Jerome A. Cohen. Incommunicado Detention in China. SCMP (South China Morning Post)

April 19, 2012

In China, as elsewhere, famous cases enhance popular understanding of the legal system. Just a year ago, when Beijing police detained noted Chinese artist Ai Weiwei incommunicado for 81 days, they exposed national and foreign audiences to their unlawful abuse of “residential surveillance.” Now, the Communist Party has subjected Bo Xilai, Chongqing’s deposed Party secretary, to the party disciplinary procedure of “shuanggui” (literally “double designation”), bringing public attention to another extra-legal, widely-feared type of incommunicado detention with an innocuous name. The simultaneous confinement of Bo’s wife, Gu Kailai, on murder charges illustrates a third type of incommunicado detention, one authorized by law until the newly-revised criminal procedure law (*CPL) takes effect January 1, 2013.

The publicity and condemnation inspired by Ai Weiwei’s “residential surveillance” contributed to domestic and international pressures for legislating reform of that notorious practice. Those pressures, reflected in certain improvements in the new CPL, continue to generate demands for further legal restrictions on the power of police to transform what the legislature intended to be a form of “house arrest” into up to six months of incommunicado confinement in their  “house”, not the suspect’s.

Will the public’s current preoccupation with the fate of Bo Xilai lead to a similar focus on the realities of “shuanggui” and a demand for bringing it under legislative regulation? For China’s elite, the over 80 million Party members subject to investigation and sanctions  administered by the Party – not the government – for corruption and other violations of Party discipline, the order to report at a designated time and place for investigation – hence “double designation” – is dreaded. It often results in the loss of Party membership, stunting one’s career, and the most serious infractions are transferred to prosecutors for indictment and harsh judicial punishment.

“Shuanggui” conditions are sometimes more comfortable than confinement under “residential surveillance” or criminal detention, but the suspect’s isolation is usually just as complete. The environment is also just as coercive, often including psychological and physical torture. No contact is permitted with family, friends or colleagues, and there is no access to a lawyer. The suspect is alone with relentless interrogators, whom Party investigators supply with regular infusions of new material on which to base their questioning. Moreover, while Chinese police operate under generous time limits during ordinary criminal investigation and “residential surveillance”, in practice Party investigators are even less hampered by time constraints, and their targets know that. Interrogators also make clear that they, like police, prosecutors and judges, grant “leniency to those who confess, severity to those who resist”, with additional consideration given to suspects who accurately implicate others. In these circumstances, suicide attempts are not uncommon.

The Party has occasionally experimented with rules requiring that, before a member can be ousted from the Party or suffer other serious sanctions, he should be informed of the charges against him, given an opportunity to rebut the charges at a hearing, allowed the assistance of a Party colleague, provided with a written decision and permitted an appeal. Yet my research indicates that such experimental rules – the Party’s recognition of the rudiments of fundamental fairness when punishing its own members – are unlikely to be available to major suspects like Bo Xilai.

It is surely ironic, although apparently unnoticed, that the present Party leadership, while endlessly emphasizing that the entire Bo Xilai affair will be handled in strict accordance with law, has nevertheless entrusted the fate of its central figure not to the legal system but to Party justice, at least initially.

Bo’s wife, however, has been immediately consigned, together with an assistant, to the formal criminal justice system, presumably because there is already evidence that they have committed murder. Details are still lacking, but apparently the suspects have been detained in accordance with the ordinary criminal process rather than the dubious “residential surveillance”. Normally, Party members are required to be divested of their Party membership via discipline inspection procedures before undergoing criminal detention, so it is plausible to assume that neither suspect is currently a Party member, although that seems unlikely in the case of Ms. Gu. It may be that the leadership’s sense of urgency to put an end to this unprecedented scandal has made it expedient to ignore the normal practice, especially since she has not yet been accused of corruption.

In any event, although Ms. Gu and her assistant are entitled under the pre-2013 CPL to protections not available to those who are subjected to “residential surveillance” or “shuanggui”, those protections are unlikely to spare them from incommunicado detention. Police and prosecutors will probably declare that, at least during the investigation stage, the case involves “state secrets” and therefore, under the existing CPL, investigators are authorized to deny the suspects access to counsel until investigation ends, which can be months away despite pressure for a quick conclusion. Unless interrogators decide to permit a visit by family or friends in an effort to persuade suspects to confess, the detainees will remain isolated from anyone but their jailers until the new CPL, which provides for access to counsel during the investigation stage in most cases, takes effect.

Will Bo Xilai be sent to criminal prosecution after losing his Party membership as anticipated? That will depend on what evidence is uncovered by current investigations as well as on the leadership’s perception of political needs. Even if not implicated in the murder itself, Bo may well be charged with attempting to cover it up or at least with huge corruption and false imprisonment and torture of his enemies as well as other abuses of the criminal process on which his life and that of his wife now depend. If prosecuted, Bo may finally have contact with a lawyer after January 1, and that would end his nightmare of incommunicado detention. Yet that would not offer him much solace. Although Bo is rumored to be insisting on a fair and public trial, from his own experience manipulating the legal system he well knows the realities of “a socialist rule of law with Chinese characteristics”.

This article was published with some editing in the South China Morning Post on April 18, 2012 under the title “The Big Squeeze.” It was published in Chinese in the China Times (Taiwan) on April 19, 2012.(繁体中文

Jerome A. Cohen, an NYU law professor and co-director of its U.S.-Asia Law Institute, is also adjunct senior fellow for Asia at the Council on Foreign Relations. See