Following the Sept. 22 sentencing of former Chongqing party chief Bo Xilai to life in prison on corruption charges, state-run media hailed the case as an example of China’s growing commitment to rule of law.
“The court not only made public the proceedings and results of the trial, but also gave the legal basis and reasoning for the judgment in the verdict announced Sunday,” the official Xinhua news agency said in a commentary. “It was a vivid demonstration of how the rule of law should be implemented.”
Bo, the son of revolutionary leader Bo Yibo, was a one-time rising star in the Communist Party. After tenures as mayor of the northeastern city of Dalian and minister of commerce, he took over the Chongqing party chief role in 2007. Supporters hailed the social and economic programs he implemented to turn the city around, but critics took issue with the Mao Zedong-era propaganda underlying his reforms. Despite being named one of Time magazine’s 100 most influential people in 2010, Bo’s fortunes changed when his former Chongqing police chief Wang Lijun sought refuge in the American consulate in Chengdu two years later. Wang revealed that Bo’s wife, Gu Kailai, had murdered British businessman and longtime family associate Neil Heywood. An investigation into the matter led to further discoveries of corruption in the southwestern Chinese city, which also contributed to Bo’s downfall.
In its statements through state-run media, the Chinese government is clearly stressing some aspects of rule of law over others. Most official commentaries have focused mainly not on the due process Bo received but the idea that his conviction shows even high-ranking officials aren’t above the law. After all, there was never any doubt he would be convicted. Chinese courts are under the control of the Communist Party and the most vigorous defense in the world would not have won him an acquittal against the party’s wishes.
For that reason, many observers saw just another political show trial. But some say the Chinese government might have delivered a lesson in due process, albeit inadvertently.
New York University School of Law Professor Jerome Cohen says the parts of the televised proceedings in which Bo defiantly denied accusations against him and questioned the motives of prosecution witnesses are likely to have an impact on the Chinese public.
“It showed someone actively defending himself against the government and it showed how to do it through cross-examination,” says Cohen. One disappointment, he says, was that Bo was unable to cross-examine his wife, Gu Kailai, whose testimony against her husband was partially shown through a video clip in court.
“It offered an opportunity for legal education [to the Chinese public],” Cohen adds. “The case will improve the understanding of legal process, and to inspire greater demand for it in other cases.”
Along with showing some of the trial on television, the Chinese government also offered minute-by-minute updates on the proceeding via China’s Twitter-like Weibo service.
“The level of openness and transparency was unprecedented. This case certainly shows hope of progress in China’s justice system,” says Gao Zicheng, a partner at Beijing Kangda Law Firm who has previously defended a number of other top officials charges with corruption.
Gao recalls that, when he defended former Shanghai party chief Chen Liangyu against bribery charges in 2008, he found out that the judges and prosecutors had actually been rehearsing the trial for six months. They had planned for every single move Chen might make, Gao says, “even the precise time he would go to the bathroom.”
The trial was practically stage-managed, even though, like many other proceedings involving senior officials, it was held behind closed doors. Chen was subsequently sentenced to 18 years in prison.
But some aren’t so sure Bo’s case is all that different.
James Zimmerman, managing partner of the Beijing office of Sheppard Mullin Richter & Hampton, says the whole thing struck him as “managed justice and the results a foregone conclusion.” He is skeptical that the information released constituted true transparency.
“The public heard what the Party wanted them to hear,” he says, noting that many of transcripts were clearly edited, redacted, or released only in part.
Zimmerman says the kind of corruption charged against Bo Xilai is evident among many other high-ranking officials who have so far avoided arrest. The difference was that Bo posed a political threat to the party leadership. “This case is really selective prosecution of a populist that was a clear distraction and challenge to the Party establishment,” he says.
Kenneth Zhou, a Beijing-based partner at Wilmer Cutler Pickering Hale and Dorr, says Bo’s high rank and public profile no doubt played a role in the government’s decision to be more open about his trial. But he doesn’t think it was just business as usual either.
“I won’t rule out some ‘show’ elements in it but I don’t agree it’s nothing but a political show,” says Zhou.
For one thing, the huge publicity and shocking developments that led up to the trial meant the world would be watching. “It’s a test for the Chinese government. Certain degree of transparency was expected.”
On top of that, Bo had been a rising star in Chinese politics, with significant achievements in his various positions and a considerable following as a result. Indeed, supporters protested outside the courthouse throughout Bo’s five-day trial, insisting that he had been falsely accused.
“These people have the right to know how the case is tried, and the government has the obligation to tell,” says Zhou.
Mao Lixin, a Beijing-based criminal defense lawyer at Shangquan Law Firm, says Bo’s defiance and denial of the charges certainly did not seem staged. Historically, he says, the defense in high-profile trials has been somewhat pro forma. He points to the 1980 Gang of Four trial in which the surviving leaders of the Cultural Revolution were tried. The Bo Xilai case is often described as China’s biggest political trial since then.
“From a legal point of view, the trial [of Gang of Four] was very premature,” says Mao. “Defense lawyers were appointed but they were accomplishing a political task rather than defending.”
Since then high-ranking officials charged with crimes have usually struck deals to cooperate and confess. That was the model in July when former railway minister Li Zhijun received a suspended death sentence for corruption.
But Bo was different. “Although the defendant and counsel did not say it out loud, they were pleading not guilty, and that alone is an improvement,” says Mao.
He was also surprised that the court allowed Bo to speak so much.
“Most of these trials are usually concluded as fast as possible, but in Bo’s case, the court by and large remained neutral between the defendant and the prosecutor, and allowed sufficient debate between the two,” adds Mao.
Cohen says the vast increase in the numbers of trained lawyers in China since the early 1980s is making a difference.
“It makes it tougher for the party to control,” he says. “Legal scholars, lawyers and increasingly demanding sophisticated and knowledgeable people want to see a better legal system established.”
Bo was represented by Li Guifang and Wang Zhaofeng, both partners at Beijing-based DeHeng Law Firm and both considered top criminal defense lawyers in China.
Cohen says Bo’s lawyers are very capable and he was surprised to see that the lawyers did not play as active a role in the trial as the defendant himself. Mao thinks Bo and his lawyers might have agreed that it was safer for him to do the talking. Chinese defense lawyers have been prosecuted for too zealously questioning evidence.
Bo’s impact on the system may not be over. Reuters recently cited anonymous sources in reporting that Bo is planning to appeal his life sentence. Cohen notes that the appeals process in China is even less transparent than its trials.
“Will there be a hearing?” he asks. “Will they release the transcript? Will he be able to call witnesses? Will he cross-examine them? I don’t think the leadership wants to have another public event like the one they just had.”
Also, he notes, the chances of success are so low, most defendants don’t bother to appeal their sentences. Many are warned life in prison will be worse if they do.
And nearly no one believes Bo has any chance of winning an appeal. “If he does appeal, it will not be because he truly wants his sentence reduced,” says Mao. “Given his ‘performance’ during the first trial, he will want a chance to make a scene before going away.”
If Bo does appeal, says Cohen, it could potentially add further to the Chinese public’s legal education of what an appeal is and the relationship between a higher court and lower court.
But whatever lessons Bo’s case does impart, there’s no obvious way that it’s going to impact the system for anyone else anytime soon.
“It’s a good start, but let’s not overestimate its influence on the reform of the entire system,” says Zhou. “China still has a long way to go in terms of upholding due process of law. In most of the cases, there is no such transparency or openness and justice is not served.”