30 October 2012

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.

27 October 2012

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™.

09 October 2012

Book: Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China

While I'm on the subject of Liu Xiaobo, I thought I'd mention that I had the privilege of contributing a chapter to a recent book entitled Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China, edited by Jean-Philippe Béja, Fu Hualing, and Eva Pils. The book was published by Hong Kong University Press in July and, unlike many books published by academic presses, is available in paperback and e-book editions. You can see a preview of the contents here:

Breaking: "No News from Nobel Laureate Again This Month"

It's been two years since Liu Xiaobo was awarded the Nobel Peace Prize, and, for much of that time, his wife, Liu Xia, has been confined to her apartment, constantly guarded by police under a form of extra-legal house arrest that has become too familiar in recent years.

Yesterday, Damian Grammaticas at the BBC asked me for my thoughts on this state of affairs for an online piece they were doing to mark the occasion. It's a very interesting report, with more detail than we've seen in a while on the current situations for both Liu Xiaobo and Liu Xia thanks to an anonymous source close to the family, who confirms what many have long suspected -- that Liu Xia is being punished as a way of putting pressure on Liu Xiaobo (in this case, to go into exile).

Much of what I had to say was included in the BBC story, but I wanted to repost my comments in full here as well, mainly because my current preoccupations don't leave me much time to post anything new to this blog.
I am not aware of any legal authority for restricting Liu Xia's liberty and, indeed, I don't believe the Chinese authorities have attempted to justify her treatment with reference to the law. Her relegation to this ambiguous zone appears to be deliberate, because if you can't treat her treatment as something sanctioned or even covered by law, then how do you begin to challenge it? By denying that she is being held against her will by agents of the state, the authorities carry on the pretense that there is no factual basis upon which to hold them accountable. So, because the relevant authorities can act with such absolute impunity, Liu Xia effectively ceases to exist, both as a human being and as an issue.

And, for that matter, the same can almost be said of Liu Xiaobo, since one of the few ways the outside world has to learn anything about individuals who have been imprisoned in China is through what their relatives learn and observe during periodic prison visits. I don't know the last time that Liu Xia was able to visit her husband, but I am fairly certain that any interaction she has been able to have with him has been under the precondition that she remain silent. So, to the extent that this reflects an official strategy to counter Liu Xiaobo's influence, it would have to be deemed successful. At least as far as the international community is concerned, there's only so much interest that can be sustained by a person's continued absence. That's why you don't see too many headlines proclaiming "No News of Nobel Laureate Again This Month."
One thing I wanted to add at the time, but couldn't quite find the quotable words, is that this effort to render Liu Xiaobo completely irrelevant will ultimately fail, because Liu's value rests in his ideas and, no matter how hard they try, they cannot imprison those ideas, which can continue to have influence even while he remains behind bars.