With this post, I will offer some reflections on the legality of shuanggui, which have been induced by James Palmer’s article “Forced disappearances, brutality and Communist China’s politics of fear”. I will not rehearse each one of the arguments that have been advanced either pro or contra the legality of shuanggui, either in China or in the West. What I have found intriguing has been noticing how the three adjectives normally used in talking or writing about shuangguiare ‘extra-legal’, ‘supra-legal’ or ‘unlawful’
Each one of these adjectives modifies the noun shuanggui, to specify its position relative to state law. So if it is said that shuanggui is extra-legal, the speaker means that shuangguiexists outside of the state law. If is it stated that shuangguiis supra-legal, then the idea is conveyed that shuangguiexists abovethe state law, while saying that shuanggui is unlawful amounts to saying that shuangguiexists againstthe law.
How shuanggui is positioned relative to the state law eventually concerns the question of whether a plurality of legal orders exists in China, that is whether social actors (inside and outside of China), identify more than one source of ‘law’ within and/or across the territory of the PRC, or whether state law is considered asthe one and only source of normative ordering.
Given that shuanggui is only in part based on state law, stating that shuangguiis unlawful implies that in the PRC the one and only source of normative ordering is given by state law. If this were the case, then all sources of normative ordering other than the law of the PRC would be unlawful, and such a denial of legality would encompass anything from religious law to transnational law.
The belief that shuangguiexists outside of the state law or above of it allows to conceive of shuanggui as part of the legal order of the Chinese Communist Party. After all, a plurality of legal orders exist in the PRC. Some of these systems of normative ordering are transnational, as the WTO rules on regional trade agreements, the ASEAN-China Free Trade Agreement, the United Nations human rights regime, transnational advocacy networks andglobal civil society. Other systems of normative ordering are domestic. The most obvious examples are given by the legal systems of the Hong Kong and Macao Special Administrative Regions, but also byChina’s emerging civil society, the flourishing market of informal financial institutions, Sharia law in Muslim areas, Tibetan custom in the Tibet SAR, and so on.
If the criterion by which a system of normative ordering is legitimate lies in that its members identify the legal order as a “source of law”, one does not see the reason why, while for instance Muslim residents of Xinjiang and members of the Hui minoritycan identify Sharia law as a “source of law”, a similar possibility should be precluded to those who choose to become members of the Chinese Communist Party. Differently stated, proponents of the unlawfulness (as opposed to the extra-legality or supra-legality) of shuanggui,should explain what makes Aleph’s choice to accept CCP rules as binding on himself less legitimate than Beth or Gimel’s choice to accept the rules of informal financial institutions(or global civil society) as binding on themselves – regardless of any conflicts that may exist between CCP rules and the rules of informal markets(or global civil society) on one hand, and the state law on the other.
The opinion that shuangguiis morally aberrant – a point I have made elsewhere, and on repeated occasions – should be maintaineddistinct from considerations about the place that shuangguioccupies in China’s pluralistlegal order, either under the guise of ‘lianggui‘ or ‘liangzhi‘, or under any other guise. The 2012 amendment to the Criminal Procedure Law hasbrought shuangguiwithin the scope of state law, albeit under the name of residential surveillance (See CPL 2012 Art. 73, 77. For a similar interpretation of the 2012 CPL see here, at 84, and here), and despite the fact this measure may be jointly enforced by state prosecutors andparty investigators. Given that the Criminal Procedure Law is a national level law has been passed by the National People’s Congress, residential surveillance (shuangguiby a different name) is then legal under state law. Shuangguicannot be equated to illegal detention (非法拘禁) unless by using the word ‘illegal detention’ one wishes to convey a moral judgment rather than refer to a residential surveillance/shuanggui. But then, one would not be talking about law as much as about one’s own views about the infallibility of the higher principles that ground the morality of a given legal system.
Of course, that residential surveillanceis legal under state law does not solve the problem of what makes Party rules on shuangguivalid and binding on members of the CCP. Neither the General Program, nor the Statute of the CCP contain any mention of shuanggui. Also, before 2012 rules on rule-making procedure by the Party were, generally speaking, rather vague. Even though this is not something I have analyzed in depth, I guess it is always possible to find a flaw in rule-making, which would make it possible to argue that – under Party legislation – all rules, regulations, replies etc. on shuangguiare invalid. The widespread practice of shuanggui over the past 25 years (if not more) means, however, that rules on shuangguiare regarded as binding both by those who enforce them, as well as by their targets.
Their binding force of Party rules comes from a prospective Party member’s consent to bind himself or herself in a covenant with the Chinese Communist Party. Such a consent is expressed before the Party flag (which literally embodies the Party) by swearing a secular oath:
I voluntarily join the Chinese Communist Party,
[and] I [shall] support the Party’s General Program
Abide by the Party Statute, carry out the duties of a Party member,
Execute decisions by the Party, strictly observe Party discipline,
Protect Party secrets and be loyal to the Party,
Work enthusiastically, and struggle for Communism until the end of my life,
While being prepared to sacrifice everything to the Party and the People,
and to never betray the Party
(Article 6, Statute of the Chinese Communist Party)
The sixth sentence of the oath – 严守党的纪律 – pledges obedience to Party discipline, and shuanggui is a cornerstone of Party discipline. The oath is taken at the end of a somewhat lengthy process in which prospective Party members filea formal application to join the Party, acquire theoretical and practical knowledge of how the Chinese Communist Party is structured, and how it works. Shuanggui iswidely discussed on the mainland, and besides prospective Party members are required to understand Party discipline (art. 6 here) therefore it is reasonable to assume that any prospective Party member will know that they may be placed under shuanggui, should they be suspected of corruption.
The choice to accept Party discipline in return for the substantial benefits that are often tied to Party membership may well be a choice that Party members have made in more or less full autonomy. The question of whatcan and does happen during shuanggui, pre-trial detention or arrest is, of course, an entirely different one.
P. S. I am writing this post in my private capacity and its content does not represent or reflect the opinion of any organization I am a member of.