihua said adding the supervisory commissions to the list of institutions accountable to the NPC, rather than answerable to the legal structure, violated China’s constitution.

It doesn’t even really answer to the NPC, he said, since it also ­supervises its members, and is not itself governed by law.

The process of collecting evidence is not bound by legal procedures, lawyers are not allowed to be involved in the investigation period and it does not state where the detainees will be held, “thus they will be vulnerable to torture”.

Beijing’s Renmin University law school principal Han Dayuan said at a seminar this week the draft lacked constitutional support. He said it would change China’s power structure without amending the constitution, “improperly restricting the basic rights of citizens”. Han said that “it is the NPC’s right to interpret law, party organisations don’t have that right”. It appeared that the CCDI had effectively sponsored the legislation.

Shanghai lawyer Si Weijiang said he suspected as many as 100 million people would be affected by the legislation, which ­created a “supra-legal body whose power may exceed ordinary people’s imaginations”.