Opinion: On Bo Xilai and Rule of Law

This past weekend, the Jinan Intermediate People’s Court found Bo Xilai guilty bribetaking, embezzlement and abuse of power.  The trial has been widely publicized and discussed in China, with netizens on the blogsphere commenting from almost every angle, some in support of Bo, some in disgust of his alleged actions, and others neutral and looking at the bigger picture (see e.g. also this report).  South China Morning Post has this short summary of the court’s point-by-point verdict against Bo.

The Jinan Intermediate People’s Court accepted just two of the points former Chongqing party chief Bo Xilai made in his defence as it jailed him for life yesterday. The court, in a transcript released on its official weibo account, set out its point-by-point rebuttal of Bo’s defence. It also detailed ways in which he abused his power after the crimes of his wife, Gu Kailai, and the attempted defection to the US by his key lieutenant, Wang Lijun.

Rejected argument

Bo’s claim: I confessed under duress.

The court said: Under Chinese law, the use of corporal punishment, corporal punishment in disguised form, or spiritual torture to interrogate and extort confessions is illegal. The “pressure” Bo faced did not involve any such act.

Bo’s claim: I did not know that [Dalian -based billionaire] Xu Ming was paying the expenses for my wife and son [Bo Guagua].

The court said: Bo’s denial in court is invalid as his written statements before the trial matched the testimony of Xu Ming and others, showing he not only knew that Xu Ming was financing Bo Guagua’s study abroad but also understood well their deal – exchanging power for money. Whether Bo knows the exact amount or not makes no difference.

Bo’s claim: I had no knowledge of the villa in France [bought on behalf of Bo’s family with cash from Xu Ming].

The court said: Bo mentioned the villa in his statements before the court heard evidence and testimony from others, ruling out the possibility that he was forced to confess on the point.

Bo’s claim: Gu’s testimony was inadmissible as she was crazy and perjured me.

The court said: Gu’s testimony was given when she was in custody and off drugs.

Bo’s claim: Testimony from Xu Ming, Wang Lijun and others was questionable.

The court said: Their testimonials supported each other’s and were partially echoed by Bo’s own statements. There was no basis for Bo to question the veracity of the testimony.

Bo’s claim: Evidence regarding the French villa was collected outside the People’s Republic of China and was therefore inadmissible.

The court said: Though collected outside China, evidence can be admitted as long as the court approves it. Evidence regarding the French villa was clearly sourced (submitted to the court from French architect Patrick Devillers, Xu’s mistress Jiang Feng Dolby and from documents acquired from Xu’s home) and supported by testimonials.

Bo’s claim: The court lacked evidence that Gu was the true owner of the villa.

The court said: Gu had been the sole shareholder of the company that owned the company that owned the villa. Gu’s manipulation of the nominal owner of the villa showed Gu’s de facto ownership of the villa, even though the home was not registered under Gu’s name.

Accepted points

Bo’s claim: Gu’s testimonial that she withdrew US dollars and yuan from the family safe three times is invalid.

The court said: Gu’s testimonial could prove she did withdraw money, but could not prove a link to bribes Bo accepted from [former business associate] Tang Xiaolin .

Bo’s claim: Receipts submitted for Bo Guagua’s expenses, paid by Xu Ming, do not add up.

The court said: The key facts were clear, but some amounts were not supported by receipts. The court partially accepts the point and 1,343,211 yuan (HK$1.7 million) is removed from the sum his family is said to have received in bribes.

How Bo abused power

After Wang Lijun told Bo Xilai that Gu Kailai murdered [British businessman] Neil Heywood, Bo put the personnel on the case under investigation, tried to remove Wang from power and announced Wang’s removal without following the legal procedures. Wang’s testimony showed that his decision to flee was driven by fear for his own safety and was directly related to Bo’s abuse of power. After Wang fled, Bo allowed Gu to help decide how to handle the situation and agreed to blame Wang’s flight on mental illness. “Bo authorised the release of bogus news that Wang went on ‘holiday-style treatment’ while knowing his true whereabouts, misled public opinion and resulted in bad social impacts,” the court said.

Bo Xilai’s trial is widely covered in the Western press.  For example, you can find articles (often many) in the New York Times, Economist, Wall Street Journal, Foreign Affairs, etc.  So if you want to get a sense of the Western take on the trial, there is much to indulge.

However unlike the Chinese citizens’ and media’s varied and diverse take on the trial, the Western take seem to drone on a monotonic chant.

The chant goes along three monotonous lines that I will summarize as follows:

• Ok, so the Chinese government seems unexpectedly open about the trial, but it’s not a real trial, it’s just a show trial.   With the CCP continuing to control the judiciary, the trial is all but rigged, the results pre-determined.
• This is not about a trial of corruption, but a political struggle masked as a trial. Bo was a rising star with charisma.  The CCP is afraid of Bo staging a coup of some sort.  Ok, so quite unexpectedly, Bo has been allowed to defend vigorously himself in court.  But the results are all but determined.
• Another sign that the trial has been rigged: Bo has been kept from attacking the CCP in the trial.  The CCP is corrupt to the core, and Bo knows it.  Bo’s lavish lifestyle and corrupt act is the norm not the exception, and Bo and the CCP knows it, but the CCP and Bo has already reached some sort of agreement on how far he could go in the trial.

Before I make any comments, I want to note that if you want to just focus on the trial itself, I think it’s a good trial.  It’s good in the sense that it is relatively open, and the defendant is given a chance to defend, and procedures that are considered fair are followed.  And the verdict is reasonable and not outrageous.  That is, even if you don’t agree with it, we should all be able to imagine a reasonable person to find Bo, given the evidence presented in court, to be guilt of the crimes he had been charged. People can play armchair judge or jury … judge as people can play fantasy football or basketball … and nit-pick this and that, but overall, as a matter of law, this is a good trial.

Of course, the coverage in the West is not about the trial per se.    It is about the politics – as the West fathoms it – surrounding the case, which brings me to the three monotonous lines described above.

Is Bo Trial a Show Trial?  Has it Been Staged, Rigged, Predetermined?

Since I am not a privileged member of the Chinese court or CCP, which supposedly control the courts, I am not privy to any saucy information on how it might be rigged and pre-determined.  But I doubt most journalists or so-called “experts” quoted by the Western press do too.  On the surface, the Bo trial certainly did not exhibit much irregularities – not more than any of the other contested cases you might see.

But on this notion whether Bo’s trial is a show trial, rigged, and predetermined, I answer so what if it is? The Nuremberg Trials were also predetermined and a show trial designed to convey political messages.  But if it did bring bad people to justice – isn’t it a legitimate trial in and of itself?  There are many ways to justice, sometimes it involves a procedure driven trial, sometimes a politically driven trial – just as sometimes political justice is achieved through elections, sometimes riots, and yes, sometimes violent revolutions aimed at liberation….

So even if the trial is a show trial aimed at putting CCP in a good light as cracking down on corruption, if the result is to crack down on corruption, it is a legitimate trial in my eyes.  If it stops corruption – or make would-be bribetakers think twice, it’s all good.  In my eyes, a show trial, a predetermined trial does not necessarily mean that it is not a fair trial… or a legitimate trial.

In fact, I would go further and say that in many ways, all trials are show trials.  Evidence is presented, but through procedures that strike them out from or allows them in the trial, and through exercise of judgments (by judges or jury), a set of “good” evidence is arrived at.  Points of laws are also presented, but through judgement on each point, a series of judgments are arrived at.  Things are sanitized as technicalities – to give an air of neutrality – and then finality.  In reality, however, to make the decision on each set of evidence, each point of law, judgement almost always has to be made in context of the bigger picture.  Without it one will too often get absurd results.  This is the very art of the law.  It is what allows law to do justice.  But it is the same hand that allows one to manufacture whatever result one would like through the law.  The art of law, by its very nature, allows one guide” (impose if you will) whatever result you want, manipulating ever so slightly each decision made along the way, to the right decision.  This is not a distortion of the law.   It marks the very essence of law, for law per se has no soul.  The soul lies in the inarticulate, unspoken and hopefully just and wise tweaking of hooks along the way to get to the right result.

As for trials being pre-determined, I also advance that all trials are for the most part pre-determined by the politics of the time.   Depending on which age you focus on, owning slaves, rape and murder of Native Americans and theft of their lands, denying basic rights to persons based on ethnicity and nation of origin are all legal.  This occurs because the judiciary must necessarily move in ways compatible with the politics and norms of the times.  All trials must be determined according to the politics of the times and conform with those with power of the times.

In a recent post, I pointed out how lacking in substance judicial oversight of programs concerning national security is.  This occurs because the law must conform to the politics.  The idea of an independent judiciary that checks politics is thus a myth.  Perhaps the law can be used to bring down a powerful person or corporation, but that’s less the law checking the system, and more other powerful forces conveniently using (abusing, if you are on the wrong side) the law to bring the proper result.  We might have ideals of a just judge here and there trying to bringing about justice despite the system.  But judges rarely change the weather, and even if they do in a case here and there surprise and perturb the existing power, the court as a whole must follow the climate.  The courts can rarely afford to really cause a Constitutional crisis in which it will lose prestige and be deemed irrelevant.  An activist judge must do a subtle dance.  But he can dance only if the politics provides a tune.  The law is but a tool for the politics.  In all things that matter, it is all but pre-determined by the politics.

So is Bo’s trial more about political struggle than corruption?

I will leave this to those who read tea leaves for a living.  But I want to note that if Bo’s trial is about political struggle at the very top level of the Chinese leadership, you are not going to learn much by looking to the trial.  If the trial is all but staged as some fathom, the trial is but a means in a large stratagem of actions anyways.  It’s a show.  Enjoy.  Criticize it.  But don’t try to read tea leaves from it!

What I find fascinating is that a lot of people in the West seem to be genuinely surprised by the vigor of Bo’s defense?  Is this real?  Or is it just another trick up the CCP’s sleeve for the trial to look legitimate?  This kind of thinking reminds me a post I wrote about freedom of speech, where I cited a Harvard Study that alleged credits the Chinese government with giving most citizens tremendous freedom – freedom on par with that enjoyed by citizens in the West – but where the gov’t collectively maintains control by target nipping dissent in the bud.  Ignoring the false presumption that in the West, the government doesn’t target nip dissent it deems dangerous, the thinking is similar in both cases.  The Chinese gov’t seems to be building a society where citizens enjoy tremendous freedom … but it can’t be.  It must really be just a mirage!  The Chinese seem to be building a robust society ruled by law … but that also can’t be!  That must really be just a trick!

At a certain stage, one must face reality.  Either one discards one’s prejudices and come to see that if something looks like a duck and walks/quack/flies etc. like a duck, it is a duck and thus give the Chinese “credit” where “credit” is due.  Or one comes to the insight that notions of “rule of law” and “freedom” are empty rhetoric that means little outside of the context of how politics is played.  So “rule of law” and “freedom” is good because the Western system is (inexplicably) good, but it is bad, because the Chinese system is  (inexplicably) bad.

What about the idea that Bo’s trial should be a trial on the CCP or the Chinese political system as a whole?

This seem to be a favorite of many pundits in the West.  While I understand where they might be coming from, the problem is that the trial is only set up as a trial of single person – Bo – not the Chinese system a whole.  Indicting the Chinese system based on Bo’s individual actions is like indicting Republics based on the wayward misdeeds of a Richard Nixon, black Americans based on the wayward deeds of an Aaron Alexis, Catholics based on the misdeeds of a George Zimmerman.  The trial is focused on each as individuals – not their ethnicity, religion, or political affiliation or organization.  How ironic that so many who worship rule of law would misunderstand such basic tenants of the rule the law?

Isn’t it also ironic if the depiction of  Bo’s trial in the West is a also show trial, as some sort of pre-determined propaganda to badmouth the CCP by showcasing Bo as the quintessential CPP official?  But as with all show trials, even here there is a flip side.  Just as the Nuremberg trial brought only the enemy to justice, while ignoring Allies atrocities, so it is with Western depiction of the Bo’s trial as an indictment on the entire Chinese officialdom and system.  In a single trial in China, the West is able to find all sorts of political, legal and social deficiencies of Chinese society!  If it could only apply similar “logic” to its own deficiencies through its own cases of weird and deranged people, too?