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10.24.2015

CCP Regulations on Disciplinary Punishment. Comment.

The CCP Regulations on Disciplinary Punishment was the second CCP regulatory document amended last week, on October 12, together with the CCP Standards on Integrity and Self-Restraint. I need not elaborate on the importance of the Regulations. The Regulation are to the Party legislative system what the Criminal Law of the PRC is to state law. 

The amendment to the Regulations on Disciplinary Punishment was planned since 2013, when Chapter 6 of the intra-party legislative plan eloquently spoke of "perfecting Party rules and regulations on anti-corruption and earnestly placing power within a cage of regulations" (paragraph 4) explaining how the circumstances of disciplinary violations, the sentencing standards and the definition of disciplinary violations were among the weak points of the 2004 Regulations. The amendment has remedied these and other deficiencies. Most importantly, it has introduced new concepts and principles in Party legislation, systematized them, or specified the meaning of existing concepts and principles. Most of these principles and concepts are contained in the first chapter of the Regulations. 

In the rest of this post therefore I will attempt to read the first chapter of the 2015 Regulations against its 1997 and 2004 versions. 

Article 1


The present Regulations have been enacted on the basis of the Statute of the Chinese Communist Party, to safeguard the Party statute, make Party discipline stern, purify Party organizations, protect the democratic rights of Party members, educate Party members in the respect of discipline and in the observance of the law, safeguard the unity of the Party, guarantee the implementation of the Party's basic line, its direction, policies, resolutions and laws and regulations of the State.
第一条 为维护党的章程和其他党内法规,严肃党的纪律,纯洁党的组织,保障党员民主权利,教育党员遵纪守法,维护党的团结统一,保证党的路线、方针、政策、决议和国家法律法规的贯彻执行,根据《中国共产党章程》,制定本条例。



Article 1 lists one by one the principles behind the 2014 Regulations. First, there is the requirement of consistency between the broader goals and principles of Party discipline set by the Party statute and other intra-party regulations, and those of the Regulations. Then, the reasons why the principles were enacted are listed. Article 1 is closely similar to article 2 of the 2004 Regulations. The 2004 Regulations posed no requirements about consistency. They spoke of "tasks" (renwu 任务) to be achieved - not by Party members, but by the Regulations themselves: "本条例的任务, 是... (the tasks of the present Regulations are)". Whereas now "safeguarding the Party statute" etc. are no longer qualified as tasks or purposes (mudi 目的), but may be the reasons behind the proscription of certain conducts. 


Article 2
The present Regulations take Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping theory, the important thought of the Three Represents, the scientific outlook on development as their guide, and deepen the implementation of the spirit of the series of important speeches of General Secretary Xi Jinping, and carry out the strategic deployment of comprehensively strictly ruling the Party. 
第二条 本条例以马克思列宁主义、毛泽东思想、邓小平理论、“三个代表”重要思想、科学发展观为指导,深入贯彻习近平总书记系列重要讲话精神,落实全面从严治党战略部署。 



Article 2 references the Party Statute (paragraph 2), with the significant difference that Xi Jinping's important speeches and the so-called "third comprehensive" are mentioned immediately after Hu Jintao's Scientific Outlook on Development. Jiang Zemin's Three Represents were not named in the 1997 Regulations, for the obvious reason that this political theory was created in 2000. But, they were part of the ideological basis behind the 2004 Regulations. Article 1 recited "The CCP Regulations on disciplinary punishment take Marxism-Leninism, Mao Zedong Thought (...) and the important thought of the Three Represents as their guide." In 2004 the Three Represents had already been official acknowledged as a part of CCP ideology. 

Article 3 
The Party Statute is the most basic intra-party regulation, it is the established standard whereby the Party governs the Party. Party discipline is the rule of conduct that must be respected by Party organizations at every level and by the entire body of Party members. Party organizations and Party members must voluntarily abide by the Party statute, strictly implement and safeguard Party discipline, voluntarily accept the constraints posed by Party discipline, and abide by the laws and regulations of the State in an exemplary way. 

第三条 党章是最根本的党内法规,是管党治党的总规矩。党的纪律是党的各级组织和全体党员必须遵守的行为规则。党组织和党员必须自觉遵守党章,严格执行和维护党的纪律,自觉接受党的纪律约束,模范遵守国家法律法规。

Article 3 specifies the place the Regulations occupy in the CCP regulatory system relative to the primary source of intra-party legislation - the CCP Statute; specifies what Party discipline is; introduces four requirements (必须 bixu) for natural persons who have sworn an oath to the Party, and for legal persons (Party organizations). Neither the four requirements nor the statement that the Party statute is the primary source of intra-party legislation are new. Both of them were more or less absent from the 1997 and 2004 Regulations, but their absence can be explained by the lesser focus that, until very recently, was placed on legal reform within the Party. The definition of Party discipline is the same as the one contained in article 37 of the Party statute. The Statute does not go beyond defining Party discipline as "the rule of conduct (...)". The 2014 Regulations instead conceptualize Party discipline as composed by six interrelated and interdependent aspects of the activities of legal and natural persons: 

(1) political discipline; 
(2) organizational discipline; 
(3) integrity (廉洁纪律); 
(4) mass discipline; 
(5) work discipline; 
(6) life discipline. 

This conceptualization of Party discipline is different from the one  adopted by Party commentators, and which does not include mass discipline, work discipline and life discipline. The 1997 Regulations did not refer to party discipline but to "errors" (错误 cuowu), whereas the 2004 Regulations divided party discipline in political discipline, organizational and personnel discipline, and self-restraint and self-discipline.


Article 4
The Party's work of disciplinary punishment shall uphold the following principles:
(1) the Party must govern the Party, and the Party must be strictly governed.  Strengthen the education, management and supervision of Party organizations at every level and of the entire body of Party members; place discipline at the first place; pay attention to catching them at an early stage and catch the small ones.
(2) All are equal before Party discipline. Severity must be used on Party organizations and Party members who contravene Party discipline, discipline shall be enforced fairly; the Party does not allow Party organizations and Party members not to accept the constraints posed by Party discipline. 
(3) Seek truth from facts. Where a Party organization or a Party member keeps a conduct that contravenes Party discipline, the nature of their violation of discipline shall be determined in accordance with the facts as the basis, and the Party Constitution and other intra-Party regulations and the State law and regulations as the criterion, by distinguishing between different circumstances, and giving an appropriate punishment.
(4) Democratic centralism. Party discipline punishment shall be decided after a collective discussion by the Party organization, according to statutory procedure. Individuals and a minority (of Party members) are not allowed to arbitrarily make and approve decisions. Lower-level Party organizations must enforce the decision that higher-level Party organizations have made on Party organizations or Party members who have contravened discipline.
(5) Learn from past mistakes to avoid future ones, cure the sickness to save the patient.  Combining punishment and education shall be practiced in dealing with Party organizations and Party members who have contravened discipline, to achieve "tempering leniency and severity".
第四条 党的纪律处分工作应当坚持以下原则:

  (一)党要管党、从严治党。加强对党的各级组织和全体党员的教育、管理和监督,把纪律挺在前面,注重抓早抓小。

  (二)党纪面前一律平等。对违犯党纪的党组织和党员必须严肃、公正执行纪律,党内不允许有任何不受纪律约束的党组织和党员。

  (三)实事求是。对党组织和党员违犯党纪的行为,应当以事实为依据,以党章、其他党内法规和国家法律法规为准绳,准确认定违纪性质,区别不同情况,恰当予以处理。

  (四)民主集中制。实施党纪处分,应当按照规定程序经党组织集体讨论决定,不允许任何个人或者少数人擅自决定和批准。上级党组织对违犯党纪的党组织和党员作出的处理决定,下级党组织必须执行。

  (五)惩前毖后、治病救人。处理违犯党纪的党组织和党员,应当实行惩戒与教育相结合,做到宽严相济。

Article 4 states the five principles that should inform and shape Party discipline. The point of whether the five 原则 listed under article 5 are political-legal principles (or legal principles, or political principles, or principles tout court), in a Western sense, is still unsettled. At least, according to those who drafted the 2015 Regulations, "the Party must govern the Party", "All are equal before Party discipline" etc. are the five driving forces that ought to determine how the Regulations are understood and enforced. The principles of Party discipline were listed in chapter 2 of the 1997 Regulations. The 2004 Regulations mentioned "all are equal", "seek truth from facts", "uphold democratic centralism", "learn from past mistakes...", "the Party must govern the Party" under articles 4, 5, 6, and 7. 

What Party discipline principles are, and what they mean to those who use them are entirely different questions. To these questions there are at least five possible answers:

(1) Skeptics would construct arguments to prove that the wording of article 4, despite all the work that must have gone into drafting the amendments, soliciting comments, reading the written comments sent by provincial party units, redrafting the Regulations and finally achieving a consensus on the final formulation of this and other articles, is meaningless. 

(2) Philologists, linguists, historians and political scientists would point out the strong similarities in language between the 2014 Regulations, Xi Jinping's speeches, and certain speeches of Mao Zedong, using Mao's works as textual evidence of a direct ideological continuity between Mao Zedong and Xi Jinping. This interpretation would however be unable to account for the changes Party ideology has undergone over time.

(3) Realists would notice how Party theorists are still at work to achieve a consensus on what each one of those principles really means. Therefore, they would express caution as to what these and other similar formulations mean. Else, they would reason by analogy: if "the sky is high and the Emperor is far away", or if "the higher ups have policies, while the lower downs have their own ways of getting around them" are true, then it is also true (or at least possible) that local Party organizations may distort the intended meaning of Party discipline principles, regardless of what this meaning may be. 

(4) Lawyers would approach the questions of (1) what principles of Party discipline are and (2) what they mean to those who use them using definitions, analytical concepts and methodologies that belong to their legal system. The choice to use any of these definitions, analytic concepts and methodologies, however, would pose the the inherent risk of conceptual misalignment. 





  

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