Behind its bureaucratic title, China’s new Supervision Law poses a systemic threat to human rights.
A threat to human rights
The law places millions of people at the mercy of an extra-judicial system without the most basic safeguards to protect an individual’s liberty and security.
The government has said the new system advantageously replaces the widely criticized and largely informal shuanggui system - an internal disciplinary system of the Chinese Communist Party.
Yet it not only fails to address the defects of that arbitrary system which operated in the shadows, but it goes further in expanding powers that are rife for abuse.
The law’s significance goes far beyond fighting corruption within the Chinese Communist Party. It is also intended to investigate embezzlement and bribery as well as dereliction of duty, and other crimes which involve an abuse of public office.
The supervisory commissions can investigate anyone considered to be performing public duties, including judges, legislators, academics and managers of state-owned enterprises.
The far-reaching powers of the new commissions under the liuzhi (retention in custody) system are frightening. The commissions can detain, interrogate, and collect evidence without any external oversight. There are no provisions for suspects’ access to legal advice in the investigation stage. Even the scant detention notification requirements can be ignored if the commissions determine it could “impede the investigation”.
The result is that suspects can end up in arbitrary and incommunicado detention for up to six months. The use of “residential surveillance in a designated location,” a similar provision in China’s Criminal Procedure Law, has resulted in numerous reports of torture and other ill-treatment. This is a clear example of what happens when safeguards are omitted from the law.
The Supervision Law legalizes extra-judicial detention without any meaningful oversight, increasing the risks of torture or other ill-treatment and forced “confessions.”
The Chinese legal system overly relies on “confessions” as the bases of most convictions, providing an almost irresistible incentive for law enforcement officials to obtain them by any means.
The only hope for redress in the system is to apply for re-investigation to the same commission that made the decision in the first place. The final chance is to appeal to the commission immediately above that. There are no other checks and balances.
Ahead of the law being passed, the National People’s Congress (NPC) adopted an amendment to the Chinese Constitution to set up the national-level Supervisory Commission, which places it even above the Supreme People’s Court and the top prosecutor’s office.
This reflects a radical departure from decades of efforts undertaken since the end of the Cultural Revolution to “rule the country according to law,” no matter how incomplete the implementation of this principle was.
When the Supervision Law was first proposed last November, Amnesty International urged the government in a formal submission to the NPC to withdraw the draft bill, highlighting the raft of clauses that were not compatible with international human rights law and standards – or even with China’s own Constitution.
The law passed today contains some modest improvements on paper but the fundamental flaws remain.
Systemic corruption in a country or institution can undermine the rule of law and weaken the framework for protection of human rights. Tools to address corruption include transparency, accountability, strong and independent oversight mechanisms.
The Supervision Law is diametrically opposed to such principles. It codifies a secretive and arbitrary detention system without safeguards that poses a significant threat to human rights.
Nicholas Bequelin is East Asia Director at Amnesty International.