Translation: SPC Directive on Handling Suits Related to Internet "Management"

Several days ago, I came across this interesting document via a weibo post by Beijing lawyer Zhou Ze. Dating from 2009, it is an internal directive from the Supreme People's Court instructing lower courts on how to handle lawsuits arising from Internet "management" (which, if it wasn't already clear, is a euphemism for censorship).

I think this directive is interesting for a number of reasons. First, it exemplifies the way in which Chinese courts are in many respects more administrative bodies than they are judicial bodies. Rather than having individual courts exercise discretion over whether or not a suit merits adjudication, the central court sets (non-public) rules essentially prohibiting all suits related to censorship that lower courts are expected to follow.

The directive also shows how, particularly under the leadership of the previous SPC president, Wang Shengjun, a political calculus can often decide what cases are heard and how cases are decided. The concern for achieving "unity in legal, social, and political results" and "negative social impact" is illustrative in this regard.

A third thing I find interesting about this document is the way it reveals just how many layers of oversight, guidance, and coordination Chinese courts are subject to. In sensitive cases like these, courts are expected to report upwards to a higher-level court as soon as the case is filed and maintain close contact with both the local party committee and its political-legal committee. Coordination with "relevant authorities" is also needed to "work with" (a better translation might be "work on") the suit-filer, presumably to convince him or her to drop the suit or work out some other kind of resolution.

As Zhou Ze put in his weibo post, making reference to recent comments by new SPC president Zhou Qiang about the need to increase public confidence in the judicial system: “If such places are allowed to continue to exist outside of the law and members of the public have no place to turn to protect their rights, boosting confidence in the legal system is idiotic nonsense.”

Notice Regarding Case-Filing Review Work in
Cases Involving Internet Management

In the interest of properly carrying out case-filing review work in cases involving Internet management from this day on, we are issuing the following notice regarding related questions:

I. Scope of Cases Involving Internet Management 

Cases involving Internet management include civil and administrative disputes that arise from Internet management. Civil disputes primarily take the form of disputes arising from the deletion of the deletion, pursuant to a request by a relevant management authority, of the suit-filer’s document, comment, or web page or closure, pursuant to a request by a relevant management authority, of the suit-filer’s blog, forum, chat forum, or website. The majority of those filing suit do so on the grounds that he or she established a contract for Internet service with a website and the web site unilaterally deleted documents or closed a website without his or her agreement or giving notice. Administrative disputes primarily take the form of a suit filed because the suit-filer does not agree with the administrative penalty decision or punitive action made by a relevant management authority to delete an article or comment posted on the Internet by the suit-filer or to close the suit-filer’s blog or website.

II. Basic Requirements for Case-Filing Review of Cases Involving Internet Management 

(1) Uphold the principle of filing cases appropriately and in accordance with the law, in order to achieve unity in legal, social, and political results. Do not accept suits involving Internet management and do not issue court documents. With respect to other civil disputes concerning the Internet, when review finds that the suit meets statutory conditions for accepting the case, the case may be accepted with discretion after first making an effort to thoroughly understand the background of the case, assess the social impact, and understand the issues involved and getting permission from the court above.

(2) When courts at all levels, including detached tribunals at the grassroots level, receive suits involving internet management, they must immediately report upward to the SPC and also report the situation to the local party committee and political-legal committee. Each higher-level [i.e., provincial] court must properly carry out case-filing guidance and lawsuit-information transmission for these types of cases in its jurisdiction.

(3) When handling problems regarding suits related to Internet management, courts must proactively seek the support of the local party committee and political-legal committee and coordinate with the relevant authorities to “work with” the parties to the case in order to avoid creating a negative impact. Unauthorized public comment is prohibited.

Supreme People’s Court of the PRC 

July 13, 2009

关于涉及互联网管理案件立案审查工作的通知

为做好今后涉及互联网管理案件的立案审查工作，现就有关问题通知如下：

一、涉及互联网管理案件范围

涉及互联网管理案件包括因网络管理引发的民事纠纷和行政纠纷。民事纠纷主要表现为因网站根据有关管理部门要求，删除起诉人发表在网络上的文章、言论以及网页等，或者关闭起诉人的博客、论坛、贴吧、网站等引发的纠纷。起诉人大多以其与网站建立网络服务合同，网站未经其同意或未通知本人单方删除文章、关闭网站为由提起诉讼。行政纠纷主要表现为起诉人不服相关管理部门删除起诉人发表在网络上的文章、言论或者关闭起诉人的博客、网站等行政处罚决定或者处罚行为而提起的诉讼。

二、对于涉及互联网管理案件立案审查基本要求

（一）坚持依法稳妥的立案工作原则，实现立案工作法律效果、社会效果和政治效果的统一。对于涉及互联网管理的案件不予受理、不出具法律文书；对于其他涉网络民事纠纷，经审查符合法定受理条件的，要充分了解案件背景、预测社会影响和涉及的问题，报经上级法院同意后予以慎重受理。

（二）各级法院，包括基层法院的派出法庭接到涉及互联网管理的起诉，要立即层报报告我院，同时向当地党委、政法委汇报情况。各高级法院要做好本辖区此类案件的立案指导工作和起诉信息接送工作。

（三）在处理涉及互联网管理的起诉问题时，要积极争取当地党委、政法委支持，协调相关部门共同做好当事人的工作，避免产生负面影响，并不得擅自对外表态。

中华人民共和国最高人民法院

二〇〇九年七月十三日 

On Xi Jinping's "Shoe Theory"

Photograph: Ivan Sekretarev/AP

During Xi Jinping's first overseas trip since being named president of the PRC, there has been a lot of attention paid to the fashion and glamor of his famous wife, Peng Liyuan. (See here, here, and here.)

Not to be outdone by the first lady, though, Xi has dispensed some fashion advice of his own. In a speech at the Moscow State Institute of International Relations, Xi told the audience: "It is our position that each country and its people ought to enjoy respect. . . . Only the person wearing the shoe knows whether or not it fits. Only the people of a given country have the right to express their view on whether their country's path to development is appropriate."

In the days since his speech, Xi's "shoe theory" has attracted much Chinese comment. My favorite comes from Hu Ping, who has been an ardent advocate of free expression and democracy in China since the Democracy Wall movement in the late 1970s:

"We want to tell Xi Jinping: You're the shoe, Mr Xi, and we're the foot. It doesn't matter if you say the shoe doesn't pinch; we're the ones who ought to say whether it pinches. In this world, there is only the changing of shoes; whoever heard of cutting off part of your foot to fit the shoe?!"

我们要对习近平说：习先生，你是鞋，我们才是脚。你说鞋不夹脚不算数，鞋夹不夹脚该我们说。世上只有脚换鞋，哪容削足适履。
— Hu Ping胡平 (@HuPing1) March 28, 2013

Post-Spectacle Commentary: "Be a Healthy Person"

Yesterday afternoon, "Mekong pirate leader" Naw Kham and three other foreign nationals were executed by lethal injection in Kunming. In unprecedented fashion, China's state television broadcaster carried special two-hour live reports in Chinese and English, including scenes of the condemned being transferred from detention and delivered to mobile execution facilities. (See the New York Times report; for excellent background on the case, see this Reuters report.)

I had the Chinese broadcast on in the other room, but I missed most of the relevant scenes. But between watching on TV and reading others' descriptions of what was being broadcast, I couldn't help wonder why such a broadcast was authorized in the first place.

Public executions and the parading of prisoners in the streets has a long tradition in China, as it did in many other countries. In the 1980s, China found itself torn between two conflicting interests: displacing mass politics and class struggle with rule-based norms and legality on the one hand and, on the other, imposing social order through a bloody, nationwide "Strike Hard" campaign.

It was during this period, in 1984, that Chinese authorities issued a directive prohibiting the filming of execution grounds and the parading or public display of the condemned. That directive, which was issued by the CCP Propaganda Department together with China's main judicial and law-enforcement bodies, cited a recent Newsweek article, which included photos of an execution in Guangxi together with a report from Amnesty International criticizing China's campaign against political prisoners and prisoners of conscience. Preventing hostile overseas media from using execution images to "spread rumors" and "slander" China was the primary motivation for curbing the practice of parading the condemned and holding public executions.

This prohibition was subsequently written into China's Criminal Procedure Law, and the relevant Supreme People's Court interpretation on implementation of the death penalty also prohibits "other acts that degrade the personality of criminals" (其他有辱罪犯人格的行为).

It's hard to see how China's live broadcast leading up to the executions doesn't violate the spirit, if not the letter, of those prohibitions. I saw many Chinese people making the same observations yesterday and wondered whether any of those voices would make it into print.

I found one in this morning's Changjiang Daily, the official "organ" of the party in Wuhan (which, incidently, held its own executions yesterday). In it, commentator Liu Min reminds us that by degrading the dignity of other human beings, we degrade ourselves as well.

Be a Healthy Person

Liu Min

Changjiang Daily, 2 March 2013

A Chinese court decided on the death penalty for Naw Kham and the others. Yesterday, CCTV broadcast live Naw Kham being transported to the execution ground. This initiated a great debate online.

Initially, many netizens believed that CCTV would broadcast live from the scene as Naw Kham was being executed. Later, CCTV commentator Yang Yu posted to Weibo, clarifying: “CCTV reported on some of the procedures as Naw Kham and the others were taken out of the detention center but never broadcast live the execution process.” Chinese laws state that executions should not be public.

I watched the video, and indeed that was the case. However, I found watching the more than four minutes as they were being transferred [from the detention center] very uncomfortable and hard to bear. CCTV’s live broadcast showed in full detail how the special police tied up Naw Kham with thick rope. Naw Kham’s grimacing, pained expression as he was tied up and led out was also perfectly clear on the screen.

I know, of course, about the violence committed by Naw Kham and the others that resulted in 13 Chinese crewmen losing their lives. No amount of condemnation for this violence would be too great. I also know that those who commit violence must be punished by the law in order to restore justice, bring comfort to the living, and allow the dead to rest in peace.

I think, however, that any person with normal feelings would find it hard to bear and feel uncomfortable watching another person suffer, no matter whether that other person is good or bad. That is why, in many American dramas, when those, including the victim’s family members, gather in that small room to watch as the criminal is given lethal injection they often turn their heads or lower their eyes. That is because this is the normal psychological and physical reaction of a normal person, one that proves that we are humans, rather than animals.

Perhaps it is not illegal in China to broadcast live as the condemned are transferred to the execution ground, but I still oppose broadcasting live. Before, China used to have so-called public sentencing rallies and parade bound criminals in the streets for public viewing. Now, live broadcast of the transfer is no different in any real sense and is even more repulsive. Why?

It is because the live broadcast voluntarily and consciously revived these kinds of backward, barbaric scenes lacking in any modern notion of rights or rule of law. The live broadcast even delivered these scenes right in front of your eyes, so that you didn’t even need to go out of doors or be in the streets: you could see the barbarity and backwardness from your own home. You could say, in other words, that this live broadcast was itself barbaric and backwards, displaying no progress at all.

I saw many people online who praised the live broadcast and even some who “criticized” CCTV for not airing scenes of the executions. Not only that, but whenever anyone expressed opposition or doubt about the live broadcast, they were immediately attacked by those in favor, who asked: “Why don’t you think about the 13 dead Chinese crewmen?”

Yes, I also heard a CCTV commentator utter the word “retribution.” I don’t understand the relationship between legal sanctions and retribution—they seem worlds apart to me, two completely different concepts. Legal sanctions are an expression of the spirit of rule of law; they have nothing to do with retribution and do not demand that criminals suffer retribution. Retribution—lightning strikes from heaven or a blade delivered to avenge the enemy—is not the sanction of law, but rather mass revenge or a mental curse. When this kind of language appeared on the state television of a nation that continually proclaims the modern spirit of rule or law, it is more than just disappointing.

The live broadcast and the debate it inspired allow us to see the state of modern values in China. Actually, it’s unnecessary to repeat the words “rule of law” and “human rights” over and over in talking about this matter. One only needs to start from a direct standpoint, one unmediated by any jargon, and think about how to be a healthy person, one with basic rationality and normal feelings.

Translation: Li Yan and Reconsidering the Death Penalty

The most recent death penalty case to capture the attention of the Chinese public is the case of Li Yan, a 41-year-old woman sentenced to death for killing her abusive husband. (For more on this case, see this article by Tania Branigan at The Guardian.)

Li's sentence has been approved by the Supreme People's Court, but last week, a group of lawyers, legal academics, and others called on the court to stay the execution. Time is running out, since an execution is required to be carried out within seven days of being approved by the SPC unless grounds for halting the execution are uncovered in the meantime. (See Amnesty International's urgent appeal on the case here.)

In this morning's edition of the Shanghai newspaper Oriental Morning Post (东方早报), lawyer Zhang Peihong argues that there are sufficient reasons to stay Li's execution and reconsider the punishment she's been given. He urges Chinese judges to take a new attitude towards imposing the death penalty, one that would consider every possible argument against imposing the death penalty rather than treating capital punishment as a tool for eliminating harm from society.

Reconsidering the Death Penalty on the Basis of Li Yan's Case

Zhang Peihong

Oriental Morning Post

29 January 2013

Until complete abolition of the death penalty, strict control over its use is the crucial issue—this means, in fact, finding every excuse and reason not to impose the death penalty.

The legal process has now come to an end in the case of Li Yan, the woman from Zizhong County, Sichuan, convicted of killing her husband. In recent days, the Supreme People’s Court approved the death sentence for Li Yan. According to the relevant procedures, Li Yan’s execution will be carried out within seven days, bringing an end to her tragic life.

The death sentence against Li Yan has prompted a huge debate among the public. On January 25, more than 100 scholars, lawyers, and members of society convened a seminar calling on the Supreme People’s Court to spare Li’s life.

There seem to be sufficient grounds for a stay of execution: After marrying her husband Tan Yong in 2010, Li Yan suffered serious domestic violence. At the time of the incident on November 3 of that year, a drunk Tan Yong had even tried shooting her in the rear end with an air gun. So, in a fit of rage, Li Yan used the gun barrel to beat her husband to death.

In this respect, the clear fault of the victim should have a corresponding effect on the sentence given to the defendant. Therefore, it is completely possible to sentence Li Yan with a suspended death sentence or life imprisonment. Moreover, after the incident Li Yan had someone telephone the police and waited at home for police to take her into custody. This meets the legal standard for voluntary surrender, which, in accordance with the law, may bring lenient or mitigated punishment.

However, the courts of first- and second instance sentenced her to death and the Supreme People’s Court approved the death sentence, maintaining that Li Yan’s crime had serious consequences and was committed in a brutal fashion. She not only killed her husband but also cut up the body and cooked it. Also, the court rejected the claims of domestic violence on the grounds of insufficient evidence and rejected that Li had voluntarily surrendered. In this way, a sentence of death with immediate execution becomes a choice based on a well-reasoned argument.

Any close look at this case must include reflecting upon and examining the death penalty as a punishment. Past death penalty cases have given us many controversial cases, ranging from the earlier cases of Du Peiwu in Yunnan, Liu Yong in Shenyang, She Xianglin in Hubei, Zhao Zuohai in Henan, and Nie Shubin in Hebei, to the more recent cases of Li Changkui in Yunnan, Yao Jiaxin in Shaanxi, Xia Junfeng in Shenyang, Wu Ying in Zhejiang, Wu Changlong in Fuqing, Nian Bin in Fuzhou, and then to the most recent exposure of the injustice done in a case in Xiaoshan, Zhejiang. These cases are not only controversial because of their substantive outcomes; they are also flawed procedurally. Some involve serious use of torture to extract confessions, others involved the interference of public opinion in the judicial process, others involved blatant miscarriages of justice, and others were simply controversies over whether the death penalty was the appropriate punishment.

Of these, the Liu Yong and Li Changkui cases are worth reflecting upon. Both of these cases went through the first- and second-instance trial process without imposition of death with immediate execution. But because of surging public opinion, the Supreme People’s Court directly retried Liu’s case and executed him that same day and the Yunnan Higher People’s Court initiated retrial proceedings that led to Li being re-sentenced to death with immediate execution.

These are two extremely terrible precedents, ones that not only undermine the courts’ formal independence but also, to a certain degree, damage the credibility of the judicial process. Worst of all, these two cases are examples of “light sentences made heavier.”

But in Li Yan’s case, the public outcry is different. First, before carrying out the execution the condemned has a final opportunity to make a petition. If Li Yan puts forth new evidence that can prove that the victim did actually commit serious domestic violence (ultimately, such evidence shouldn’t be hard to find), she may request a stay of execution. Second, the goal of the calls by the public and academic community is to make a “heavy sentence lighter.” This accords with the basic spirit of civilized administration of justice. (To put it more popularly, it is the “willingness to let a thousand go rather than kill one in error.”)

Of course, resolving the issue of the death penalty cannot rely only on individual cases. As long as the death penalty exists, there will be controversy. This is a result of the persistent problems of the death penalty itself.

First, there is no way to repair an [improper] death sentence. We all have only one life, and once someone is executed, there’s no way to fix that even if it is later discovered to be a huge miscarriage of justice. Because of the limits of people’s capacity for understanding, miscarriages of justice are not something that people can control. They are inevitable and cannot be completely prevented by any review procedure.

Second, there is no way to measure the death penalty. A death sentence is a death sentence. There’s no way to distinguish on the basis of circumstances or degree. If you take “an eye for an eye” to be a principle of the death penalty, then a killing necessitates a life be taken in return. But what if two are killed or even more? Wouldn’t this necessitate taking more lives? What about distinguishing between intentional and accidental homicides? What about distinguishing between robbery, kidnapping, drug trafficking, and weapons smuggling? Should we consider voluntary surrender and meritorious service or the faults of the victim? In fact, general consideration of these things is made in judicial practice, but this is precisely the issue in Li Yan’s case: Why is it still necessary to sentence her to death with immediate execution?
　　
Moreover, the death penalty lacks a theoretical or ethical basis. Our current legal system, whether in terms of the texts or the institutions, comes from the west. The formation of the western legal system originates in deep religious traditions: life is a special, inalienable gift and if people cannot kill others then clearly the government cannot kill others. Therefore, abolition of the death penalty has become a legal principle in developed countries.

China lacks similar religious traditions, meaning that our road to abolishing the death penalty remains long and hard. When considering whether to apply the death penalty, judges must consider not only the details of the case itself but also give more weight to the emotions of the victims. In Western countries, there are even special organizations made up of victims’ family members that urge judges not to impose the death penalty on those murderers who harmed their relatives. The Pfrang case in Nanjing and the later case of the Canadian model in Shanghai are both examples of this. (Editor note: in April 2000, a German entrepreneur named Juergen Pfrang and his three family members were murdered in their Nanjing home by youths from Shuyang County, Jiangsu. Their friends established a foundation to aid children in the murderer‘s hometown.)

As long as the death penalty exists, there will be debate. Until complete abolition of the death penalty, strict control over its use is the crucial issue—this means, in fact, finding every excuse and reason not to impose the death penalty. This requires the judges who impose and review death sentences to maintain a “life-saving mentality” in ruling on cases, rather than adjudicating on the basis of a “harm-eliminating mentality.”

Why Criminal Justice in China Still Matters: A Response

Stan Abrams at the China Hearsay blog recently posted a provocative piece entitled “Note to Media: High-profile Criminal Cases Are Not Representative of China’s Judicial System.” If you haven't read it, I  encourage you to do so now in order to make sense of the discussion that follows, because I’m not going to reprise his argument in detail or provide a lot of quotes.

But, in a nutshell, Abrams takes issue with the way that foreign journalists covering China write about China’s legal system—and its courts in particular. Abrams faults these journalists for being overly influenced by “high-profile criminal cases,” ignoring the real story about what the Chinese judicial system actually does on a daily basis, and, because of their single-minded interest in cases involving “hot-button political issues” or “media-savvy dissidents with Western contacts,” providing a skewed view of reality. 

It’s not my intention to offend when I point out that this is not a particularly original argument that Abrams is making, either in the specific version concerning China’s legal system or in the more general version that takes issue with Western reporters’ tendency to seek out negative stories about China. I’d even acknowledge that it’s probably the case that reporting on China’s judicial system is overwhelmingly focused on criminal matters in general and a relatively small number of such cases in particular. I suspect that reporters and their editors could provide (and most likely have already attempted to do so, once or twice) explanations for why this is so, but that is not my main concern.

At its root, Abrams’s plea is for balance. He feels that overemphasis on a few notorious criminal cases does not do justice to a Chinese court system that is able, despite serious capacity issues, to handle successfully the majority of cases put before it. Although he does not say so as directly, I suspect that part of his grievance is also based on a sense that it is important to acknowledge the effort that has gone into bringing Chinese courts to this point over the past three decades, as well as optimism that continued efforts at legal reform and capacity-building will lead to further improvements going forward.

I don’t know Mr Abrams outside of the virtual sphere and I’m not a regular reader of his blog. Based on what I know of him, however, I am willing to bet that he is far more familiar with how civil (and possibly administrative) actions are handled in China than he is with the Chinese criminal justice system. For what it’s worth, I openly acknowledge that my familiarity with China’s legal system is probably the mirror image of his. For that reason, and for the sake of argument, I will grant his basic premise that, at a certain level of abstraction, China’s system of civil litigation functions at a generally high level. And it is beyond question that civil and commercial matters dominate China’s docket, meaning that, as Abrams suggests, most of what Chinese courts do may indeed tend to look like what courts do in other jurisdictions.

However, I think it’s important not to jump to the wrong conclusions about why China’s courts operate as they do. If Chinese courts are highly functional in the civil sphere, it is not because of commitment to “rule of law” as some general, universal principle but, rather, because having an efficient, rational, and predictable legal system supports the economic development project and, therefore, is in the overall interest of the Chinese Communist Party. On the other hand, preserving social stability is another overriding interest of the party (indeed, one that is intertwined with the interest in economic development), and the operation of criminal justice in China has largely reflected that.

It is not, in other words, because Chinese civil-court judges are more advanced in their thinking and committed to rule of law compared to criminal-court judges. In fact, for most of his post, Abrams excludes criminal cases from the kinds of cases in which “rule of law is functioning very well, thank you.” Towards the end, though, he suggests that because the “vast majority” of criminal cases do not suffer from the kind of “political interference [that] is common in certain types of cases,” they should not be used “to make a general assertion about rule of law in China.”

Here, I think the argument is too simple. For one thing, recent research by Professor He Xin suggests that court adjudication committees—committees made up of court officials not directly involved with hearing cases and linked personnel-wise to party organizations responsible for “guiding” judicial work—weigh in on criminal matters far more frequently than in other types of litigation, even in routine cases. Moreover, the presence or absence of such direct political interference in court decision-making is not the only standard against which to measure judicial independence or, particularly, rule of law. New empirical research by Prof. Mike McConville and his collaborators on the recent volume Criminal Justice in China: An Empirical Enquiry shows the extent to which criminal cases of all stripes and at all levels are riddled with procedural flaws that undermine their substantive outcomes. That Chinese courts cannot provide an effective forum to remedy these flaws—even when they violate Chinese law and (especially) when they violate China’s constitution—and routinely hand down criminal sanctions despite them is also an indictment of their lack of independence and powerlessness as promoters of rule of law.

McConville makes another argument that is relevant to Abrams’s post. Taking a comparative perspective on how criminal justice operates in China and other jurisdictions, McConville contends that efforts to reform criminal justice through legislation and other rule-making does not tend to change the way in which actors in the criminal justice system behave as much as it changes the way that they account for their behavior. Internal institutional rules enable actors like the police to make end-runs around black-letter legal proscriptions in the name of “higher goals” valued within the system, such as preserving social stability through crime-fighting.

I’m not as convinced as McConville about the inevitability of this sort of cynical institutional adaptation to reform initiatives, but I do agree that legal reform in China is likely to continue this pattern as long as the legal system serves to further political ends that are not necessarily congruous (and often patently incongruous) with universal human rights principles. In any case, I think that it’s highly misleading to suggest that even the routine operation of criminal justice in China resembles the kind of “rule of law” observable in the civil law space.

So, having said all that, what about the question of fairness that Abrams raises? Because I don’t see China’s judicial system as operating in completely separate modes—an autonomous, rule-of-law mode in the civil sphere and a politically dominated, procedurally challenged mode in the criminal sphere—I think that you don’t really gain much more understanding of how the system “really operates” if you dissociate one from the other. I’m all for paying more attention to the operation of civil justice in Chinese courts, but only if such attention doesn’t simply end at the superficial conclusion that rule of law ideology has taken firm root in Chinese civil courts and criminal courts are simply waiting to catch up. Both spheres operate according to an underlying utilitarian logic that suggests that these divergent descriptions are both accurate and likely to remain so until more fundamental changes are made at the political level.

In other words, high-profile criminal cases are not necessarily the outliers that Abrams suggests they are. And as far as fairness is concerned, then, if asked to choose between pursuing a fair hearing for the efforts of Chinese judges and legal reformers and a fair hearing for suspects and defendants facing imprisonment or death in China’s criminal justice system, I suppose I have already made my choice.

Bo News is Good News™: More Likely Trial Scenarios

In my last post, I argued that the fact that the criminal investigation against Bo Xilai was being handled by the Supreme People's Procuratorate suggested that his case might be tried in first instance by the Supreme People's Court. While that is still theoretically a possibility, an acquaintance has kindly pointed out to me that the Supreme People's Procuratorate also handled the investigation in the corruption case of former Shanghai party secretary and Politburo member Chen Liangyu, and it appears that the same was likely true in the case of former Beijing party secretary and Politburo member Chen Xitong.

In each of these previous corruption cases, after initial investigation was completed by the SPP, the cases were eventually handed over to provincial-level procuratorates for prosecution. Chen Xitong's case was handed over to the Beijing procuratorate, and the SPP handed over Chen Liangyu's case to prosecutors in Tianjin. (Both Beijing and Tianjin, as directly-administered municipalities, are considered to hold positions in the administrative hierarchy of places equivalent to a province or autonomous region.)

So, the most likely outcome for Bo is probably the same: his case will be transferred to a provincial procuratorate. There is, however, one final question regarding jurisdiction. The trial of Chen Xitong was heard by the Beijing High People's Court (i.e., at the provincial level), which meant that his appeal was heard by the SPC. In Chen Liangyu's case, the trial took place one step lower, at the level of the intermediate court. At which level will Bo's case be heard? My guess would be a provincial high court somewhere, but my track record's not great when it comes to predictions.

Bo News is Good News™: Jurisdiction Matters

UPDATED: Please be sure to read this important addendum to the analysis in this post.

Just before midnight last night, the Xinhua News Agency issued a terse announcement (English, 中文) that a criminal investigation has been filed against former Chongqing Party Secretary Bo Xilai (a.k.a, "Mr Flamboyant") for unspecified "alleged criminal offenses." Notably, it's the Supreme People's Procuratorate that is carrying out the investigation, which indicates, first, that the main charges against Bo fall under the category (or categories) of corruption, dereliction of duty, or using official authority to infringe upon civil rights and, second, that the case is being considered a "major criminal case of national significance." (See Articles 8 & 13 of the 人民检察院刑事诉讼规则).

This categorization as a "major criminal case of national significance" may mean that the case will be tried in first instance by the Supreme People's Court (see Article 22 of the Criminal Procedure Law). If so, this would be only the second case to be tried in first instance by China's highest court since the trial of the "Gang of Four" in 1981.

Actually, technically speaking, I think Bo's would be the first case to be tried in first instance by the SPC, since the Gang of Four was tried by a "special tribunal" authorized by a 1980 decision of the National People's Congress Standing Committee. At this point, there's no indication that a Bo trial would follow that precedent.

This raises some interesting procedural issues. The first involves the right to appeal. (I'm grateful to Prof. Sam Crane for pointing me toward this line of inquiry.) China's criminal process normally involves a trial of first instance followed, if requested by either defendant or prosecution, by an appellate hearing that results in a final ruling. But if the case is tried in first instance by the SPC, there is no superior venue for appeal, so the first-instance verdict is considered final and there is no avenue for appeal.

Likewise, it appears that if Bo were sentenced to death (either with immediate execution or suspended for two years), he may not be eligible for the "final review" process normally carried out by the SPC. I'm not entirely certain about this last point, as I can't find any discussion in the law or associated regulations that deal with this (obviously rare) set of circumstances, but I suspect that the logic would be the same as for appeal.

Given all of this, I'd say there's still a small chance that Bo will be tried before the 18th Party Congress early next month. Of course, the precedents of Chen Xitong and Chen Liangyu suggest that trial will await conclusion of the congress, but the way this case is being handled by the Supreme People's Procuratorate suggests that those precedents might not be relevant here. Assuming that the central leadership has an interest in having Bo's case resolved prior to the leadership transition, then the removal of potential delays due to appeal seems to facilitate that.

From Xinhua's report, it seems as though the case is still in the investigative stage. Presumably the Central Commission for Discipline Inspection has done much of the investigation of Bo already, and there is also likely to be evidence carried over from the Gu and Wang trials. So, it might not be long before the prosecution sends the case to the court, which was the stage at which, in those earlier cases, more details began to emerge.

So stay tuned, and remember: Bo News is Good News™.