Posts tagged: Gu Kailai

China Law & Policy Turns 4!

By , July 14, 2013

Happy birthday China Law & Policy!  Monday marks the 4th anniversary of this blog’s founding and we want to take this moment to thank all our readers, commentators and supporters these past four years.  When we posted our first post on July 15, 2009, we didn’t know where this blog would take us.  Over the past 4 years, we have been able to analyze various areas of Chinese legal development and interview a number of experts in the field.

Year 4 started off with a bang.  Last July, we ran a three part series on the proposed legislation in the United States known as the Chinese Media Reciprocity Act that was picked up by a number of other websites.  The Chinese government’s increasing belligerence toward Western reporters became an issue that we would return to throughout the year, especially after New York Times reporter Chris Buckley’s journalist visa was not renewed and after China’s most prestigious news paper – Southern Weekend – protested government censorship of the paper’s New Year’s message.

In terms of traditional legal development, China Law & Policy interviewed Prof. Margaret K. Lewis on China’s amended Criminal Procedure Law which took effect in January of this year.  Soon after that interview, Gu Kailai – the wife of Bo Xilai – was tried and found guilty of the murder of British citizen Neil Heywood.  Glenn Tiffert, a PhD candidate in history at the University of California, Berkley, guest blogged in two posts analyzing the jurisdictional issues in the Gu Kailai trial and the role of the party-state in the Bo Xilai affair.  Those two posts are still being commented on.

We finished off our third year with China Law & Policy’s most popular blog post – at least by numbers – “Chen Guangcheng and the Commandeering of Our China Human Rights Policy.”

So what does the future hold for China Law & Policy?  This blog’s goal has always been to make one of the most important relationships in the world – the United State’s relationship with China – more accessible to the general public, to those who are not “China people.”  Central to understanding a modern China is understanding its developing legal system.

So we will continue to blog about legal developments in China and general policy issues.  We will look to increase the number of experts we interview and hopefully can convince more people to guest blog.  We will also continue with our periodic book reviews and “Just For Fun” section which often informs you of the best Chinese restaurants out there.

This means that China Law & Policy needs you!  Have a blog post idea, email us (elynch@chinalawandpolicy.com).  Want to write a blog post, email us (all posts are reviewed and edited).  We are especially looking for younger, less established “China people” so don’t think just because you don’t have a PhD you can’t blog.

All suggestions from the public to make this website better are always appreciated.  Like something we did and want to see more of it?  Don’t like something?  Just email: elynch@chinalawandpolicy.com

Happy birthday and thank you again to everyone who has helped to make this blog a success!

 

 

Glenn Tiffert on the Role of the Party-State in the Bo Xilai Affair

By , October 14, 2012

A few weeks ago, Glenn D. Tiffert, a Ph.D. candidate in History at the University of California, Berkeley with a focus on the legal history of the PRC, posted an article on traditional problems of jurisdiction, issues that any legal system would have – which courts have the right to hear a case and why.

But China’s legal system is far from traditional. Tiffert makes that clear in his new article “Hold the Champagne: The Bo Xilai Affair, the Party-State, and Rule of Law,” posted below. How are criminal trials of government officials handled in a one-Party state, where the overlap between the Party and the state is strong and omnipresent? What does the fact that Gu Kailai and Wang Lijun went through the criminal legal process and not the Party’s disciplinary process mean for the rule of law? And does the fact that Bo Xilai was very much handled by the Party disciplinary process mean anything else?

Hold the Champagne: The Bo Xilai Affair, the Party-State, and the Rule of Law

by Glenn D. Tiffert

Part 2 of a two-part series on the Bo Xilai Affair. Click here for Part 1.

With its personal and political dramas, and its broader implications for leadership succession, the Bo Xilai Affair (“the Affair”) has captivated observers of the People’s Republic of China (“PRC”). But beneath the headlines, the Affair affords an opportunity to take stock of the evolving relationship between the Chinese Communist Party (“CCP”) and the PRC state, a task this post briefly undertakes in the context of discipline and punishment.

Although China today largely has a market economy, the Leninist political concept of the “Party-state” remains a useful one. The term suggests a duality in which each component maintains a distinctive identity amid mutual, deep entanglements.

According to one recent description: “The Party is like God. He is everywhere.”Its tendrils penetrate every corner of Chinese political, economic,

Vladamir Lenin: His Ghost Still Lives on in the Chinese Party State

social, religious and cultural life, and it tolerates no organization it cannot monitor or control. Hence, in principle, every institution of significance in China has internal Party representation that links to a parallel, external hierarchy of Party organs. This arrangement is intended to maintain the Party’s intimacy with Chinese society and leadership of it, and facilitate tight discipline over ideology as well as policy formation and implementation.

Yet, the boundaries and terms of the Party-state duality are far from stable. Historically, they have generated fierce contestation and fluctuated widely, not just in the PRC, but also under the Nationalist regime that preceded it. In short, Party and state, though tightly entwined, variously face one another in tension.

The Bo Xilai Affair illustrates the ongoing complexities of the Party-state relationship well, particularly as it pertains to the legal system. To explore this more concretely, let us reconstruct from the public record the differential handling and case procedural histories of the Affair’s principal players –Bo, his wife Gu Kailai, and Chongqing police chief, Wang Lijun.

A Tangled Web: Discipline Through Both Legal and Party Means

Generally speaking, the PRC maintains three official channels of discipline and punishment for government officials and Party members. These channels may overlap or intersect in specific cases.

The first channel involves ordinary criminal liability. All citizens accused of crimes – including officials and Party members – are subject to the state legal system familiarly comprised of police, procuratorates and courts. But, Article 74 of the PRC Constitution exempts deputies to the National People’s Congress (“NPC”) from arrest or criminal trial without the consent of the NPC Presidium or its Standing Committee. At the time the Affair erupted, both Bo and Wang were NPC deputies.

The second channel, also governed by state law, involves administrative sanctions and applies specifically to government officials and Party members, who are subject to a thicket of regulations and laws enforced by an assortment of agencies, including the Law on Public Servants and, in complex or serious cases, investigation and sanction by agents of the Ministry of Supervision pursuant to the Administrative Supervision Law.

The third and final channel exists in parallel to the state legal system and is purely Party. Under the Party Constitution and subsidiary rules and regulations, CCP members are subject to Party discipline. In fact, the CCP maintains a hierarchy of internal Discipline Inspection Commissions charged with investigating both concrete cases and maintaining the overall organizational and ideological health of the Party.

Attempt to Separate Legal Liability and Party Discipline

Deng Xiaoping takes power in China and the early 1980s sees "reform & opening"

When the CCP began reconstructing its state legal and internal disciplinary organs in the early 1980s after the disruption of the Cultural Revolution, an effort was made to assert their separateness. Thus, the Party’s Central Discipline Inspection Commission and Organization Department jointly opined in 1982 that CCP members could be arrested and tried in the state legal system under the criminal law without first waiting for the Party to dispose of their cases internally, and that the Party disciplinary process could even begin after a judicial verdict. They added that punishment under the criminal law should, with limited exceptions, result in expulsion from the Party. Indeed Article 38 of the Party Constitution declares in part that “Party members who seriously violate the criminal law must be expelled from the Party.”

Very little public information is available on the operation of the Party disciplinary process, but observable practice indicates that this stab at separation did not get very far. Although the 1982 Party Opinions intended to loosen the chains that bind the state legal process to the Party disciplinary process, in practice, the Party exercises a right of first refusal towards suspected criminals within its ranks. Accordingly, Party officials suspected of offenses prosecutable under the criminal law are routinely held to account only through internal disciplinary channels, where anecdotal evidence suggests they often get off more leniently than the criminal law would allow – in many cases effectively suffering no more than setbacks to their careers. This amounts to a double standard of justice for Party members and understandably outrages those who believe that everyone in China should be equal before the law.

It appears that the Party countenances prosecution by state judicial authorities only of members suspected of especially serious or notorious crimes, crimes that in its estimation cry out for punishments heavier than mere internal Party discipline, or in which the Party wishes to set a public example. Consistent with its 1982 Opinions, the Party may in these instances allow the police and procuratorate to originate a case in the state legal system, or it may refer a case to them after exhausting its own internal disciplinary process. Of course, the latter – in which the Party has already made its own internal decision – effectively constitutes a form of political guidance on the expected outcome of the state criminal prosecution and trial.

In addition, because police and procuratorial personnel often participate in Party disciplinary investigations, they are familiar with the details of the referred case before it formally enters the judicial process. What is more, at the time of referral, the Party forwards to them the report of its Discipline Inspection Commission and the official findings therein. Thus, the Party disciplinary process – even though it appears on paper as separate from the legal system – contaminates the judicial process at multiple points, making independent adjudication that much more difficult.

How Does the Party-State Discipline Model Play Out in the Bo Xilai Affair?

How do these arrangements bear on the Bo Xilai Affair? The three principals – Bo Xilai, his wife Gu Kailai, and Wang Lijun – were all members of the CCP. So far as we know, Gu Kailai held no Party or state offices, but Wang Lijun held both, and Bo Xilai held Party, but no state, office. As the table below indicates, these facts determined the channels through which their cases publicly traveled.

- The Case of Bo Xilai

The Party’s handling of Bo Xilai exemplifies a classic sequence of discipline and punishment for Party members: (1) suspension of Party posts pending the results of disciplinary investigation, (2) expulsion from the Party upon the completion of that investigation, (3) seamless referral to the state judicial system for prosecution and, eventually, (4) conviction. The key outstanding questions concerns the specific charges that will be leveled against Bo and the severity of his ultimate sentence.

Bo Xilai

Deconstructing his case further, as a member of the Politburo, Bo fell directly under the Party jurisdiction of the Central Committee. Thus, on March 15, 2012 and pursuant to the Party’s internal Regulations on Disciplinary Punishment (中国共产党纪律处分条例), the Central Committee removed him from his Chongqing Party posts, chief among them Party Secretary. Further following the sequence mentioned in the prior paragraph, on April 10, 2012 the Party suspended his membership in the Politburo and the Central Committee and announced that his case would be sent to the Central Discipline Inspection Commission (CDIC) for investigation of “serious disciplinary violations.” On September 28, 2012, after considering the CDIC report on his case, the Politburo of the Central Committee expelled Bo from the Party and referred him to judicial authorities for prosecution. Divested of his Party membership, on September 29, 2012, Chongqing municipal authorities formally requested that the National People’s Congress (NPC) strip Bo of his seat (and the immunity it conferred) in order to formally clear the way for prosecution. As of this writing, we await the trial and sentence.

Another outstanding question concerns Bo’s whereabouts since his last public appearance in mid-March. As a subject of Party investigation, he was likely held under shuanggui (双规), an extra-legal form of detention used by the Party in its disciplinary process to investigate and interrogate members suspected of violating Party rules or state law. Party rules restrict shuanggui to a term of six months, which coincides well with Bo’s mid-March disappearance. We may learn at trial that he was transferred to state custody on a date that falls plausibly within this six-month time limit.

- The Case of Wang Lijun

Wang Lijun’s case traveled a different route. On February 7, 2012, Wang left the United States Consulate in Chengdu and surrendered

Wang Lijun

immediately to central authorities, reportedly from the Ministry of State Security, disappearing from view until his trial in mid-September. However, Wang was not formally arrested by State Security until July 22, 2012, having been stripped of his NPC seat and the immunity it conferred several weeks before, on June 30.

Authorities have offered no public account of his whereabouts between early February and late July. Three possibilities suggest themselves. First, in China, the police can detain an individual for investigation in a detention center or jail without arrest for up to 37 days, though they may be able to reset that clock and lawfully extend detention further by tacking on charges with strategic timing. A five and a half month detention, however, would have stretched that to the point of unlawfulness and, while hardly unprecedented, the intra-Party stakes would arguably have made the Party averse to tainting its handling of this case with that kind of procedural irregularity.

A second, more remote, possibility is the extra-legal Party form of detention called shuanggui, discussed above. Third, Wang may have been placed under “residential surveillance (监视居住),” a controversial form of prolonged detention famously used against government critics that, contrary to its connotations, is frequently served at a place or facility designated by the police. Under the Criminal Procedure Law, residential surveillance is limited to a period of six months, which fits Wang’s disappearance from public closely.

Gu Kailai

- The Case of Gu Kailai

Gu Kailai’s detention raises the same questions. She disappeared from public view in mid-March, was not formally arrested until July 6, 2012 and reappeared only at her trial for the intentional killing of Neil Heywood on August 9, 2012. Nearly four months separated her disappearance and arrest, and again the official record offers no explanation. Investigatory detention for that length of time for a single charge of homicide too would have been unlawful.

Foregrounding the State: CCP Reticence in the Gu & Wang Cases

Wang and Gu were both Party members, but interestingly the Party has only spoken of their cases in the context of the state legal system; it has studiously avoided associating them with its internal disciplinary process. This would favor residential surveillance, rather than shuanggui, as the explanation for their extended disappearances.

The Party’s inhibitions about connecting these two cases to discipline manifests in another important way as well. Wang and Gu have both been convicted of “serious” crimes, but no public announcement of Party disciplinary sanctions, most obviously expulsion, has followed; Article 38 of the Party Constitution requires expulsion.

In the past, such announcements routinely arrived at the outset of the state legal process. The practice of announcing expulsion just prior to referring the case to judicial authorities suggested a convention that Party members in good standing were immune from state prosecution, irrespective of the 1982 Opinions. Bo Xilai’s case, for example, conforms to this model, as did those of Chen Xitong and Chen Liangyu before him. There are signs, however, that this practice has changed, at least for some defendants.

For cases like Gu’s and Wang’s, which originate in the state legal system rather than with a disciplinary investigation, the Party is no longer consistently publicizing the disciplinary consequences of conviction. One might read this as a positive development if it indicates that the Party has rediscovered the spirit of the 1982 Opinions and is again loosening the chains that bind the state legal system to its internal disciplinary process. After all, given the clarity of the Party Constitution on the consequences of conviction for serious crimes, one may assume with good reason that Wang and Gu have been, or will be, expelled. On the other hand, with public faith in the capacity of the CCP to police its own at a nadir, continued silence on their standing in the Party, especially in light of their notoriety, invites cynicism and conspiratorial theorizing.

Discipline Through the Administrative Channel: Greater Rule of Law by the Party?

In addition to the Party disciplinary and state criminal processes discussed so far, there remains another channel: the state administrative process. A dizzying array of state administrative organs regulate malfeasance by government agencies and their personnel. The relation of these various administrative organs to one another and to the Party disciplinary process is not always clear, though one example stands out from the pack and demonstrates how intertwined the state administrative disciplinary process is with the Party’s.

Historically, the crowning organs of the state administrative and Party disciplinary channels have had overlapping memberships, with key cadres concurrently holding leadership positions in both. For example, the current Minister of State Supervision, Ma Wen, also serves as a Deputy

The Downfall of Bo Xilai begins with the Party

Secretary of the Party’s Central Discipline Inspection Commission, just as her predecessor, Qian Ying, did in the 1950s, when Qian established the precedent. In fact, the correspondence between these organs extends deeper still: in 1993, the Central Discipline Inspection Commission actually absorbed the Ministry of State Supervision in a merger, and while they remain distinct on organization charts, their twin apparatuses often function as alter-egos in concrete cases.

Strictly speaking, only one of the three defendants held state office at the time the Bo Xilai Affair erupted, Wang Lijun, and I will have more to say about him in a moment. But in a curious twist emblematic of the overlap between Party and state, Bo Xilai himself is also subject to the 2005 Law on Public Servants (公务员法), paradoxically through his Party status.

In 2006, the CCP Central Committee and State Council, as the top organs of Party and state administration, jointly issued an Implementation Plan for the PRC Law on Public Servants(中华人民共和国公务员法实施方案) (“the Plan”). The Plan makes clear that, pursuant to subsidiary Rules on the Scope of Public Servants (公务员范围规定) (“the Rules”), functionaries in CCP organs (工作人员), with the exception of service workers (工勤人员), qualify as public servants and thus are subject to the Law on Public Servants; Hence Party officials who hold no state office are now counter-intuitively subject to state law regulating public servants.

Article 4, Paragraph 1 of the Rules is still more explicit, listing among the categories of CCP personnel included within the scope of public servants “leading personnel of Party Committees and Discipline Inspection Commissions at the central and various local levels.” Under this rubric, Bo Xilai, as Chongqing Party Secretary and a member of the Politburo qualified doubly, and hence the announcement of his referral for prosecution properly lists the state Law on Public Servants among the legal bases for the Party’s decisions to remove him from his Party posts.

The optimistic reading of this convoluted logic would go something like this: the Party, having conceded that it is subject to the law, faithfully submits its leading members to the same regulatory standard as state public servants, a refreshing acknowledgment perhaps of their actual powers and functions amid the blurred boundaries of the dualist Party-state.

But before we break out the champagne to celebrate this milestone in the tortuous journey of the rule of law in China, it bears keeping in mind that while such maneuvers reference state law, they reach it only after an initial, internal determination by the Party; it is the Party that permits a case to attain this point.

Moreover, a further cautionary note underscores how provisional the change is in the relationship between Party and the state. Though the Party has gone to considerable lengths to present its handling of the Bo, Wang and Gu cases as procedurally unimpeachable models of socialist rule of law, certain details belie its tidy narrative, and Wang Lijun helps to show how.

Recall that of the three defendants discussed here, only Wang is known to have held state office at the time the Affair erupted. On March 26, 2009, the Chongqing Municipal People’s Congress, acting under its constitutional authority, appointed him Chongqing Police Chief, and on May 27, 2011, it elevated him to serve concurrently as Deputy Mayor. The power to reassign or dismiss Wang from these posts similarly fell under its jurisdiction.

Nevertheless, Wang’s February 2, 2012 reassignment from police duties, the event that precipitated his flight to the United States Consulate several days later, was not in fact ordered by the People’s Congress or by another legally authorized state body, but by the city’s Party Committee, controlled by Bo Xilai. This unlawful conflation of Party and state – where the Party performs duties reserved to the state – was then compounded on March 15, 2012, when the CCP Central Committee, via its Organization Department, removed Wang from his position as Deputy Mayor.  It was not until March 23, 2012, that the Chongqing Municipal People’s Congress formalized Wang’s dismissals from these posts, making them legally valid.  For as long as fifty revealing days, the gaps between Party and state, power and law, brazenly lay bare.

Party authorities, at both the municipal and national levels, in their haste could not be troubled to maintain appearances by first arranging Wang’s dismissals through regular state channels. Instead, the Party violated the Constitution and other laws, thereby poking holes in the self-congratulatory, socialist rule of law banner it attempted to wrap around these cases. In short, Wang’s case reminds us that even after considerable effort to systematize Party and state administration and bring the Party under the ambit of state law, old Leninist habits and sensibilities remain alive and well, and are never far from the surface.

This is the second article in a two-part series. For Part 1, click here.

Glenn Tiffert On China’s Recent Jurisdictional Issues

By , September 9, 2012

Jurisdiction is central in any legal system; it is jurisdiction that gives a court its power to administer justice.  Without proper jurisdiction, a court’s opinion is defective.  Thus, given its importance, all legal systems design specific rules governing when a court has jurisdiction over a case.

But recently in China, how courts have gained jurisdiction in criminal trials has been called into question.  The trial of Gu Kailai, for a murder that took place in Chongqing, was heard in Hefei.  Wang Lijun was police chief of Chongqing, but his crimes are being heard in a Chengdu court.  Has the Chinese legal system ignored all rules concerning what gives a court jurisdiction?  Or are there other rules that apply?

Glenn D. Tiffert, a Ph.D. candidate in History at the University of California, Berkeley with a focus on the legal history of the PRC, explains below that what might look like a random selection of courts actually has a basis in law.  Tiffert also reminds us that there is more than just the Criminal Procedure Law to look at in understanding the Chinese criminal legal system. 

Mixed-Up Confusion?  The Different Ways Chinese Courts Obtain Jurisdiction

By Glenn D. Tiffert

Part 1 of a two part series exploring the jurisdictional issues in recent criminal cases

As the Chinese legal system works its way through the various cases connected to the “Bo Xilai Affair,” it is a good time to review the usually unglamorous procedural rules governing jurisdiction.  The Bo Xilai Affair has brought these jurisdictional rules to the forefront and is generating more than the usual amount of interest among China watchers; even those focused on Chinese law are finding twists worth exploring.

To keep things simple, I will explore jurisdictional issues in the Gu Kailai and Wang Lijun cases alone, although my points could apply more generally to the other defendants connected to Gu, namely her accomplice Zhang Xiaojun, and the four police officers charged with covering up her crime.  This post will look at territorial jurisdiction, in other words, where the trials were held.  A later post will examine why both cases were assigned to intermediate level People’s Courts.

Gu Kailai being led into Hefei Intermediate People's Court

To recap: Gu Kailai was convicted of the intentional homicide of Neil Heywood, a British citizen resident in China, and the crime was alleged to have taken place in Chongqing, Sichuan province, the city her powerful husband, Bo Xilai, presided over as Party Secretary.  However, Gu’s trial took place 800 miles away from the city of Chongqing, in the city of Hefei, Anhui province, a place that had no known connection to the homicide, or to the alleged crimes of the other defendants associated with her.  Observers have suggested various practical or political reasons for why the trial was not held in Chongqing, and why it may have been assigned to Hefei, but those need not concern us here.  We are interested in discovering the legal authority for the assignment of the case to Hefei.

Article 24 of the Criminal Procedure Law of the PRC establishes the general rule that: “A criminal case shall be under the jurisdiction of the People’s Court in the place where the crime was committed.  If it is more appropriate for the case to be tried by the People’s Court in the place where the defendant resides, then that court may have jurisdiction over the case.”   Additionally, the Criminal Procedure Law provides rules for cases in which more than one court could claim jurisdiction, or in which jurisdiction is unclear.  For example, Article 25 states: “When several People’s Courts at the same level have jurisdiction over a case, it shall be tried by the People’s Court that first accepted it. When necessary the case may be transferred for trial to the People’s Court in the principal place where the crime was committed.”  However, in the case of Gu Kailai, none of these basic rules provide a basis for trying her in Hefei.  As a result, we must look elsewhere.

The Chinese legal system provides several routes for transferring jurisdiction over a case from one court to another.  For example, pursuant to the Criminal Procedure Law and the Law on the Organization of the People’s Courts, a lower level court with jurisdiction over a major or complex case can request a higher level court to take over the case.  But because Gu Kailai was charged with a capital crime, we can rule this path out.  Article 20 of the Criminal Procedure Law stipulates that intermediate level courts have jurisdiction of first instance over crimes punishable by life imprisonment or the death penalty and, because this case was actually tried by an intermediate level court, a lower court could not have had jurisdiction over it first.

One jurisdictional route rises above the rest.  Article 26 of the Criminal Procedure Law provides that: “A People’s Court at a higher level may assign a People’s Court at a lower level to try a case over which jurisdiction is unclear and may also instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

Article 26 can be parsed in different ways, with different results attaching.  To resolve the ambiguity, we must do what we do in any legal system, move beyond the four corners of the statute to consult supporting texts and practice, both of which indicate that the Supreme People’s Court (SPC) essentially regards Article 26 as comprising two independent clauses, the second of which matters here.  Hence we get: “A People’s Court at a higher level may… instruct a People’s Court at a lower level to transfer the case to another People’s Court for trial.”

The authoritative SPC Interpretation on Certain Questions Pertaining to the Implementation of the Criminal Procedure Law of the PRC (“the SPC Interpretation”) stipulates two ways that can happen.  First, under Article 18 of the SPC Interpretation, when the President of a lower level court must recuse himself[1] and it would be “unsuitable” for that court to assert its jurisdiction over a case, that court may ask a higher level court to take over jurisdiction.  The higher level court may take jurisdiction or assign it to another court at the same (lower) level as the first court.  Article 19 of the SPC Interpretation requires the higher court to send its decision on jurisdiction – 管辖决定书 (guanxia juedingshu) – to the lower court newly awarded jurisdiction and to other relevant courts.  Second, Article 22 of the SPC Interpretation allows a higher level court on its own initiative to assign jurisdiction over a case from one lower level court to another lower level court “when necessary,” without first requiring a request from below or that the second court be of the same level as the first.

Admittedly, we know few hard facts about the procedural history of the Gu Kailai case, but one nugget stands out.  The Xinhua reporting on the trial indicates that the SPC issued a decision on jurisdiction to the Hefei Intermediate People’s Court, and the Hefei court accepted the case for trial on that basis.  We do not know precisely whether this decision was based on Article 18 or 22 of the SPC Interpretation, as either might reasonably have applied, but the SPC evidently used its inherent power under Article 26 of the Criminal Procedure Law, as expounded in the SPC Interpretation, to transfer Gu’s case to Hefei.  One may furthermore assume that the Supreme People’s Procuratorate issued complementary instructions so that procurators would actually argue the case there, too.

The Supreme People's Court

Assuming that the SPC complied with its own Interpretation of the Criminal Procedure Law, we may infer from its decision on jurisdiction that another court originally accepted the case.  We do not know which court that may have been, but an obvious candidate would have been the Chongqing Intermediate People’s Court.  Under this scenario, three possibilities present: first, the unnamed court claimed jurisdiction over the case without the approval of senior Party and judicial authorities in Beijing, which seems implausible; second, Beijing granted its approval and then changed its mind; and third, acceptance by the unnamed court served, in the interests of formal compliance with procedural requirements, purely as a trigger for transfer to Hefei.  Regardless, as the highest court in the land, once the SPC transferred jurisdiction, the decision was effectively immune from challenge or appeal.

In comparison, the Wang Lijun case is more straightforward.  At least one of Wang’s alleged crimes took place in Chengdu: his purported “defection” in the United States consulate.  Notwithstanding substantive problems matching the facts as we know them to the elements of this crime, Chengdu judicial authorities may properly claim jurisdiction over the case under Article 25 of the Criminal Procedure Law (discussed above), and barring an unlikely protest from their counterparts in Chongqing or any other locale in which Wang is alleged to have committed crimes, the trial will take place in the Chengdu Intermediate People’s Court.  Indeed, given the stakes in trying Wang, one may assume that the SPC, and the political leadership behind it, assents to Chengdu jurisdiction, either tacitly or by assignment.  When the verdict is announced, we may know which.

Historically, reassignments of lower court jurisdiction by higher level courts are not uncommon in the Chinese judicial system, where concerns about local protectionism, judicial independence and varying levels of judicial competence adversely affecting trial outcomes run high.  The 2008 criminal trial of former Shanghai Party Secretary Chen Liangyu in Tianjin is another prominent, recent example.  Cases like those of Chen Liangyu and Gu Kailai shine a spotlight on one of the Chinese judicial system’s underappreciated features.


[1] Article 28 of the Criminal Procedure Law defines the grounds for recusal, including “relations with a party to the case that could affect the impartial handling of the case.”

Why Was There a Trial When Gu Kailai Confessed – China’s “Plea Bargaining”

By , August 29, 2012

As China Law & Policy reported last week, the guilty verdict issued against Gu Kailai for the murder of Neil Heywood came as no surprise, even with the slim evidence – much of it hearsay – presented at the August 9th trial.

One central piece of evidence at the eight hour trial was Gu’s own confession.  According to the Chinese state-run media, Gu openly confessed to intentionally killing Heywood.  But for some, this raises the question – do you need to have a trial at all if the defendant confesses?  Can’t she just plea to the murder and avoid the trial?

But does China even have plea bargaining?

China’s Summary Procedure – Not Exactly Plea Bargaining

Even in the United States, plea bargaining was not a welcomed occurrence.  Plea bargaining emerged as a grass-roots response by the actors in the criminal justice system – the judges, prosecutors, and defense attorneys – to the rapidly growing criminal docket.  Although first documented as widespread as early as the 1920s, it wasn’t until 1970, when the Supreme Court declared plea bargaining constitutional, that it became embraced, even if awkwardly.  Today, over 95% of all felony convictions in the United States result from plea bargaining.

In the adversarial system – where the prosecution and the defense battle it out to ultimately determine the truth and the judge plays a more passive role – plea bargaining has its place.  But in an the inquisitorial system – where the judge plays an active role in determining the facts – plea bargaining is not as openly accepted.  But criminal justice systems in civil law countries suffer from the same demands – too many case, too few lawyers and too little time.  As a result, even countries like Germany have developed a type of plea bargaining.  In Germany today, a remarkably high average of 20% to 30% of all convictions are the result of a confession.

In China, the story of plea bargaining has taken a similar path.  Innovation has come from the bottom up and its increasing use is a response to

Bargaining in the market - same as bargaining justice?

the exploding criminal caseload in most courts.   Beginning in 1996, with the first amended Criminal Procedure Law, China first introduced Summary Procedure – a form of plea bargaining where the trial is reduced in cases where the defendant confesses and agrees to summary procedure.  Under the 1996 CPL Summary Procedure could only be used in “minor” criminal cases, where the sentence was limited to three years or less.

But as China instituted another “strike hard campaign” and criminal dockets further ballooned, local courts began experimenting with Summary Procedure in major criminal cases (sentence of more than three years).  Eventually, most courts began issuing extending the use of Summary Procedure to major criminal cases, and most criminal cases, regardless of the sentence, were subject to Summary Procedure (these regulations referred to the use of plea bargaining-like procedures in major criminal cases as “Simplified Procedure“).  For further analysis of the development of Summary and Simplified Procedure, see Maybe a Plea But is It a Bargain: An Initial Study of the Use of Simplified Procedure in China.”

In amending the CPL in 2012, the Chinese government officially sponsored the use of Summary Procedure by extending the use of Summary Procedure to almost all criminal cases.  See Articles 208 to 214.

Summary Procedure is Not Allowed in Death Penalty Cases

Gu Kailai could not avail herself of Summary Procedure because the CPL does not permit the use of such procedures in capital cases.  The 2012 CPL Amendments don’t specifically spell this out.  Instead, Article 208 limits the use of summary procedure to those cases within the jurisdiction of the basic-level people’s court (基层人民法院).  However, under Article 20 of the CPL, the intermediate people’s court (中级人民法院) has jurisdiction in the first instance of all cases punishable by life in prison or death.

As a result of these two provisions, Gu Kailai, even if she wanted to use Summary Procedure, could not as her case was heard in an intermediate level court, and not a basic level court.

Summary Procedure Does Not Eliminate the Trial

But even if a crime is eligible for Summary Procedure, there is still a lot more judicial oversight than what you would see in the U.S.  This is a remnant of China’s civil law system where, due to the central role of the judge, the defendant cannot avoid a trial just by admitting guilt.

Under Summary Procedure, the “trial” is not eliminated, just shortened.  The judge will still review the prosecution’s file, call the parties to court, allow the parties to argue certain points and provide the defendant with the last word prior to judgment.  Under the current amendments, someone from the prosecutor’s office should attend the Summary Procedure trial.  This is an important change from the prior CPL which permitted the absence of the prosecutor, demonstrating that Summary Procedure is not just some rubber stamp of the defendant’s confession.  Cf. 1996 CPL Article 175 with 2012 CPL Article 210.

Thus, even if Gu’s trial was not a capital trial and she was able to avail herself of Summary Procedure, much of what was seen in court – the presentation of some evidence, her confession as the last word – would still have occurred.

Summary Procedure – Interesting Developments in the 2012 CPL Amendments

In addition to death penalty cases, the 2012 CPL Amendments list other situations where Summary Procedure is not prohibit.  Not surprisingly, in cases with a vulnerable defendant (blind, mute, deaf, or mentally ill) or in cases where there are multiple defendants and not all defendants have confessed.  See CPL Article 209(1) & (3).

But the 2012 CPL Amendments limits the use of Summary Procedure in one additional instance: where the case has a strong societal impact.  See Article 209(2).  This exception did not exist in the 1996 CPL articles governing Summary Procedure.  In adding this exception, it appears that the Chinese government acknowledges the potential political use of certain criminal trials.  Not surprisingly, that appears to be what happened in the case of Gu Kailai.

The Trial of Gu Kailai – Did the CCP Bite Itself in the Butt?

By , August 19, 2012

Happy times - Gu Kailai, Bo Xilai & son Bo Guagua

On Monday morning (Beijing time) the Hefei Intermediate Court will announce its verdict in the murder trial of Gu Kailai (pronounced Goo Kai-lie), wife of Chongqing’s purged Party Secretary and former rising star, Bo Xilai (pronounced Bwo See-lie).   The world will be waiting but not because the verdict is uncertain (Gu will be found guilty) or because she will receive the death penalty (likely her sentences will be commuted to death penalty with 2 year reprieve, a.k.a. life sentence); the world will be watching more because this absurd tale of kangaroo justice mixed with seemingly bizarre and inconsistent facts will finally come to an end.

August 9, 2012: The Eight Hour Murder Trial

Gu is accused of murdering one-time family friend and British businessman Neil Heywood in order to protect her son, Bo Guagua (pronounced Bwo Gwa-gwa).  While the eight-hour trial was publicized in the Chinese press, the evidence against Gu is flimsy at best.  Even the prosecutor’s arguments seemingly contradict the facts and common sense.  At the trial, prosecutors argued that Gu was motivated by a motherly (and as presented to the court mentally unstable) need to protect her adult son.

Allegedly, Heywood kidnapped Bo Guagua, kept him in his basement in England, and threatened his safety after a business deal went bust.  To

Neil Heywood, allegedly murdered by Gu Kailai

protect her son, in November 2011, Gu allegedly hatched a Tudor-esqe plan to convince Heywood to come to Chongqing where she met him at his hotel room, had him drink copious amounts of wine and tea, watched him vomit and then gave him a glass of water mixed with cyanide.  When Heywood’s dead body was discovered two days later, on November 16, 2011, by hotel staff, Gu allegedly convinced his wife in Beijing to cremate the body.

None of this makes sense, at least in terms of justice and accountability.  Since 2010, Gu’s son has lived in the United States, attending Harvard’s John F. Kennedy School of Government and Politics (he graduated May 2012).  At the very latest, Bo Guagua’s “kidnapping” would have occurred in early 2010, when he was a student at Oxford.  But wouldn’t Oxford have been aware of a missing student?  Wouldn’t a protective mother call the British police at the time to alert them of the kidnapping of her son?  Other than Gu’s “confession” and other witnesses’ statements read into the record by prosecutors, no tangible evidence was presented.

Gu Kailai – A Pawn in Her Husband’s Purge?

But this trial is not about sense, justice or accountability.  Instead, with its lack of evidence and with its fantastical soap-opera explanations, it is a song-and-dance number put on by the Chinese Communist Party (“CCP”) to explain the downfall of Gu’s husband, Bo Xilai.

Since 2007, Bo has had a successful run as Chongqing Party Secretary.  Starting in 2009, Bo lead a popular crack-down on corruption, prosecuting thousands of black market operatives.  Under Bo’s leadership, no one was safe; even corrupt politicians were prosecuted.   Chongqing, once the bastion of organized crime, had been cleaned up under Bo and its people were very happy.

As Chongqing Party Secretary, Bo also began efforts to revitalize Maoism.  Calling on the people to sing “red songs” and for the young to go to the countryside, Bo harkened back to the days of the Cultural Revolution.  Bo’s neo-Maoism was criticized in the Western press but was not opposed by all in Chongqing.  Namely, the “losers” of China’s economic development benefitted from Bo’s focus on public work projects and subsidized housing for the poor.

In Chongqing, Bo was becoming a powerful politician with an already regal pedigree (Bo is known as a “princeling,” the son of one of Communist China’s founding leaders).  By the middle of 2011, Bo had positioned himself perfectly for a powerful, national position with China’s change in leadership set for October 2012.  A position on the all-powerful Politburo Standing Committee was not out of reach.

But Bo’s downfall began, not with the November 14, 2011 death of Neil Heywood, but with Wang Lijun’s – Chongqing’s police chief and long-time Bo ally –  alleged attempted asylum at the U.S. Consulate in Chengdu.  On February 6, 2012, Wang fled to the U.S. Consulate, allegedly fearing for his life and confessing to U.S. Consulate staff the secrets of Bo Xilai’s reign.  The U.S. did not provide Wang with asylum; once he left the consulate, Chinese officials boarded Wang on a flight to Beijing to be disciplined by the Party.

On March 15, 2012, Bo was dismissed as Chongqing Party Secretary although retained his position on the Politburo (but not yet the Standing Committee).  On April 10, 2012, the Chinese government announced its investigation of Gu Kailai for the November 14, 2011 murder of Neil Heywood and dismissed Bo from his remaining Party positions, effectively purging him.

Gu at her murder trial.

But did Gu actually kill Neil Heywood?  With the minimal “evidence” presented at trial, it’s unclear.  It could be that Heywood unexpectedly died while in Chongqing or that someone else killed Heywood and that pinning the murder of Gu is a more pleasant way for the Party to explain Bo’s purge than the actual truth.

Does a One-Party Authoritarian Dictatorship Need to Explain Its Purge?

In the past, the CCP has purged Party leaders without any explanation.  But in the case of Bo – with his international stature, relative popularity among the people, good looks, and money – purging him without any explanation would raise eyebrows to say the least.  One thing the CCP cannot have as it jockeys its leadership transition, is a public who questions its legitimacy.

The internet, fervent micro-blogging and greater access to information (even if it is government-censored), leaves the CCP susceptible to rumors (or in some cases, to uncovering the truth).  Some Party-approved narrative is necessary to explain a popular politician’s purge.  Here, Bo’s downfall is his wife’s alleged murder of Neil Heywood.   The criminal trial – held in a Hefei, not Chongqing court – adds further legitimacy to the Party’s narrative.

But even more importantly, the trial serves as an important signaling device for China’s internet users.  By leaking some information to the government-controlled press from the trial regarding the Party-approved narrative, the Party puts Chinese society on notice as to the acceptable dialogue surrounding Bo’s purge.

But Will the Trial of Gu Kailai Ultimately Bite the CCP in the Butt? 

It could be that Gu killed Heywood.  It could also be that she didn’t and that her trial is being used to mask the real reasons for Bo’s purge.  But

Yes, some more so than others.

regardless, the flimsy manner in which Gu will likely be convicted gives the appearance of her innocence.  The facts just don’t make sense and not just to the Western audience.  Likely many in the Chinese audience see this as well (they just know that they can’t talk about it).

The Party put on this show trial to bolster its legitimacy.  But ultimately it’s this trial that will undermine the Party’s legitimacy.  The CCP has a serious trust problem with its people – its people know that food safety is flouted with abandon, that government officials’ children get away with murder, that government statistics on air pollution are a lie, and now that something weird is going on within the Party over Bo Xilai.  But a people’s trust of its own government is necessary to its ultimate success.  Yes, in every country, people question some aspect of their government or their history, but not to the extent that happens in China.  Without trust, at some point the government won’t be able to function. So the question emerges, how many lies can the CCP continue to tell before its house of cards comes tumbling down?

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