1. State and Party in the Scientific Development of a Legitimate Rule of LawConstitutional System in China: The Example of Laojiao and Shuanggui Larry Cat Backer / W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania StateUniversity. The author may be contacted at lcb911@gmail.com.

2. Introduction Two distinctive Chinese disciplinarysystems Laojiao and Shuangguiare commonly criticized as anti-constitutional and against the rule oflaw Examine the development ofconstitutional rule of law theory withChinese characteristics byconsidering its application in Laojiaoand Shuanggui. 3. The Basic Outline1. Brief overview of laojiao andshuanggui.2. Current criticisms of laojiao andshuanggui3. Review Laojiao and Shuangguiwithin the context of the Chineserule of law constitutional order.4. Propose ways which the Shuangguisystem may benefit from scientificdevelopment under Chinas rule oflaw constitutional system.31. 2. 3. 4. 4. *PicturefromJasonLee,LaojiaoSystemtobePhasedOut,BeijingShots,Jan.21,2013Laojiao / Laojiao is an administrative detention system, literallytranslated as re-education through labor. Laojiao received its present name from the 1957ordinance Resolution on Approving the Decision of theState Council on the Issue of the Reeducation throughLabor , which is the principle document providing thelegal basis for the laojiao system. Laojiao targets those individuals who have committedminor offences that do not amount to criminalliability. It is an compulsory administrative penal systemwhich seeks to reform and correct thoseindividuals through forced labor and detention. 1957 5. *AphotographofShayangRe-educationThroughLaborcampinHubeiprovince,fromthearchivesoftheLaogaiMuseumLaojiao / (cont.) Public criticism of the laojiao system has beenincreasing, especially in light of recent cases of abuseof the administrative detention provisions by localofficials. On Jan. 2013, Meng Jianzhu, Secretary of the CentralPolitical and Legal Commission announced during theNational Conference that the re-education throughlabor system will be terminated by the end of this yearupon approval from National Peoples CongressStanding Committee. On Feb. 2013, Yunnan provincial governmentannounced that Yunnan would no longer approvelaojiao cases on grounds of threatening nationalsecurity, petitioning by causing unrest, and smearingthe image of officials. 2013 6. *FromCPCCentralCommissionforDisciplineInspectionholds8thplenumShuanggui / Shuanggui is commonly understood as a specificprocedure for cadre discipline under regulationsadopted by the CCP. It is a important instrument tocombat corruptions in China. The term shuanggui, roughly translated as doubledesignations, is derived from Article 28, section 3of the Investigation Regulations for the DisciplineInspection Organs of the CCP, which requiressuspected cadres to answer questions and clarifyissues at designated duration and designated place. Shuanggui is an intra-Party disciplinary mechanismthat only applies to the CCP member. For non-CCPmembers who work for the governments or stateowned enterprises and violates administrativedisciplines, the rule of Liangzhi will apply. CCP 7. Criticisms Against Laojiao and Shuanggui Both laojiao and shuanggui have come underincreasing criticism in China as well as in theWestern press. Laojiao has been widely criticized as irremediablyin conflict with both constitutional protectionsaccorded individuals and with a number ofgeneral laws adopted by Chinese stateadministrative organs. Though many acknowledge Shuangguis functionin combat corruptions, it has been criticized asextra-judicial because it is not administered bystate judicial organs. Recently Chinese authorities have indicated anintention to reform or perhaps abolish thelaojiao system. There has been no indication ofany intention to change the shuanggui system.7 8. Constitutional Analysis (part 1)Article 100 of the 1954 Constitutionstipulates that: Citizens of the PeoplesRepublic of China must abide by theConstitution and the law, uphold disciplineat work, keep public order and respect socialethics. (Article 100 became Article 53 in thecurrent 1984 Constitution, with almostidentical language)Article 53 deals with the duties of thecitizens, it does not explicitly provide meansfor the state to exercise judicial authority.The 1957 Resolutionprovides that the laojiaosystem was adopted Inaccordance with Article100 of the Constitution ofthe Peoples Republic ofChina, for the purpose ofreforming those idling,law-breaking, discipline-breaching, duty-neglectingbut work-capableindividuals into self-reliantpeople of new workethic.Article 89 of the 1954 Constitution providesthat: Freedom of the person of citizens ofthe Peoples Republic of China is inviolable.No citizen may be arrested except bydecision of a peoples court or with thesanction of a peoples procuratorate.Article 37 from the 1982 Constitution alsoconfirmed the due process requirementfound in the 1954 ConstitutionAs the laojiao process iswithout judicial reviewand completelybypasses state judicialorgans , the 1957Regulation contradictsprovisions from both1957 and 1982 versionsof the ChineseConstitution:854845454195754 19575482 9. Constitutional Analysis (part 2) While both laojiao and shuangguibypass formal judicial process,shuanggui is a narrowly-appliedintra-CCP discipline system thatonly targets Communist Partycadres. Laojiao, on the other hand,functions as a pervasiveadministrative penal system thattargets the general public.Being a revolutionaryparty, the CCP-ledgovernment in itsnascent years adoptedharsh measures againstits political opponents.Those temporarypolitical measures havebeen institutionalizedinto two uniquedisciplinary systemslaojiao and shuanggui.The Mass Line is a founding principle forthe CCP, it expresses the need for the Partyto stay connected with the general public byboth adequately serving and representingthe interest of the masses.The Mass Line mandates the CCP to form agovernment for the people, through thepromulgation of a written constitution.Being an extra-judicial penal system thatdirectly targets the masses, the laojiaosystem contradicts both the Constitutionand the Party line of the CCP.The laojiao systemnot only violatesconstitutionalprinciples, it is alsocontrary to the CCPsMass Line.9 10. Constitutional Analysis (part 3) Under the Chinese constitutional order,the CCP is the repository of politicalpower, and the state organs fulfill theadministrative function. Chinese Constitution could be understoodas establishing an administrativeapparatus under the leadership of the CCPand its multi-party coalition.CCP does not enjoy anextra-constitutional rolein Chinese politicalorganization, but it doesexist autonomously fromthe state. State organs,under the constitutionthat established themand defined theirpowers, are understoodto be required to acceptthe leadership role ofthe CCP. The result: government under StateConstitution, and the CCP under theParty Constitution. State Constitution directly binds thegovernment, but does not bind the CCP. The CCP is bound by its party line andits own Party Constitution. The State Constitution is an expressionof the Party line.Fundamentalseparation ofpowers political(CCP) andadministrative(State organs) differfrom West, whereall power is in stateorgans and dividedinto executive,judicial, andlegislative functions10 CCPCCP CCP --- 11. Constitutional Analysis (part 4) Traditional constitutionalist analysistends to focus only on the ChineseState Constitution, while the legitimacyof the shuanggui system is found in theParty Constitution and other unwrittenconstitutional elements.The legitimacy of theShuanggui must beunderstood within thecontext of the ChineseParty-stateconstitutionalism,where both the Stateand Party constitutionsare part of theconstitutional order. The leadership role of the CCP overstate organs implies the need todiscipline Party cadres through the CCPstructure. The state judicial organs have nojurisdiction to discipline Party cadresfor the violations of CCP rules underthe Chinese separation of powersprinciple.Under the Chineserule of lawconstitutionalism,shuanggui is alegitimate expressionof the CCPsconstitutional power,as long as it isadministered properly.11 12. The Operation of the Shuanggui SystemShuanggui operates in accordance with the InvestigationRegulations for the Discipline Inspection Organs of theCommunist Party of China, adopted by the CCDI in 1994:Article 1: The purpose of this ordinance is to standardizeand institutionalize the case examination process. Thisordinance is formulated in accordance with the provisions ofthe Constitution of the Communist Party of ChinaArticle 6: Case examinations shall rely on the Partyorganizations at all levels to follow the mass line...Article 8: During the examination process, the rights of theParty membersmust be guaranteed in accordance with theprovisions of the Party Constitution.Article 9: Case examinations should implement a gradedmanagement system, where each level shall be responsiblefor its delegated duties.1994 12 13. The Operation of the Shuanggui System (cont.)13Hearing Referral (Art.40-44)Investigation (Art. 23-39)Article 28 (The Shuanggui Article): Theinvestigation team shall have the righttodemand relevant individuals appear at adesignated time and place to provideexplanations regarding all aspects of the case;Article 32: The confirmation of disciplinaryviolation must be backed by sufficient andcompelling evidence. Confession by the partyunder investigation alone without any supportingevidence is inadequate to confirm the violation.Article 37: During the investigation, if it is foundthat the Party member has breached criminal lawin addition to violating Party discipline, the casematerial of that Party member shall be forwardedto the relevant judicial authority.Case-Filing (Art.16-22)Article 17: Graded case-filing shall be used for disciplinary violations committed by Party members.Preliminary Verification (Art.11-15)Case Admission (Art.10) 14. ()14 ... 15. The gate of the shuangguifacility, you have to passsecurity check.Interrogators seat insidethe interrogation room, youcan notice there is a cameraand a screen;Interrogatees seat, which ismuch lower than theinterrogators position.The inquiry room, thecameras automaticallyrecord all conversions.The walls are padded toavoid any accidents.Specially designed windowswith protective bars,outside is isolated desertedmountains.Psychological examinationroom, equipped withadvance instruments.Command room, equippedwith a large multi-displaythat monitors all activities inthe investigation facility.Inside a Shuanggui Facility**The content of this part are retrieved from here (Chinese) and here (English) 16. AV**The content of this part are retrieved from here (Chinese) and here (English) 17. Scientific Development of the Operation of Shuanngui Managing the Exercise of Discretion byOfficials Participating in Shuanggui. Promote due process, transparency, andother secondary measurements. Improve the quality of investigation by setup coordinate cooperation mechanism Separate MOS and CCDI proceedings. Minimize regulatory incoherence betweenState and CCP by coordinating Shuangguiwith criminal law where appropriate. Procedures should ensure that all PartyMembers are equally subject to discipline. Prevent the Shuanggui system frombecoming an instrument for factionalpolitical struggles.**These issues will be elaborated in theforthcoming article. **17 18. 18Thank You!http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2273044Backer, Larry Cat and Wang, Keren, Stateand Party in the Scientific Development of aLegitimate Rule of Law Constitutional Systemin China: the Example of Laojiao andShuanggui (June 1, 2013). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2273044