Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Friday, August 23, 2013

Random thoughts from day 2 of the Bo Xilai trial

I've finally gone through the transcripts from day 2 of the Bo Xilai trial. Here are a few observations, in no particular order:

  • As in day 1, there's an awful lot of evidence about stuff Gu Kailai did and varions things Xu Ming did for the family, but almost nothing that suggests a quid pro quo delivered by Bo in exchange for all these goodies. At one point Bo (pretty much correctly) pointed out that 99% of what the prosecutor was saying was irrelevant to the question of his guilt. The only direct piece of evidence I can recall is Bo's own confession from his time in shuanggui (Party disciplinary) detention, in which he says that he did a lot for Xu Ming in return, including some quite unusual favors. He explicitly uses the word "trade" (交易). 
  • Using Bo's shuanggui confession against him is problematic. Evidence gathered in the shuanggui process isn't supposed to be admissible in court; the prosecution is supposed to re-gather the evidence. Even unencumbered by a "fruit of the poisonous tree" doctrine, however, it seems they couldn't get Bo to repeat his confession in the post-shuanggui stage - i.e., the formal, lawful investigative stage - and so had to fall back on this one. Bo has asserted the illegality of this evidence and asked that it be excluded.
  • Bo says at one point that when Gu Kailai spoke about her murdering of Neil Heywood, she said she felt like the famous assassin Jing Ke. Has Bo ever previously admitted to knowing (before she was accused, of course) that Gu Kailai murdered Heywood? He doesn't specify when she said this to him, but presumably the two wouldn't have had many chances to speak once she came under suspicion and was in detention.
  • As usual in criminal trials, most witnesses fail to appear in court, despite the rule of the Law on Criminal Procedure that they should ordinarily do so. Art. 59 of the CPL says, "The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders" (emphasis added). Pretty clear, right? Now, there are other rules in the CPL that contemplate admissible testimony from witnesses that do not show up in court (e.g., Art. 187 and 190), so clearly some exceptions are allowed. But it's hard to read the law as allowing exceptions to be so numerous as to become the rule, which is what we've ended up with.
  • The grossest twisting of the rules on witnesses appears in the debate over Gu Kailai's testimony. Her testimony has been delivered via a written statement and a videotaped statement. According to the transcripts posted by the Jinan court, both Bo and the prosecution requested that she appear in court to testify, and the court agreed with the request. But when they went to the prison to ask that she come along, she refused. The court then, incredibly, cited Art. 188(1) of the CPL, which states that while reluctant witnesses can be required to appear in court, this does not apply to the spouse, children, or parents of the defendant. Now, I'm pretty sure this provision was intended to protect the defendant and his close relatives; it expresses something like a spousal privilege. Here it's being used perversely to prevent the defendant from directly cross-examining a hostile witness.
  • Finally, what was the mysterious meat from a rare African animal that Guagua brought back from his African trip? It was in a wooden box and was supposed to be eaten raw. Bo refused (understandably, I must say - it couldn't have been too fresh by that time) so they cooked it. Gu Kailai says it lasted a month. Could this have been it?

UPDATE (Aug. 25, 2013): Yesterday I posted this text on my China-side blog (which I use as a mirror blog because this one is blocked in China); today I found that the post had been deleted by the blog host. I wonder which part of this analysis hit a nerve?

August 23, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Wednesday, August 21, 2013

The Bo Xilai Trial and the Rule of Law

Here's a piece I just published on The Atlantic's web site.

August 21, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Monday, August 12, 2013

Pictures at an execution

Here’s what purports to be a video of an execution shot by one of a group of local spectators (clearly told in advance and expecting it) on a nearby hilltop.

Given Xinhua's recent unhappy experience with posting pictures of an execution that turned out to be from a fetish porn site, let me make clear that I can’t vouch for its authenticity; the procedure does seem shockingly casual (as is the reaction of the spectators, who don't seem to be seeing this kind of thing for the first time), but who knows? China is a big country and just about anything can happen at least once in at least one place. Can anyone identify the spectators’ dialect? It sounds vaguely Cantonese but not completely so.


August 12, 2013 in News - Chinese Law | Permalink | Comments (0)

Thursday, August 8, 2013

Jailhouse statement of Xu Zhiyong

A day or two ago, former Singapore Prime Minister and glorified mayor Lee Kuan Yew made the amazing statement that Xi Jinping could be compared to Nelson Mandela. Personally, I'm afraid that the qualities needed to become capo di tutti capi in the Chinese Communist Party are not quite the same qualities needed to be a Mandela. I thought of that statement today when I came across this video of a jailhouse statement from Xu Zhiyong, the recently detained rights activist. This is a man who does seem to have those qualities.

Perhaps one day we will find that he has feet of clay. Well, so did Mandela and Martin Luther King. Xu is a pretty remarkable guy and his continued detention should not be forgotten. Of course he is not the first and won't be the last, and he is far from the worst treated. (Ni Yulan and Chen Guangcheng, for example, as well as their families, have all suffered atrociously.) But we can't always pick our symbols with perfect logical consistency. For some reason, Xu's detention seems to shout particularly loudly: What kind of government cannot tolerate even a person like this?

Here's the video; the text of his statement in Chinese and English (my translation) is below it.

倡导大家做公民,堂堂正正做公民,践行宪法规定的公民权利,履行公民责任;推动教育平权,随迁子女就地高考;呼吁官员财产公示。在这荒诞的时代,这就是我的三大罪状。 社会进步总得有人付出代价,我愿意为自由、公义、爱的信仰承担一切代价。无论这个社会怎么样,溃败,荒诞,这个国家需要一群勇敢的公民站出来,坚守信仰,把权利,责任,和梦想当真。 我很骄傲在自己的姓名面前署上“公民”两个字,希望大家也这样,在自己的名字前署上“公民”两个字。只要我们大家团结起来,共同努力,把公民的权利当真,把公民的身份当真,共同推动国家的民主,法治,公平,正义。我们一定能够建设一个自由、公义、爱的美好中国。

I encouraged everyone to be a citizen, to proudly and forthrightly be a citizen, to practice their rights as citizens set forth in the constitution and to undertake their responsibilities as citizens; I promoted equal rights in education and allowing children to take the university examination where they have followed their parents to live; I called for officials to disclose their assets. In these absurd times, those are my three crimes. Social progress always requires some people to pay a price. I am willing to pay any price for my belief in freedom, justice, and love. No matter how collapsed or absurd this society is, this country needs a group of brave citizens who will stand forth and hold fast to their beliefs, and will make a reality of their rights, responsibilities, and dreams. I’m proud to put the word ‘citizen’ before my name, and I hope everyone will likewise put the word ‘citizen’ before their name. As long as we unite and work together to make citizens’ rights a reality, and together promote democracy, rule of law, fairness and justice in our country, surely we can build a beautiful China of freedom, justice, and love.

August 8, 2013 in Commentary, News - Chinese Law | Permalink | Comments (6)