Double Jeopardy: Crime and China’s Communist Party
By Stanley Lubman, The Wall Street Journal
China’s announcement this week that the country’s former railway minister had been expelled from the Communist Party for corruption casts a spotlight on a significant flaw in the country’s pursuit of rule of law in criminal cases: More than 80 million Chinese people, including those at the top of the power structure, enjoy a different set of rules.
There are two parallel systems in China to punish criminal conduct, one for Communist Party members and the other, the formal criminal process. When a party member is suspected of a crime, it is the party’s own investigation that comes first.
Such is the case with the Liu Zhijun, the former rail minister, who according to state media reports on Monday was kicked out of the party on evidence disclosed by a thorough investigation of his crimes, for “’severe violations of discipline’ including graft and abuse of power.” It is only now, after the party has concluded its investigation, that evidence of Mr. Liu’s crimes will be transferred to the courts.
The same process applies to Bo Xilai, the former party chief in Chongqing, who was removed from the party’s Central Committee and Politburo earlier this year and faces an investigation also for “severe violations of discipline.” Whether Bo will be formally accused and tried in a court has not yet been determined.
In theory, CCP members who commit crimes will be turned over to the procuracy or police and the courts for criminal prosecution after initially being punished internally by the party’s own Commissions for Discipline Inspection (CDI). In practice, this happens in only a small minority of cases, and Party officials have the final say over the courts’ dispositions of those cases – a stark illustration of the Party’s influence over the criminal justice system.
A recent study by Chinese University of Hong Kong legal scholar Flora Sapio, appearing in her book “Sovereign Power and the Law in China,” explains that party rules on discipline “replicate” the state’s criminal law and other legislation on violations of public security, although the party rules redefine criminal offences according to the law as “mistakes” or “minor infractions” that do not involve criminal responsibility. If a case is turned over to the procuracy or police, the courts receive “a formal written opinion” that sets the grounds for a criminal investigation— and results in the majority of cases receiving minor punishments or noncustodial sentences. The result, Sapio writes, is that “party organs can virtually eliminate any attempt at independent adjudication.”
Sapio adds that rather than risk social instability, the party prefers to hand over to the courts only a small percentage of party members who have received party sanctions. For example, in 2009 over 1,300,000 reports of corruption by Party members were received by party discipline organs; however, only 140,000 were filed for party investigation, of which over 100,000 were punished internally. No number was given for the cases eventually handed over to procuracies, although the figures for this category in preceding years are all small fractions of the number of cases punished internally.
Liu Zhijun will soon be added to existing precedents for criminal prosecutions of high-ranking party members after they have been sanctioned by the party and their misdeeds widely publicized. In 2005, Minister of Land and Resources Tian Fengshan was removed from his post by the party and then sentenced by a court to life imprisonment for accepting bribes worth over 4 million yuan ($629,400) as governor of Heilongjiang Province and central government minister.
In 2008, the party boss in Shanghai and a member of the Politburo, Chen Liangyu, was also removed from his party posts and subsequently sentenced by a court to 18 years imprisonment for complicity in siphoning hundreds of millions of dollars from the city’s pension fund, and also for enriching himself and others through shady financial and real estate deals.
It remains to be seen how Bo Xilai’s case will be handled apart from his already reported loss of party positions. The details of the organized crime crackdown that he ordered and presided over in Chongqing and any illegalities committed under his orders have not been adequately revealed. It will be interesting to see whether he is punished further by the party and whether his case is turned over to the courts. Both seem likely at the moment.
If Bo’s case does go to a court, it, like that of Liu Zhijun, will provide public view of the coexistence of two parallel systems, one ultimately superior to the other.
China’s leadership has consistently proclaimed that Chinese law must have “Chinese characteristics,” but that is a contradiction: Legal institutions remain subject to party control despite the ideal of the rule of law that is stated in the Chinese constitution. 5/30/2012