Fordham Law


Rule of law in China the silent victim at Bo Xilai wife's trial

Carl Minzner in Reuters, August 01, 2012

Media Source

Gu Kailai, the wife of deposed Chinese leader Bo Xilai and a career lawyer, faces possible execution for murder at the hands of a swift, unblinking justice system that she once championed.

Gu, who practiced commercial law and wrote once a book about her experiences of both the Chinese and U.S. legal systems, will be at the centre of highly politicized trial this month in which rule of law is unlikely to attract more than token attention.

Legal experts and activists expect her to receive the kind of rapid guilty verdict handed down in almost all Chinese criminal trials - the kind Gu once compared favorably to U.S. legal practice where she felt the guilty risked going free on legal technicalities.

"As long as it is known that you, John Doe, killed someone, you will be arrested, tried and shot to death," Gu wrote of Chinese criminal justice in her 1998 book.

Chinese law, she explained, did "not mince words".

Now Gu finds herself on the other side of Chinese law in a case that experts say is unlikely even to become a rallying point for China's marginalized supporters of judicial reform.

"It simply cuts too close to core issues of internal (Communist) Party politics and the handover of power," said Carl Minzner, a Chinese law expert at New York's Fordham University School of Law, casting Gu's trial as part of a political campaign against her husband, once seen as a candidate to join China's next top leadership team to be unveiled late this year.

"These are the very last areas we should expect any willingness (from Beijing) to play by legal norms."

China has long had an official agenda of enforcing rule of law and its case against Gu has drawn global interest, not only because of the political overtones but because the victim, former Bo family friend Neil Heywood, is British and Frenchman Patrick Devillers is a potential witness.

British Foreign Secretary William Hague has demanded Beijing live up to its judicial rhetoric in the Gu case, calling in April for "a full investigation that observes due process, is free from political interference, exposes the truth behind this tragic case, and ensures that justice is done".

'AN OBVIOUS FARCE'

But experts say London is bound to be disappointed. They point out that the signs so far are that the trial against Gu and her alleged accomplice, family aide Zhang Xiaojun, will be a formality with only the severity of the sentence in any doubt - execution or a long jail term.

Gu will not have access to her family lawyer, Shen Zhigeng, who has revealed that other legal counsel have been assigned to her case. China's official Xinhua news agency has already said the evidence against Gu will be "irrefutable and substantial" when the case goes to court, likely next week.

"It makes the case a transparent sham," said Jerome Cohen, an expert on Chinese law at New York University. "If you forbid people to have the best lawyer they can and you assign lawyers who you control...it renders the whole thing an obvious farce."

Both Bo, the ousted Chongqing party chief, and Gu have been in detention since Beijing first announced the murder allegation against Gu and the unspecified "disciplinary violations" against Bo in April. At the time, Bo was stripped of all party positions. Neither he nor his wife has been able to publicly comment on the allegations.

Despite the track record of China's criminal justice system - its courts answer first to the party, almost never side with defendants and have never ruled in favor of dissidents - it has sometimes raised hopes for genuine reform.

Beijing appeared to offer some encouragement to reformers in the 1990s with a promise to "rule the country according to law". Late in the decade, it added the principle to the constitution, though it still recognized the party as supreme arbiter.

In 2003, it abolished "custody and repatriation" powers, a form of arbitrary detention once used by local governments to sweep homeless and other undesirables from the streets.

Emboldened, some legal activists began to test the government's rhetoric on rule of law, launching cases against the authorities on behalf of ordinary aggrieved citizens - but they quickly found that nothing much had actually changed.

RULE OF LAW RETHINK

Blind activist Chen Guangcheng, who made international headlines in April with his escape from house arrest and his flight to the United States, recalls his own 2006 trial for whipping up a crowd that disrupted traffic and damaging property - charges he says were trumped up to stop him advocating for the disabled, farmers and women forced to undergo abortions under China's one-child policy.

Chen too was deprived of his lawyer and was forcibly represented by two state-appointed counsel.

"In the courtroom, to all the unfounded accusations by the prosecution, the two lawyers would only respond, 'We have no objection'," Chen said by phone from New York where he is furthering his legal studies.

Minzner, of Fordham University, said any genuine party interest in the rule of law evaporated from around 2003 as the government realized that it posed a threat to one-party rule.

"A combination of political and practical concerns came together to lead central authorities to rethink it -- how far do we really want to go down this track?" he said.

For Chen Guangcheng, genuine rule of law would indeed challenge the party's grip on power, though he also believes long-term political stability cannot be assured without it.

"If there was truly the rule of law in the first place, power should be returned to the people. There would be no way for them to hold on to power," Chen said.

Farmers, evicted homeowners and affluent business people have used the courts to seek redress, but victories have been rare and often hollow. In July, a court threw out a fraud charge against disabled lawyer Ni Yulan who had helped defend people from forced evictions carried out in the name of development.

But Ni won only a two-month reduction in her near-three-year jail sentence for causing a disturbance.

In March, parliament gave new safeguards to criminal suspects and defendants but also solidified police powers to hold certain suspects in secret for up to six months. And harassment and detention of lawyers, whose legal advocacy is seen as a threat by the party, has been intensifying ahead of China's once-in-a-decade leadership handover later this year.

"On appearances, there has been progress, but there has been no real increase in judicial independence and legal representation," said Li Fangping, a lawyer who has defended dissidents and protesters. "Recently it has been crippled."

As ever in China, there is a pithy phrase to sum up Chinese justice. "You will have heard the saying 'the police cooks the food, the prosecutor serves it and the court eats it'," said Eva Pils, a law expert at the Chinese University of Hong Kong.