September 08, 2012
Compensation for work-related injuries in ChinaHere's a report by the Hong Kong-based China Labour Bulletin. CLB is the vehicle for exiled June 4th labor activist Han Dongfang and does great work.
Possession of state secrets in the Chinese law on defection
In my last post I translated the part of the Criminal Law dealing with defection. It calls for enhanced punishment for state personnel who defect while possessing state secrets. The Chinese term used here for "possess" is 掌握 zhangwo. A colleague emailed me to note that this should be understood here to mean simply knowing state secrets, not necessarily physically possessing them. I completely agree. While zhangwo literally means "to grasp in the palm of the hand", when I think about it I don't think I've ever heard it used other than metaphorically.
On the other hand, that poses a problem: since only state personnel can commit this crime, and the definition of state secrets is so broad that it is impossible to imagine any state employee who does not know at least some state secrets, what is intended by the language about enhanced punishment? Who would not be eligible?
September 06, 2012
Can Wang Lijun get off on a technicality?
Sure—when pigs fly. That was just to get your attention. But there is indeed an interesting technical flaw in one of the charges against him. (If you can’t wait, see my third point below.)
Xinhua has reported [Chinese | English] that Wang Lijun, the ex-Chongqing police chief and former ally of Bo Xilai until their spectacular split led to Wang’s flight to the US consulate in Chengdu, will be charged with perversion of the law for private purposes (徇私枉法), defection (叛逃), abuse of power (滥用职权) (presumably Article 391 of the Criminal Law, although there are other possibilities), and taking bribes (受贿).
The crime of defection is set forth in Article 109 of the Criminal Law:
国家机关工作人员在履行公务期间，擅离岗位，叛逃境外或者在境外叛逃的，危害中华人民共和国国家安全的，处五年以下有期徒刑、拘役、管制或者剥夺政治权利；情节严重的，处五年以上十年以下有期徒刑。When personnel of state organs, during the period when they are performing public duties, leave their post without permission and defect to beyond the border or defect while beyond the border, thereby endangering the state security of the People’s Republic of China, they shall be punished by fixed-term imprisonment, detention, control, or the deprivation of political rights. Where the circumstances are serious, the punishment shall be from five to ten years of fixed-term imprisonment.
掌握国家秘密的国家工作人员叛逃境外或者在境外叛逃的，依照前款的规定从重处罚。When personnel of state organs who are in possession of state secrets defect to beyond the border or defect while beyond the border, they shall be given a relatively heavy punishment under the terms of the preceding paragraph.
There are a number of interesting points to make about this rule. First, remarkably enough, defection is not defined either here or, as far as a quick bit of research reveals, anywhere else in the Chinese legal system. It apparently involves going abroad or staying abroad without permission, and is a crime that can be committed only by state personnel while they are performing public duties. I’m not sure how the latter restrictive condition works – does it mean simply during the period of their employment? What if it happens while they are on vacation? What the actual prohibited act is, though, remains unclear. Is it simply going or staying abroad without permission? We can’t bring our understanding of the word “defect” to bear here, because of course that’s just a handy translation people use for the Chinese term pantao 叛逃. Whether it’s a correct translation should be the conclusion of an analysis, not its starting point.
Second, the prescribed punishment for defection is surprisingly (to me, anyway) light: up to five years in most cases, and not more than ten years even in serious cases where you possess state secrets. Note, however, that revealing state secrets is separately punishable by up to fifteen years’ imprisonment in especially serious cases (Article 111). On the other hand—and this is very interesting—Wang has not been charged with revealing state secrets. In a more transparent system, you might chalk this up to the government’s reluctance to produce evidence about those secrets, but I’m not sure that’s the answer in China. There can hardly be any question that if Wang opened his mouth in the US consulate, he probably is guilty of this crime. After all, the ambit of “state secrets” in China is extremely broad; Zheng Enchong was found guilty of transmitting state secrets abroad when the item in question was a publicly available Chinese newspaper article.
The crimes of perversion of the law, abuse of power, and bribe-taking are respectively punishable by a maximum of 15 years in especially serious cases, 7 years in especially serious cases, and death in especially serious cases. In each case, however, substantially lower punishments of at most a few years’ imprisonment are also possible. What will be interesting to see is whether fleeing to a foreign consulate and revealing at best highly embarrassing and at worst highly damaging secrets is deemed to be less threatening to the state than, say, drafting a political manifesto, for which Liu Xiaobo received an 11-year sentence.
Third—and here’s the interesting technicality—Wang Lijun did not violate the statute on defection as written. Whatever “defection” might mean, there’s no question that it must involve the element of “beyond the border”. (The particular term used, 境外 jingwai, refers to areas beyond the borders of mainland China, that is, all foreign countries plus Hong Kong, Macao, and Taiwan.) Wang Lijun never went beyond the borders of mainland China; contrary to what is commonly supposed, the area occupied by foreign diplomatic missions is not foreign soil but remains Chinese territory. I have no doubt that this is simply a legislative oversight, and that the legislators would have included foreign diplomatic missions had they thought about it. And I would not label as unreasonable an intent-oriented interpretation of the statute as including foreign diplomatic missions. But it’s important to note that this problem exists, even if it’s by no means insoluble. I wonder whether the prosecuting authorities will notice it and, if so, how they will deal with it.
August 22, 2012
New report on abuse of psychiatry in China
The organization China Human Rights Defenders has just published a report on abuse of involuntary psychiatric commitment in China. Here's a summary from The Daily Beast.
As far as I know, the most recent full-scale treatment of this issue is Robin Munro's path-breaking China's Psychiatric Inquisition: Dissent, Psychiatry and the Law in Post-1949 China (London: Wildy, Simmonds and Hill, 2006). I have a blog post about it and the controversy his work engendered here. (Bottom line: Munro 1, critics 0.)
Involuntary commitment is an area desperately in need of legal standards. The abuses that occur now can't be blamed on authorities flouting or bending existing law. They don't need to bother; the existing legal regime pretty much gives them carte blanche to involuntarily commit anyone by just saying it's necessary.
Without some standards, I have an uneasy feeling that if current efforts to abolish re-education through labor in its current form succeed, we'll suddenly - through the operation of a kind of Law of Conservation of Police Discretion - see an increase in the number of supposedly crazy people needing commitment.
August 21, 2012
More on sentence reductions and a little on the Gu Kailai case
In an earlier post on sentence reductions, I expressed puzzlement that a 2011 Supreme People’s Court directive seemed to go directly against a rule established by the National People’s Congress Standing Committee just a few months earlier. Two contributors to the Chinalaw listserv, Pamela Phan and Susan Trevaskes, have suggested answers to my puzzlement: the SPC directive doesn’t apply to people who have been declared subject to only limited sentence reduction. This makes sense to me. Putting it all together, then, this is how I see the Chinese rules on sentence reduction for good behavior (meaning “establishing merit” or repentance, both as defined in relevant documents). Please note that the following discussion doesn’t apply to sentence reduction based on other things, such as medical parole.
- As a general principle, any sentence can be reduced for good behavior. Life sentences can be reduced down as far as 13 years of actual time served, and non-life (“fixed-term”) sentences can be reduced down as far as half of the original sentence in actual time served (Criminal Law, Art. 78). Note that a non-life sentence of imprisonment can’t exceed 15 years for a single crime and 20 years for multiple crimes. The timing issue is a little bit confusing, because Art. 80 of the Criminal Law says that when a life sentence is reduced to a fixed-term sentence, you start counting the fixed term from the date of the commutation. But counting that way seems inconsistent with Article 78’s notion of “actual time served” (实际执行的刑期).
- Life sentences can in no circumstances be reduced below 13 years, counting from the date the life sentence is imposed (2011 SPC directive). This adds clarity to the confusing point highlighted above.
- These rules are modified in the case of suspended death sentences that are later commuted.
- A suspended death sentence can be commuted to a life sentence or to a fixed-term sentence of 25 years (Criminal Law, Art. 50).
- Such commuted sentences are usually eligible for further reduction in the normal way, but actual time served cannot be less than 15 years following the initial commutation (2011 SPC directive, Art. 9, Para. 2) (in other words, 17 years from the date the suspended death sentence is imposed). However—
- A court may, at the time of sentencing someone to a suspended death sentence where certain crimes are involved (including intentional homicide), declare that any post-commutation reductions in sentence shall be limited (Art. 50, Criminal Law). In that case, actual time served must be either 25 years (where the sentence was commuted to life imprisonment) or 20 years (where it was commuted to 25 years) (Art. 78, Criminal Law). I think that in both cases, one would start counting from the end of the two-year suspended period, but am not sure.
Under this analysis, the 2011 SPC directive does not contradict the provisions of the Criminal Code but does indeed add flesh to them.
I should note that in the Gu Kailai case, she was convicted of intentional homicide, but we haven’t been told that the court imposed any limitations on subsequent commutations. (It could have, but apparently did not.) Therefore, she is eligible for sentence reductions that would ultimately see her free in 17 years. Let me stress again that this analysis ignores the possibilities of her getting out earlier on the grounds of medical parole.
August 20, 2012
Sentencing philosophy in Chinese criminal law: Zhang Xiaojun versus Liu Xiaobo
According to the official indictment, Liu Xiaobo committed the following acts:
- He published a number of “inciting articles” containing “rumors and slanders” (no slanders against any persons living or dead are mentioned in the indictment).
- Together with others, he "drafted and concocted" Charter 08.
- He distributed Charter 08 via e-mail to overseas websites and posted it on overseas websites.
My CNN op-ed on the Gu Kailai trial
Now that the verdict is out, here's my slightly updated CNN op-ed on the whole thing.
Where Gu Kailai will likely spend her time: China's Club Fed
Here's a profile of Qincheng (秦城) Prison, where high-ranking prisoners stay and where the cognoscenti figure Gu Kailai will go (assuming she's not spirited off to a nice tropical island somewhere).
August 19, 2012
How much time will Gu Kailai actually have to serve under Chinese law?
Gu Kailai has been sentenced to death with a two-year suspension. Under Art. 50 of the Criminal Law, if she commits no new intentional crimes while in prison, that sentence will be commuted after two years to life imprisonment. It can even be commuted to 25 years’ imprisonment if she “genuinely demonstrates major merit” (确有重大立功表现). And further reductions are possible after the initial commutation.
Under Art. 78 of the Criminal Law and a 2011 Supreme People’s Court directive, those sentenced to life imprisonment or a term of years (including as a result of a commuted death sentence) may have their sentences reduced for good behavior (that's my own term; Chinese law speaks of showing repentance or establishing merit) during their imprisonment. And various forms of good behavior are listed, including (in the 2011 SPC directive) paying compensation. Presumably that will not be a problem for Gu.
But there are limits: Art. 78 of the Criminal Law states that a death sentence commuted to life imprisonment may under no circumstances be reduced to less than 25 years of actual time served, and a death sentence commuted to 25 years’ imprisonment may under no circumstances be reduced to less than 20 years of actual time served, in each case counting from the date of the original commutation. And even less is possible: in its 2011 directive, the Supreme People’s Court simply overrode the Criminal Law and stated that a commuted sentence could ultimately be reduced to as little as 15 years of actual time served. [ADDITION: A colleague also points out the intriguing possibilities of medical parole even earlier after just 9 years of actual time served: see this post from Dui Hua Foundation.]
I can’t resist digressing here to point out that the 2011 SPC directive is pretty remarkable: only a few months before, on February 5, 2011, the National People’s Congress Standing Committee had passed an amendment to the Criminal Law, effective May 1, that specifically established the 25/20-year rule. Yet on Nov. 21, 2011, the Supreme People’s Court passed its directive (effective July 1, 2012) overriding this rule. Needless to say, the SPC has absolutely no authority to directly contradict NPC legislation in this way. They can’t even claim, as is often done, that the existing rule was out of date and simply needed to be changed.
August 17, 2012
Does it matter that Xinhua called the evidence against Gu Kailai “irrefutable”?
There have been some rumblings in the press about Xinhua having declared the evidence against Gu Kailai “irrefutable” before she even went to trial. The implication of these comments seems (at least to me) to be that Xinhua’s declaring the evidence irrefutable before the trial somehow indicates that the fix was in.
Now, just to be clear about this, I am not disputing the point that the verdict is a foregone conclusion. It will come out on Monday, and I don’t think I’m going out on a limb to predict that she will be found guilty. But it’s important to point out that the Chinese system is designed to prevent cases about which there is any uncertainty about the evidence from getting to the trial stage in the first place. Weak cases are supposed to be sent back for more investigation or else dismissed. That design is not necessarily inconsistent with producing a just result.
In other words, if everyone involved in the investigation and prosecution of the Gu case did their jobs in an utterly impartial, objective, and highly competent way, Xinhua—and indeed any observer—would be justified in concluding that the evidence must be pretty strong. Therefore, we can’t take Xinhua’s statement as prima facie evidence that the whole proceedings are biased. Sure, China’s conviction rate is incredibly high: from 1997 through 2005, only 0.66% of criminal defendants upon whom judgment was pronounced were found innocent. The acquittal rate in South Korea, however, is even lower: 0.5%. In Japan, it’s below 1%. (I’ve blogged on this here, with a note on US acquittal rates as well.) That might be because a lot of innocent people get convicted in South Korea and Japan, but it might also be because prosecutorial incentives are such that prosecutors don’t want to bring cases with the remotest chance of losing.
China is not, of course, South Korea or Japan, the biggest difference (relevant to this discussion) being that judges in South Korea and Japan have much more independence. Judges in China are subject to the same political leadership—the local Party Political-Legal Commission—as prosecutors and police. Still, the point remains that when the system functions as it is formally supposed to—a way that is by no means unique in the world, inherently unfair, or confined to single-party dictatorships—we would still expect to see a very high conviction rate.
August 16, 2012
Gu Kailai verdict scheduled for August 20th; my op-ed
The Hefei Intermediate People's Court will announce the verdict in the Gu Kailai trial at 9 a.m. (local time) on August 20th.
In the meantime, here's an op-ed on the trial that I've published on CNN's site. Please note that it does not even attempt to deal with the problems in the official narrative, and I take no responsibility for the title. Contrary to what some of the commentators seem to think, it's not an argument that Gu has been railroaded.
Lawyers complain about re-education through labor
Here's a report (in Chinese) about an open letter submitted by ten lawyers to the Ministry of Justice and the Ministry of Public Security proposing changes in the system of Re-education Through Labor (劳动教养) (RETL). This follows on the heels of the Tang Hui incident, where a woman was sentenced to RETL for petitioning too persistently about the case of her daughter, who at age 11 had been kidnapped, raped, and forced into prostitution. (She felt the perpetrators, with police collusion, had been inadequately punished.) After her case was publicized, she was released following an online outcry. (Post hoc ergo propter hoc? You be the judge.)
In the Sun Zhigang case, after the death of a young man in a Custody and Repatriation center in 2003, three young legal scholars famously wrote to the National People's Congress urging that the long-controversial system of C&R be abolished for unconstitutionality. It was indeed abolished (although not necessarily as a direct result) shortly afterwards. Could Tang Hui be the Sun Zhigang of RETL? Or does someone need to actually die in this system first?
August 15, 2012
Hu Shuli on the Gu Kailai case
Here's Hu Shuli on the Gu Kailai case. It's a pretty bold piece, proclaiming as it does that the system, functioning normally, would have let her get away with it: "If it weren't for Wang Lijun's stay in the U.S. consulate, there would not be any public information about it and no justice for the dead. The criminal would still be at large, holding an untarnished reputation as a high-powered lawyer and spouse of a senior official."
Hu also points out the irony of all this taking place amid a supposed "law and order" crackdown on organized crime: "All this happened in Chongqing, where a campaign against the local mafia was touted as a major achievement in governance. It also happened in China, a country in which the constitution upholds the rule of law. What Bogu and her associates have proved is that they were the strongest criminal gang."
Why Bo Xilai ever was, and remains, an idol of the new left is beyond me.
August 12, 2012
Random thoughts on the Gu Kailai trial
Here are some more or less random thoughts on the Gu Kailai trial. For this analysis, I’m going to rely primarily on three sources, abbreviated as follows:
3. Court Statement: A statement from the Hefei Intermediate People’s Court read out to the press after the trial by a court official on August 9th.
I’ll start with some random observations and then conclude with some summarizing thoughts.
Random Observations and Questions
Zhao Xiangcha. Who is Zhao Xiangcha, why was he allowed to attend the trial, and why did he feel it was fine to publish a report of the trial on line? This was a trial so sensitive that attendance was strictly controlled, and by Zhao’s own account even his pencil was confiscated. In 1980, Liu Qing was sentenced to prison for (among other things) distributing a transcript (not alleged to be inaccurate) of Wei Jingsheng’s supposedly public trial. Why was Zhao Xiangcha confident he could do this?
Why Hefei? The Xinhua Report says, “To ensure an impartial handling of the case, the Ministry of Public Security, the Supreme People's Procuratorate and the Supreme People's Court designated the Public Security Bureau of Hefei City, the People's Procuratorate of Hefei City and the Intermediate People's Court of Hefei City to carry out the investigation, prosecution and trial of the case, respectively.” It is not clear what the legal basis was for this trio of designations. I have discussed this at greater length elsewhere.
The real reason for not holding the trial in the obvious candidate location, Chongqing, can be easily guessed: too many Gu/Bo friends in the police, procuracy, and courts. But why, of all other possible places, choose Hefei? Some people say it’s because Hu Jintao has connections there; others say it’s because Supreme People’s Court president Wang Shengjun has connections there. More interesting is why these connections lead to the selection of Hefei. According to some people I’ve talked to, it’s not just because those connections make the place more reliable. After all, if the top leaders decide on a verdict, is there any court in China that’s going to defy them? No, apparently it boils down to (why didn’t we guess?) money. Wherever the investigation and trial are held, the center is going to pour a lot of money down there. This is a chance for the locals to make out like bandits. Thus, lots of places in China want to be given jurisdiction over this matter, and the place with the best connections wins. Caution: this is all just unsourced speculation.
Residential surveillance. The Xinhua Report says that Gu Kailai was put under residential surveillance (jianshi juzhu监视居住) on March 15, 2012. This raises interesting questions. My recollection is that she disappeared around this time. If she was being held in residential surveillance, where was the residence? Presumably she had residences in Chongqing and Beijing; either place is possible. But nobody knew where she was. Well, maybe she was home but just wasn’t answering the door. But if she was in Beijing or Chongqing, how could the Hefei police, who were in charge of the investigation, enforce it there? Maybe there are provisions for interjurisdictional cooperation in this kind of thing. It seems at least as likely to me, though, that she was subject to the recently legalized, but at the time illegal, practice of the police putting you under residential surveillance at their residence – some kind of guest house with bars on the windows and large guards at the door, possibly in Hefei. But this is all speculation.
Did Gu get to select her own counsel? China’s Criminal Procedure Law (Articles 32, 33) seems to promise a defendant the right to have a lawyer of her choosing, and the Xinhua Report says Gu exercised this right. But there is some reason to be skeptical. On June 10th, Reuters quoted anonymous sources as saying that Shen Zhigeng, a Beijing lawyer experienced in defending anti-graft cases, had been hired by Gu’s family. (This is not quite the same, of course, as saying he had been hired to represent Gu in her criminal trial.) The Zhao Report says that this choice was vetoed by the authorities and that she was required to accept Jiang Min, a prominent Hefei attorney, as her lawyer. Is there any fire behind this smoke? There are two reasons for thinking that maybe there is. First, Shen was evasive when asked by reporters to confirm whether he was representing Gu.
When Reuters called Shen on Sunday, he would neither confirm nor deny he was working for Gu or her family.
"It's still not for certain. I still haven't met with her yet," Shen said, when asked if he was Gu's attorney.
"The judicial (authorities) don't allow comment on these things," he added, when pressed to explain his possible role. "Now the judicial bureau doesn't allow us to have contact with the media," he said.
It’s certainly not true that judicial authorities as a general rule don’t allow lawyers to say whether they are representing particular clients. Thus, if authorities specifically told him not to say anything about this case, that implies that he was connected with it in some way.
Second, it’s hard to understand why Gu would voluntarily have chosen Jiang Min to represent her, and easy to understand why the authorities would have chosen him. From his law-firm bio, it’s clear that he’s a solidly establishment lawyer: a vice chairman of the All-China Lawyers Association and the chairman of the Anhui Lawyers Association. On the other hand, his CV is utterly innocent of any indication of experience in criminal defense, let alone death penalty defense. I don’t even see courtroom experience of any kind. He’s a financial and commercial law expert, apparently mostly transaction-side. He may be very capable at what he does, but is this the résumé you really want in your death penalty lawyer?
“Public” trial. Contrary to what the law would seem to require, Gu did not get a public trial. Attendance was restricted to a government-selected audience. Art. 11 of the Criminal Procedure Law says that unless the law otherwise provides, all trials shall be public. There are exceptions for various kinds of cases – for example, cases involving state secrets (Art. 152). But we have seen no statement invoking any of these exceptions, and indeed the Xinhua Report declares that the trial was a public one. Obviously, if “public trial” just means “trial with a selected audience”, then it has no meaning at all. And this isn’t just me imposing my own interpretation on Chinese legal terms. Fake “public” trials of this kind are common in China, and Chinese commentators make the same point.
Failure of witnesses to appear in court. As far as we know from any of the accounts, the testimony of a number of witnesses was presented, but only one or more (the Chinese source is ambiguous) experts (jiandingren 鉴定人) appeared in court. The Chinese term here refers, I believe, to people such as the guy from the police lab who testifies about what the blood test showed. Chinese law does not in so many words actually require witnesses to show up in court, although that would be a plausible interpretation of what it does say. It requires that testimony be subject to questioning (xunwen 讯问) and confrontation (zhizheng 质证), and it’s hard to see how those rights could be properly exercised against a piece of paper read out by the prosecution. Nevertheless, the Gu trial is far from unique in this respect. One study from about a decade ago found that 85% of trial testimony was simply read aloud in the court and not subject to cross-examination. Indeed, the same study found that in 243 cases of witness testimony being read aloud in the absence of the witness, in 58 cases the name of the witness was not even revealed. No witnesses at all showed up in the Li Zhuang trial in Chongqing. While Gu Kailai may have gotten a raw deal in this sense, it was far from a uniquely raw deal.
Did she indeed confess to everything? All the reports state in various ways that Gu confessed. The Zhao Report says, “She fully admitted her acts in the case without reservation; she offered no objections.” The Xinhua Report says that she “confessed to intentional homicide”. It seems, however, that in fact she did question parts of the prosecution’s case.
Her lawyer raised a number of questions about the prosecution’s case.
- There was no proof that the poison was cyanide, and the primary symptoms of cyanide poisoning were not present. (Zhao Report)
- There were problems with the chain of custody of the blood sample. (Zhao Report, Xinhua Report)
- Heywood’s family had a history of cardiovascular disease; excessive drinking could have brought on heart failure. The level of poison found was quite low. A charge of attempted murder might be more appropriate. (Zhao Report)
- There was evidence of mysterious doings on the balcony of Heywood’s room after Gu left. Maybe somebody else was responsible. (Zhao Report)
- She should not be held totally mentally responsible. (Zhao Report)
Gu herself is said to have objected to the introduction of written testimony from Wang Lijun (Wang did not show up at trial), saying it was concocted. (Zhao Report)
(1) When did Heywood meet the Bo family? According to the trial reports, Heywood first met Bo Guagua in England in 2003 (Zhao Report). His first contact with Gu was in 2005 (Zhao Report, Xinhua Report). This doesn’t fit with what we thought we knew before this. The general understanding was that Heywood met the Bo family when he was in Dalian, and that he subsequently helped Guagua get into Harrow. I have no way of knowing which account is true, and just want to note the contradiction here.
(2) When did Heywood threaten Guagua? According to the reports, Gu said she killed Heywood because she feared he was an active, ongoing threat to her son’s life. This doesn’t make sense to me. If her testimony is accurate, Heywood exercised some sort of coercive detention over her son Guagua at some point in an attempt to get Gu to cough up some money he felt he was owed. If this indeed occurred, it must have been when Guagua was in the UK. I haven’t been able to find any news report that specifically says when Guagua started his Master in Public Policy degree at Harvard’s Kennedy School of Government, but we know he graduated in May 2012, so it was probably in the fall of 2010. In other words, we are supposed to believe that as a result of something that happened perhaps years earlier, Gu in November of 2011 felt that a Briton living in China posed an ongoing mortal threat to her son, who had been out of England and living in Cambridge, Massachusetts for more than a year already. According to the Xinhua Report, Gu said, “During those days last November, I suffered a mental breakdown after learning that my son was in jeopardy”. Last November? The Zhao Report says this whole event took place in England. Are we now being told that this “soft detention” took place while Guagua was attending the Kennedy School in Cambridge, Massachusetts? And wasn’t Heywood in Beijing at the time? Something is missing here.
Role of the Adjudication Committee. The Court Statement, somewhat unusually, openly acknowledges the role the Adjudication Committee will play in deciding the case. The Adjudication Committee is a group of senior court officials with the power under the law to make the final decision in any case in which they may interest themselves. Its role is controversial in the Chinese legal community because, among other things, it means that cases can be decided by people who weren’t at the trial. Here, I don’t think it will make a big difference. In any case, however, we have a statement that the judges who presided will not make the final decision. (I don’t want to call it an “admission”, because a role for the AC is not inconsistent with how the system is formally supposed to function.) There’s a terrific paper by law professor HE Xin on the role of the Adjudication Committee that has just been posted on the Social Science Research Network; the author had access to a year’s worth of meeting minutes of a court’s Adjudication Committee. OK, it’s a single data point, but He does a wonderful job in using it to the fullest. Highly recommended, indeed indispensable, for understanding how China’s courts operate.
Heywood relatives and friends. The Court Statement and the Xinhua Report state that relatives and friends of Heywood attended the trial. Who were they? The Court Statement says that an attorney representing Heywood’s family spoke in relation to the criminal part of the trial, saying he would “respect the court’s just verdict.” We don’t know what else, if anything, he said.
Claim for civil compensation? As noted above, the Court Statement refers to “the criminal part” of the trial, implying that maybe there was a non-criminal part. This is quite possible: Chinese law (Criminal Procedure Law, Articles 77, 78) allows crime victims (or in this case, their next of kin) to have a civil claim for compensation heard in the same proceedings as the criminal case. Did Heywood’s family make such a claim? We have this oblique hint, plus the fact that they had an attorney there, but that’s all.
The self-confidence of someone who’s pretty sure she’s going to get away with it. I can’t help but be struck by the large crowd of people Gu assembled outside Heywood’s room on the night she poisoned him. According to the Zhao Report, after leaving Heywood dead or dying in his room, four of them – Gu, Zhang, their driver, and another personal servant of the Bo family – then left the scene, after hanging the “do not disturb” sign on the door and telling the hotel staff not to bother the guest inside, who was drunk. They don’t seem to have been too worried about the fact that Heywood would be discovered dead, and they would be the last people to have been seen with him.
Foreign citizenship? There has been speculation for some time that Gu Kailai might have foreign citizenship, and that that might explain the curious official references to her as Bogu Kailai (adding her husband’s surname to her own) – this kind of name-taking is quite rare in the PRC. But the Xinhua Report officially denies that, at least indirectly: it says she has a Beijing domicile (hukou) and is a registered lawyer. Foreigners can neither have a hukou nor be registered lawyers in China.
Many people are asking what this trial shows about the Chinese legal system. I don’t think it shows us very much. To put it another way, we know very little of what went on behind the scenes, and what we do know does nothing to disconfirm things we thought we knew about the Chinese legal system. In short, most of us are drawing conclusions about the trial based on what we think we know about the Chinese legal system. If we want to go in the other direction – to draw conclusions about the Chinese legal system based on what we think we know about the trial – all we can say is that the trial doesn’t give us any reason to reconsider the conventional wisdom.
I predict, for example (as does everyone else) that Gu Kailai will be found guilty. Moreover, I believe that this verdict was settled beforehand at the highest level – the Standing Committee of the Politburo – and that it was impossible that anything could come out at the trial that would upset that conclusion. However, it is important to note that there is nothing in Gu’s trial or the lead-up to it that would constitute evidence for that belief. It’s other things we know about China and the way courts and the political system operate in sensitive, high-profile cases like this that constitute the evidence for my belief. I’m just applying some knowledge that I already have (or at least think I have) to make inferences about a new situation.
He Weifang on the Gu Kailai trial
Law professor He Weifang has posted the Xinhua report of the Gu Kailai trial on his blog and appended some, well, let's just say not entirely credulous comments.
Here's my translation, followed by the Chinese text of his comments. I think his title is a pun, but am not sure. I'll ask him. [AUG. 13 UPDATE: I asked, he answered. It's not a pun in the way I thought.]
An Impossible Situation [also perhaps a pun for “Protect Gu Kailai No Matter What”?]: Her hasty trial left more questions than it answered. Her motive for deciding to murder was to protect her son; is there any solid evidence that her son’s life was in danger? As she was a lawyer with rich international experience, the rational choice would have been for her to report the case to Scotland Yard. It’s absurd that she would kill someone herself. Could it be she was faced with some other threat that could not be spoken of? Who did the policemen who helped cover up the crime answer to? Moreover, Mr. Heywood apparently did not drink, and in addition was said to have already threatened Guagua. Now he was almost forced to Chongqing by Zhang and met with Guagua’s mother; it should have been as though facing with a mortal enemy. What wiles did she use to get him so thoroughly drunk? Witnesses who should have appeared in court – the most important of which were her husband and former police chief Wang Lijun – were utterly absent. None of the other relevant witnesses appeared in court, either. This kind of trial is just a show to cover up the truth. If this kind of case is not tried justly, then lies have to be used to cover up lies, leading to an impossible situation where the story doesn’t hold together and it becomes a satire of justice.
In any case, as far as the bit of the iceberg that was exposed is concerned, we can see who the real mafia in Chongqing are.
August 10, 2012
Unofficial report of proceedings in the Gu Kailai trial
An unofficial report of proceedings in the Gu Kailai trial has surfaced. I can't vouch for its authenticity, but have done a quick and dirty, and not entirely literal, translation anyway. Comments, corrections, and suggestions welcome.
My source for the Chinese text is the Boxun web site (there are other sources as well that have the same text). Here's the URL: http://boxun.com/news/gb/china/2012/08/201208101307.shtml
Here's my translation. As people send me suggestions, I'll indicate deletions by a strikethrough and additions by underlining. If it starts getting really messy, I'll indicate the change in some other way.
Zhao Xiangcha: A Record of my Observation of the Murder Trial of
BoGu Kailai and Zhang Xiaojun
August 9, 2012, at the Hefei Intermediate People’s Court. In Courtroom No. 1, the trial of BoGu Kailai (hereinafter “Gu”) and Zhang Xiaojun for the murder of British citizen Neil Heywood was held. I was present in the audience.
The trial began on time at 8:30 in the morning and ended at about 3 p.m. The trial was complete, the facts clear, and the defendants admitted everything without reservation. The verdict will be announced at a later date.
Here is a summary of the entire process of the case on the basis of the evidence and arguments of both sides that I heard while attending the trial.
Because it wasn’t permitted to bring any recording equipment into the courtroom, even a small pencil I had with me was confiscated. I can only rely on memory and inference to sum up the case, and this account includes subjective inferences I’ve made from the details of various pieces of testimony. If there are mistakes, omissions, or additions, don’t blame me.
(I am behind and to the left of Zhang Xiaojun, in the shirt with black and green stripes.)
1. Background to the case and motive for the murder
The victim was Neil Heywood, a British businessman. His father was a British lord and an alumnus of Harrow School. In about 2003, he met Bo Guagua in England and helped him in various activities in England. He became quite close to Guagua, hoping to use Guagua’s family relations to promote his commercial interests in China.
Around 2005, through the introduction of BoGu Kailai, Heywood met Xu Ming, the Chairman of the Dalian Shide Group (Xu was detained on March 15 of this year for economic problems) and a Mr. Zhang, a 3rd-generation princeling who was a senior officer at a state-owned enterprise. Their joint project involved a real estate project in France and a big construction project in Jiangbei District in Chongqing. Had the project proceeded according to plan, Heywood would have garnered a 140 million-pound share of the profits. But because the Chinese construction project suffered from too much political interference, it never got off the ground.
Heywood thereupon sent an email to Bo Guagua demanding 10% of his expected profit, i.e., 14 million pounds. Bo Guagua conceded that his family should bear partial responsibility, but there was a great deal of disagreement over the specific amount. After a number of communications back and forth that produced no result, Heywood turned to threats, and held Bo Guagua in soft detention (软禁) at his [referent unclear] home in England, using this to pressure Gu Kailai.
Bo Guagua then telephoned his mother to report his having been detained and kidnapped. Gu was afraid of her son being kidnapped and killed [or] suffering bodily harm. First, she reported the case to the Chongqing police, and the then police chief, Wang Lijun, took the case. But because the case took place in England, and there was not any solid proof, it was impossible to take coercive measures. This then gave her the motive for getting rid of Heywood in order to protect her son.
2. The plotting stage of the murder
Gu first plotted with Wang Lijun. She wanted to frame him as a drug dealer. At this time Heywood was in Beijing. They would lure him to Chongqing, then use the excuse of his resisting arrest as a drug dealer to shoot him to death on the spot, thus getting rid of him.
Wang Lijun at first took part in the plot, but later on, perhaps fearing the risk, did not want to continue his participation. Gu then decided to do the job herself. On the pretext that she wanted to do an experiment, she got hold of some “Three Steps, Down” [presumably meaning the poison victim falls down dead after taking only three steps following ingestion] dog poison through some Chongqing mafia people. The seven people who supplied poison to Gu were subsequently arrested on suspicion of drug dealing.
At this point I will introduce the other defendant in this case, Zhang Xiaojun. Zhang is a retired PLA soldier and was born on Oct. 22, 1979. He was once the personal servant of General Gu Jingsheng, Gu Kailai’s father. From the beginning of 2005 (Gu Jingsheng died in 2004), he had worked for the family of Bo Xilai and Gu Kailai. He was principally in charge of communicating with Bo Guagua and ensuring his personal security.
3. The preparatory stage of the murder
On Nov. 10, 2011 (I don’t recall the exact date), Zhang Xiaojun, at the direction of Gu Kailai, went to Beijing and invited Heywood to go to Chongqing. They put Heywood up at a villa at the Shannan Resort Hotel. At this time, Zhang Xiaojun did not know of Gu Kailai’s plan to kill Heywood by poison. On the afternoon of the 13th, Gu Kailai discussed her plan to kill Heywood by poison with Wang Lijun. The specific details of their discussion are not clear. That evening, Heywood and Gu had dinner together. After dinner, Gu Kailai instructed her driver, Wang Hao, to buy a bottle of Royal Fireworks Salute whiskey. She had prepared a small bottle of water with the poison dissolved in it (according to varying testimony, there were from one to four bottles) and gave it to Wang Xiaojun. She told him that it was cyanide. In his heart, Zhang Xiaojun did not want to cooperate in the murder, but participated because of his relations with Gu’s family. At about 11 p.m. that evening, Gu and her driver Wang Hao (who did not know about the plot), as well as another personal servant of the Bo family (whose name I don’t remember), got into a car, with Wang Xiaojun in another car, and all went to Heywood’s villa.
4. The specific process of the murder
Gu Kailai entered Heywood’s room by herself while the other three waited outside. She drank together with him – about 350 ml. of 80-proof (40% alcohol) whiskey. Heywood’s alcohol tolerance was low, and he got drunk and vomited (a great deal of vomit was found on the scene). He was woozy and lost the ability to resist. At this point Zhang Xiaojun came onto the scene of the crime and gave the poison to Gu Kailai. He also dragged Heywood from the bathroom to the bed. When Heywood wanted water after vomiting, Gu Kailai took the opportunity to give him the poison. She also dumped at the scene some drugs she had prepared beforehand in order to create the impression that Heywood was a drug dealer. When the two discovered the Heywood had no blood pressure (they could not be sure he was dead), they left the scene. Gu switched on the “Do Not Disturbed” indicator and told the hotel staff that Heywood was drunk and was not to be disturbed. At 11:38 p.m. that evening, the four left the scene.
5. Various problems in the case and the initial investigation
On Nov. 14th, one day after the murder, Gu Kailai told Wang Lijun everything about her crime. Wang recorded it. When Wang Lijun was no longer able to protect [Gu Kailai], he finally turned over this evidence to the relevant departments. (He is really insidious.)
Two days after the murder, on Nov. 15th, the hotel staff, on finding that Heywood had not left his room for two days, [felt that] something strange was up, and discovered that he was dead. They called the police. Under the direction of Wang Lijun, the Chongqing police undertook an inspection of the crime scene and gathered evidence. They took a blood sample from the victim and did a CT scan of the corpse. Wang Lijun and several other senior police officers, in order to conceal Gu’s crime, personally carried the blood sample and other important evidence with them for a day, in violation of law and in a departure from judicial procedure. (This laid the groundwork for later doubts about the case, as recounted below.) Because of his involvement in the case, in order to escape criminal responsibility (or for some other reason), Wang Lijun later went to the American consulate.
The defense lawyer raised several important doubtful points about the case. Although there was no evidence, everyone can use their imagination fully and may reach an unexpected conclusion.
- The source of the poison is not clear, and there is no proof that the poison was cyanide.
- The most important doubtful point is related to the first: During the first autopsy, the typical symptoms of cyanide poisoning (dilated pupils, bulging eyeballs, bloody mucous membranes) were not found. There were only secondary symptoms such as swelling in the lungs and brain. During the initial blood test, no cyanide was found. Four months after his death, a second test revealed cyanide in an amount that was the lower limit of a poisonous amount. During this time, the blood sample was beyond of the normal judicial process and was being unlawfully carried by Wang Lijun and several other senior police officials. As for the reason, everyone can fully imagine.
- Heywood’s family had a history of cardiovascular disease. Excessive drinking could have caused his death from cardiovascular disease. And the autopsy showed none of the typical symptoms of poisoning. (The body having already been cremated, it was impossible to test for cardiovascular disease.) There was another important detail: The two defendants testified that when they left the room, Heywood had his head resting on the headboard. When his corpse was discovered, he was lying flat on the bed, and the bed showed signs of having been rolled on. This shows that Heywood might not have been dead [when they left the room]. If this is so, it shows that the poison was insufficient to kill Heywood, and that Gu’s act therefore might be deemed attempted murder. But there was no evidence, and so the court did not accept these points.
- There were indications that someone entered the balcony of Heywood’s room between the night of the 13th and the time when the body was discovered on the 15th, but there was insufficient evidence that anyone had entered.
- Gu was mentally ill and was not completely competent to act.
- According to relevant assessments, Gu Kailai suffered from manic depression and moderate schizophrenia. It was determined that she had the ability to make judgments, her self-control was relatively weak, and she was completely capable of bearing criminal responsibility. The attorney argued that she was not completely competent to act, but had no evidence.
Attitude of the accused
BoGu Kailai was relatively calm all the way through, but was unable to hide her intense anxiety. I could clearly see her hands trembling. She said nothing in her own defense, leaving it all to her attorney(s). Her voice was soft and she spoke standard Mandarin.
She fully admitted her acts in the case without reservation; she offered no objections. She made only three clear points when she spoke: (1) She felt that the prosecution’s account of her motive was not full enough. (2) She sought to reduce Zhang Xiaojun’s culpability, and asked that he be given a lighter sentence. (3) She felt that it was improper for Wang Lijun to appear as a witness in this case and that his testimony was concocted. In her confession and recorded [statement], she repeatedly emphasized Wang Lijun’s insidiousness. As for the reason, everyone should judge for themselves.
Zhang Xiaojun had no objection to the prosecution’s evidence or charges.
In the final statements of the accused, they both admitted guilt and showed relatively sincere repentance.
My personal impressions
Everyone has long known my character; you can take my impressions for what they’re worth.
I feel that the entire courtroom adjudication process was fairly objective and just. There was a slight feeling that things had been rehearsed beforehand. But that didn’t affect the ultimate defining of the case. The facts really were clear and the evidence really was copious. The prosecutor didn’t bully people and the defence lawyers did everything they could. The testimony of the called witnesses (传唤证人的证词) was very just and unbiased. To convict these two is absolutely just.
In the final statements of the accused, they both admitted guilt and showed relatively sincere repentance. I felt this genuinely came from the heart; there was no trace of acting or of their having been under compulsion.
Some minor details I remember from the hearing
In the letters between Gu Kailai and Bo Guagua, she called him “little rabbit” and called herself “big rabbit”.
I was fortunate enough to sit near Shen Zhigeng. Mr. Shen Zhigeng handled the defence in the Xiamen Yuanhua case several years ago, and this time the Bo family originally wanted him to be the defense attorney. But the lawyers had already been appointed by the judicial organs, and Mr. Shen could only attend as an observer. Shortly after the trial began, the lawyer had just begun to speak, and Shen sighed, “This case has been ruined by the lawyer.”
(Mr. Shen is the one in the middle in a purple shirt.)
The whole courtroom was quite quiet. During the long stage of introducing evidence, some of the audience slept and was audibly snoring.
I’m told that outside the courtroom, there were a few of the masses who came from the Northeast to support the Bo family and shouted slogans such as “Long live Chairman Mao!”. Later they were arrested by the police officers assigned to maintain security.
 DC: A legal term of art basically meaning “capable of acting such that the law requires the actor to bear the consequences”.
 DC: I’m not sure why he says “the called witnesses”; as far as is known, the only witness that actually showed up was someone from the police lab. The other witness testimony came in through written statements.
Reference materials on the Gu Kailai trial
2012-08-09 16:33:13 来源: 新华网 1
August 04, 2012
British diplomats to be allowed to attend Gu Kailai's trial
Pretty unusual - will they really be allowed to attend the whole thing, from start to finish? This is of limited significance, of course, because the trial process isn't going to change whatever outcome has been decided on. This case is way too important for that. But the outcome certainly has to be justifiable in terms of what goes on during the formal trial process, so it's certainly significant.
Here's the Reuters story.
August 03, 2012
Yet another law-related fake: a fake prison
It just doesn't stop: now a fake prison has been discovered (a cover for an illegal cigarette manufacturing operation). Story here. HT: Mark Cohen.