This article appeared on Council on Foreign Relations' website on August 27, 2013.
China’s Rule-of-Law Trial
The just-concluded trial of former Communist Party boss Bo Xilai was unprecedented in opening up a high-profile legal proceeding to public scrutiny, says legal scholar Jerome A. Cohen. The case also reveals the conflicts among the country's leaders as they grapple with everything from corruption to an economic slowdown. "They're not repudiating a so-called Western legal system even though they say they can't adopt it all," Cohen says. "The fact is they can't escape its influence and this trial shows it." The platform of President Xi Jinping, he says, "is very mixed up. You have a very confused leadership."
Fallen Chinese politician Bo Xilai stands trial inside the court in Jinan, Shandong province (Jinan Intermediate People's Court/Courtesy Reuters).
The case against a leading Chinese official, Bo Xilai, has ended. The verdict will come out eventually, but what's the significance of this highly publicized trial?
It has a great significance from several points of view but the most important to me is its significance for justice in China. China is increasingly seething with a sense of injustice. As China has made economic, social, educational, and legal progress in the past three decades, more and more people have come to demand fairness. They want a right to be heard, they want a judiciary that demands integrity, they want to feel they can have somewhere to go to settle their disputes in a way that can inspire confidence, and this trial really showed them something. In the normal trial in China, you don't have witnesses come to court, you have no right to face your accusers, you have no right to cross-examine them. The trial of Bo Xilai showed what it means when that occurs.
Give an example.
"Leaders of the party have recognized that the fight against corruption for them is a life or death fight."
In the case of Bo Xilai's wife [Gu Kailai], who testified against him, she did not turn up in court. The prosecutor merely read aloud in court testimony she had given out of court before the trial. There was no defendant, no defense counsel to ask questions and bring out a fuller picture of what she was saying or rebut it. It was obviously so unfair that overnight, party officials saw that this was not effective so the next day they produced an eleven minute video of part of her previous day's written testimony. It showed her being interrogated by a friendly questioner; again, no opportunity for anyone to interrupt her, to qualify what she said, to ask a question, to rebut, but at least it did one thing: it humanized her testimony and it gave the Chinese people a chance to examine what we in the law call "demeanor evidence."
The leaders of the state recognize the desirability and the importance if a trial is going to have integrity and credibility to have your accusers confront you in court, and they produced several of the other major witnesses. Bo Xilai fascinated people because he took the initiative away from even his own competent defense lawyer and he asked questions of witnesses and ridiculed some of them.
You've been following Bo Xilai for quite a while. Did you think he had great potential?
Despite the fact that since 2007 he had been spouting Maoism, people who knew him before 2007 all said he's no Maoist. The Maoism was a gambit to get to power, but I always felt that once in power, because of his openness to the world and his intelligence, he would see that China has got to be brought into the twenty-first century, gain the respect of other powers, and improve the economy by improving the legal system, reducing corruption, and gradually having a freer society. He was smart enough to see that, but he never got there because he took an extreme path to power and because people didn't like him. All these other guys are team players. This guy is not, and of course since [former Soviet leader Mikhail] Gorbachev, the Chinese leaders have learned to fear individualists.
How do you think he did in the trial?
He put on a pretty impressive show. It wasn't good enough to persuasively rebut the accusations against him, but it did give people, even his own supporters, a feeling that he hadn't been denied a right to speak and to defend himself, and that's unique in Chinese Communist political trials. Bo Xilai has had an opportunity to express himself, in public, in a court, [in] a limited way because his testimony wasn't open to a public audience, but it was open in a sense, because the government provided a censored transcript of what he said.
This is a tremendous thing for justice; it's going to stimulate further the rising demand in China for a fair legal system. Getting back to a theme I know you're interested in, where do the ideas come from for a fair legal system? Are these Western ideas? Are these universal ideas? This is worth talking about.
Is this the platform of President Xi Jinping?
No. Xi's platform is very mixed up. You have a very confused leadership and the same people within the leadership speak with conflicting voices. The major irony in the Bo Xilai case is what alienated him from the rest of the leadership is his resort to a Maoist, Cultural Revolution–style politics that was designed to propel him into the highest ranks of the leadership. They've knocked him down, but at the same time that they're trying him for various crimes, their whole ideological line at this time is very similar to his. They're not knocking Chairman Mao; they are still espousing a leftist, Communist doctrine. Indeed, they are trying to revive it. At the same time, they're not repudiating a so-called Western legal system even though they say they can't adopt it all. They can't escape its influence and this trial shows it. It's very complicated.
They are arresting a number of high officials on corruption charges, right?
Yes. China is now suffering very badly from corruption. Corruption was what did in theChiang Kai -shek predecessor regime in the 1940s. The contemporary leaders of the party have recognized that the fight against corruption for them is a life or death fight, but once again, they are caught. On the one hand they purport to condemn and punish corruption, and they do it to a limited extent; on the other hand, the real situation prevents them from doing it in a persuasive, effective way, because if they did that they would bring down the regime.
What is their view about liberalizing the media?
More and more in the last eight to ten months the press has been under a great repression. They do not believe in the free press, and more and more they're showing it. Instructions that come out every day tell the press what to publish, what not to publish, how to publish, what the headlines should be, on what page the news should appear, what sources can be quoted and what can't. They do not believe in free expression, although the press, naively after the first day of Bo Xilai's trial, said, "Look at this wonderful transparency! For the first time they are issuing transcripts for a trial hearing!" The reason for it wasn't a desire to free the press; if they wanted to free the press, they would have let them attend the trial. The reason for issuing transcripts is they wanted to control the transcript so they could continue to be in control of information.
But why did they even bother?
Because they are under enormous domestic and international pressure to meet certain standards, and where do those standards come from? Are these foisted from the evil capitalist conspirators abroad who are trying to bring down the regime? Are these natural human desires to know what's going on in your own government? Where did they come from? Rising discontent in China, which has a huge increasing number of public, sometimes violent, protests everyday?
Is the economy doing well enough that they can relax? Or are they worried about the economy?
They have done remarkable things since 1978 and of course the world thinks the economy of China can't be stopped and is going to continue this way and is invulnerable, but the Chinese leaders know better. The economy seems to have peaked. Its many unsolved problems seem to be coming home to roost and we don't know how serious it's going to be. So far the leaders have shown considerable ability to be resilient and be fast on their feet and put out every fire as it develops, but they've had to do so by ways that have proved to be costly in the long run and they know they can't continue forever. This move from an export economy to a domestic consumption economy is proving very difficult because the vast state-owned enterprise interests and the families—thousands of rich families—do not want to change the system that has been so wildly successful for them.