Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Thursday, July 26, 2012

Jurisdiction in the Gu Kailai murder case

China’s official news agency announced yesterday that Gu Kailai (it calls her Bogu Kailai, but that’s another story), the wife of ousted Chongqing Party secretary Bo Xilai, had been formally charged with murder by the Hefei Municipal Procuratorate in Anhui Province and would face trial in the Hefei Intermediate People’s Court. Wait a minute. Hefei?

To the best of anyone’s knowledge, neither the accused nor the victim, nor indeed anything about the case, is remotely connected with Hefei. And indeed, that is very likely the reason the government has decided to try the case there. There is a long tradition of trying cases involving high-level officials outside their power base – one source (HT: Eve Sun) estimates this happens 90% of the time – because of fears they can use their local influence to influence the result. Indeed, that courts are vulnerable to this kind of pressure is readily admitted even in the most orthodox sources (see, for example, this article on the “News of the Communist Party of China” web site on why corrupt officials need to be tried outside their home base). Only Foreign Ministry spokespeople speaking to the foreign press take the trouble to deny it these days.

No doubt, then, this practice makes sense. But is it legal?

The article above quotes Wang Jixue, a current-affairs commentator, as saying that the practice has a legal basis in Article 26 of the Criminal Procedure Law, and that the provision there reflects the legislators’ profound grasp of Chinese realities. But let’s see what the Criminal Procedure Law actually says.

The basic rule of jurisdiction is set forth in Article 24: “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.” OK, so we are talking about either Chongqing or wherever Gu Kailai resides – maybe Chongqing, maybe not, but in any case certainly not Hefei.

What level of court should hear the case? That question is answered by Article 20: cases involving a potential life or death sentence shall be heard in the first instance by an intermediate-level court (even higher if the case is of province-wide or nation-wide significance). OK, no problem there.

Note that Article 24 presents some choices about location, and somebody has to decide how widely significant the case is in order to decide the appropriate level of the first-instance trial. What happens if people don’t agree? No problem: Article 25 says, “When two or more 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.” And if there is still disagreement, the final decision is assigned by Article 26 to the highest court that chooses to get involved in the matter: “A people's court at a higher level may instruct 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.”

Does Article 26 explain why Gu Kailai is being charged and tried in Hefei, then? No.

First of all, there is no relevant issue of unclear jurisdiction here. There is nothing to suggest that any court other than an intermediate court in Chongqing should have jurisdiction. But what about the second half of the sentence, which seems to give a superior court (in this case, it would have to be the Supreme People’s Court) unfettered discretion to transfer any case from any inferior court to any other inferior court? This can’t be the explanation, because this case hasn’t been transferred to the Hefei court. That’s where it started.

Anyone who knows anything about China will, of course, already suspect that this trial cannot possibly take place in the absence of substantial political influences. But I think it’s important to point out this particular example of that process at work. The decisions to have the Hefei procuratorate bring the prosecution and to have the trial in Hefei cannot be accounted for under the current rules of the Chinese legal system. Grammatically speaking, no legal institution could have been the subject of the verb “decide”. There was an extra-legal political decision made that this is how the matter would be handled, and that decision was then transmitted to all relevant actors in the legal system.

One caveat: the decisions could as a formal matter have come from the Supreme People’s Procuratorate and the Supreme People’s Court. In that case, though, the point still stands that the decisions don’t seem to have been made in accordance with the rules of the Criminal Procedure Law. I’m not claiming here, by the way, that there is anything inherently unjust about trying officials away from their home base. What’s interesting is that while it would be easy to amend the CPL to provide a way for these decisions to be made, nobody seems to think it necessary.

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Chinese lawyers do not engage themselves in your split-hair style of statutory analysis. They look at legislation at broad strokes> Another issue is that Ms. Gu's family had been saying to the public that she was suffering from severe depression and did not commit the crime. Is her defense team going to raise that defense? What is the jurisprudence of mental illness in Chinese criminal law. Wake up,I have been studying and teaching Chinese law since 1980, to quote Zhang Zni-min's famous statement: you are sometimes naive.

Posted by: Frankie Fook-lun Leung | Aug 3, 2012 12:26:04 PM

my guess: the supreme people's court can appoint any court and hence it has to be the prosecutors of the same jurisdiction. so it's implied by the explicit rule that the court can be chosen, not the prosecutors.

Posted by: T.D. | Aug 8, 2012 8:32:22 PM

The trial cannot take place in Beijing or Shanghai where the international media will have a field day. It cannot be conducted in Chongqing because Bo Xilai's shadow is still hanging over that city. Where can it go? Hefei seems ideal because it was reported that the judges are in full compliance of the party's wishes and the requisite lawyers are low-profile.

Posted by: Frankie Fook-lun Leung | Aug 9, 2012 2:47:07 PM

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