Legalising Anti-Corruption Efforts in China

In 2018, the Chinese central government professed its determination to combat ‘corruption’ at a new level by promulgating the Supervision Law (SL). Distinguished from the previous campaign-like anti-corruption efforts which highlighted ‘short periods of intensified enforcement’, the new wave highlights ‘institutionalisation of the anti-corruption efforts through law’. Apart from the SL and the 2018 Constitutional Amendment, a series of supervision-related regulations and party rules were codified and accumulated to connect the formerly dual-track and dual-leadership supervisory system in China. Since 2018, supervisory commissions (SCs) from the national level down to the county level were systematically set up and became the sole supervisory organ, which has largely modified the constitutional division of powers between the People’s Congress, the executive, the judiciary, the procuratorate as well as the power of the Chinese Communist Party (CCP).

To this extent, it is inaccurate to call the SC merely a special anti-corruption agency, comparable to the Hong Kong Independent Commission Against Corruption (ICAC). Rather, as I argue in more detail in my article for World Comparative Law, it shares much in common with the hybrid type of ombudsman but lacks adequate external constraint mechanisms. Therefore, although the supervision reform in China has rationalised the anti-corruption measures in lieu of political campaigns, the superpower that the SC is endowed with is still against the Rule-of-Law (RoL) requirements and is prone to degenerate into a ‘control’ mechanism towards the low-profile officials and the civil society.

Institutional Evolution of Chinese Anti-corruption Supervision

Prior to the 2018 supervision reform, the supervisory model in modern China was a ‘troika’ system, which was composed of three main agencies: the Central Discipline Inspection Committee (DIC) of the CCP, the Ministry of Supervision (MoS), and the Supreme People’s Procuratorate and Court. All of these agencies had their counterparts at the provincial, municipal, and county levels. However, the division of tasks between them was rather entangled than clear-cut, which was due to the vague meaning of corruption in China itself. While ‘corruption’ is generally defined as ‘abuse of public office for private gains’, Chinese corruption has unique features that transcend the aforementioned definition. Corrupt behaviours in China refer not only to economic crimes, such as embezzlement, misappropriation of public funds, and bribery, but also to disciplinary corruption, namely, violation of social norms and the dereliction of duty that are damaging to public interests. In this sense, Chinese corruption can be generally divided into two categories: ‘typical’ corruption and ‘non-typical’ corruption. Respectively, the MoS and the DICs were responsible for the latter behaviours, which can be as broad as ‘unhealthy tendencies’, while the procuratorates and courts aimed to punish criminals according to the law.

Founding the SCs in 2018 thus meant combining three different institutional sources of supervision into one and entrenching an independent state organ. First, the administrative supervision system led by the MoS was wholly incorporated into the state supervision system, and consequently, the Administrative Supervision Law ceased to be effective (Article 69 of the SL). Second, part of the supervision power concerning duty-related crimes that was previously exerted by the procuratorates was transferred to the SCs. Third, the DICs were required to cooperate closely with the SCs in cases when the supervisees are public officials as well as Party members. In order to close gaps between Party disciplines and legal norms, disparate Party rules have been increasingly collected in a quasi-legal body called ‘Inner-party Laws and Regulations’ (党内法规) to enhance the consistency of their application. These foregoing changes make it clear that what is critical concerning the legalisation of this supervisory power is whether the three institutional sources of supervision can be arranged in a consistent way that conforms to the general direction of building the Rule of law in China.

New Characteristics of the Supervision Reform

Unifying the multiple agencies into one, the supervision reform brings about an important change, which is named the ‘Full-coverage’ principle (全面覆盖原则). According to this principle, all personnel managed, mutatis mutandis, by the Law on Civil Servants fall into the scope of the jurisdiction of the supervisory commission (Article 15). This officially includes state functionaries beyond employees in the public sector, such as ‘state-owned companies, enterprises or institutions’, ‘people’s organizations who are engaged in public service’, and ‘other personnel who are engaged in public service according to law’, etc.

Besides, more than being inclusive, another related new feature is that the division of the supervisory tasks becomes an internal division between different departments of the SCs. If the handlings of typical and non-typical corruption were relatively certain before the reform, the SCs now conduct investigations of both duty-related violations and duty-related crimes. While with regard to duty-related crimes, which are rigidly prescribed by the Criminal Law, there is less room to manoeuvre or to abuse the power of investigation, few attempts are made to nail down the meaning and categories of ‘duty-related violations’, which will facilitate ‘the easy reclassification of particular violations as lighter—or vice versa, as more severe’.¹⁾

In this respect, the vague term ‘duty-related violations’ has much in common with the broadly-defined ‘maladministration’ as it appears in ombudsman systems. First introduced in Sweden, the ombudsman office was designed to listen to citizens’ complaints against public officials and redress ‘injustice induced by maladministration’. Nevertheless, as the concepts of ‘injustice’ and ‘maladministration’ are in fact inseparable from the ongoing administrative process, this general definition is usually supplemented by several delineated categories of behaviours in order to delimit the jurisdiction of the ombudsman in these countries.

Compared with the ombudsman legislation, the Chinese SC model clearly lacks effective and concrete constraint mechanisms on its power. If the classical ombudsman is characterised by ‘strong procedural powers and relatively weak substantive powers’, the Chinese SCs are rather endowed with comprehensive substantive powers with weak procedural limits: they are not only granted the power to directly engage with crime investigation, but can also give enforceable orders of disciplinary punishment to all public officials. More notably, while circumstances of maladministration are prescribed through statutes in other countries, the National SC in the Chinese context is entrusted with the power to make supervision-related regulations and hence can define duty-related violations by itself. Thereby the powers to legislate, to interpret supervision-related norms as well as to supervise accordingly are all invested in the National SC, which is against the principle of division of powers in any sense.

To this extent, the Chinese SC model rather has a special affinity with a hybrid-type of ombudsman. The hybrid model initially took shape in Spain and Portugal and later spread to Eastern Europe, Africa and Latin America. Likewise, it is stretching the ombudsman’s functions in the interest of adaption to more complex social backgrounds and to indeed help in recognising the people’s ‘right to good administration’. However, this ‘hybridity’ can lead to failures or risks in maintaining the essential integrity of the ombudsman’s functions. As one of the leading scholars on ombudsman institutions, Donald Rowat, criticised, the rapid growth and expansion of the ombudsman institution would make it ‘all too easy to lose sight of … essential features of the original ombudsman system’.²⁾ This especially applies in cases where the over-empowerment of the ombudsman has disembedded him from a strictly delineated division of powers and brought about adverse effects on the legal reforms of these countries. In the following, I will particularly examine three examples that highlight this lack of external constraints in the Chinese SC model.

Institutional Pitfalls and Transitional Dilemmas

(1) Exclusionary relationship with administrative litigation

Different from the ‘overlapping’ jurisdictions of the judiciary and the ombudsman in other countries, the basis for setting up SCs in China is ‘exclusionary’ jurisdiction of the the SC. As Chapter 2 of the Administrative Litigation Law prescribes, complaints concerning rewards or punishments of public officials of the administrative agencies are not accepted by the People’s courts. Therefore, those cases regarding ‘duty-related violations’ are excluded from the jurisdiction of regular court and fall into the exclusive jurisdiction of the SCs. However, in practice, dereliction of duty will certainly infringe upon citizens’ lawful rights and interests. Therefore, excluding those cases from administrative litigation will decrease the scope of judicial redress and instigate a deviation from the Rule-of-Law project that China has been painstakingly constructing for the past four decades.

(2) The ‘unresponsive’ complaint system

Besides this lack of judicial control, another gap in the current legislation is the underdeveloped democratic accountability of the SC, especially in its ability to respond to complaints. Article 15 of the SL co-exists with Article 14 of the Regulation on Complaint Letters and Visits (2005) which dealt with the acceptance or rejection of citizens’ complaints before the 2018 reform, but improves little on the latter’s procedures, nor sets up any new rules on whether and how the SCs can refuse to respond to complaints. In other words, concerning the file categorization system that decides which department of the SCs will process citizens’ complaints or decline them eventually, ‘[n]o concrete standards or rules for such dismissals are established, no reasons are needed for the record, such decisions are neither available to the general public nor challengeable by the whistleblower’.³⁾ However, without sufficient accessibility for ordinary citizens, it is doubtful whether the SCs are set up to facilitate citizens’ external supervision over administrative agencies or merely to put public officials under higher-level administrative controls.

(3) Lack of consideration for the autonomy of quasi-public supervisees

While the SL progressively places the personnel of organs of the CCP under supervision, this law also explicitly includes the personnel of judicial organs at all levels without exceptions for anyone acting in his capacity as a member of the tribunal, which will impact judicial autonomy. Besides that, managers of those social organizations entrusted with public powers are also covered by the SL, such as public hospitals, public schools or mass organizations of self-government. Although it is certainly true that these quasi-public organizations should not be excluded from public scrutiny, it becomes problematic as the SL does not further differentiate the means of supervision for specific supervisees. Thus, a tendency to stretch the scope beyond proper boundaries can be constantly observed. For example, the dispatched supervisors to public schools can also observe the contents of the textbook and the teachers’ professional behaviours. Such unbounded supervisory power not only infringes on the supervised social organizations’ ‘autonomy’ in managing their daily affairs, but it is also questionable whether the dispatched supervisor is equipped with sufficient knowledge to deal with specific issues that require expertise.

A Watchdog to Keep an Eye on

To conclude, some significant pitfalls are implied in the Chinese supervision reform, which was initiated in a premature environment. The widespread corruption of public officials, the lack of means of complaints, the ineffective administrative litigations and the urgent need to improve human rights protection in an increasingly complex society, all contributed to the establishment of the SCs in China. Nevertheless, these multi-layered expectations have driven the commission to outgrow its original design as a special anti-corruption organ and turned it into an independent ‘fourth’ power. Not only are more powers conferred on the SC than on the classical ombudsman, but the high expectation for it to miraculously redress all problems associated with political transformations has turned it into a superpower over other state organs. To some extent, it can therefore be compared to the equally problematic hybrid type of ombudsman born in other contexts of transitional justice.

We should pay close attention to the risks that exist in this ‘over-empowerment’. The integrity of supervisory bodies needs to be sustained with the support of other democratic mechanisms, such as judicial independence, enactment of the Administrative Procedure Law, and an effective complaint system. All these solid bases for the proper functioning of the supervision system are nonetheless lacking in the case of the SC. This shows that political transformations solely reliant on supervision reform are destined to be hard and risky and are likely to result in a deviation from the RoL project that has been built in China over the last forty years.