Jerome A. Cohen. Bo Xilai Case is the Biggest Test for China’s Legal Progress since Gang of Four Trial. SCMP (South China Morning Post)

January 3, 2013

Beijing’s pending prosecution of deposed Politburo member Bo Xilai and the recent murder conviction of his wife, Gu Kailai , have again brought China’s criminal justice system to world attention. Having detained Bo in March, not until October did the Central Commission for Discipline Inspection turn him over to the state prosecutors for indictment.

No indictment has yet been issued, perhaps because Bo’s prosecution presents the party with its thorniest legal challenge since the 1980-81 trial of the “Gang of Four”, which marked China’s transition from Mao Zedong’s Cultural Revolution to Deng Xiaoping’s radical new policy of reform and opening up. Will Bo be given a similar political “show” trial, as the most recent victim of a Communist legal tradition made infamous by Stalin’s 1930s “purge trials”?

Actually, the Gang of Four trial was a misnomer, since there were actually 10 major defendants tried before two chambers of a special tribunal. Yet the chamber dealing with Mao’s widow, Jiang Qing , and her colleagues was the focus. They had been arrested in October 1976, shortly after Mao’s death. It took over four years to bring them to trial in a way that would assure the nation that the defendants, who were saddled with principal responsibility for inflicting a decade of unspeakable harm on tens of millions of people, would be properly dealt with.

This would have been an ambitious task for any government, but particularly for one just beginning to recover from that nightmare of lawlessness. Indeed, the attempt to dispense justice in such a politically charged situation, in a country whose legal institutions had long been shattered, became the target of scepticism, even ridicule. The American comic strip Doonesbury, for example, claimed China had waited more than four years because it first had to put the judges through law school!

The purpose of the trial was not only to assign political responsibility for the nation’s disastrous decade, but also to punish the accused as criminals. In addition to various “counter-revolutionary” crimes, their alleged misconduct included directing officials to commit many offences, such as illegal searches and seizures, lawless detentions, torturing suspects to extort confessions, and wounding and killing people without legal procedures.

The trial was a golden opportunity to enhance the new Deng government’s legitimacy by introducing the masses to the principles underlying the Communist government’s first codes of criminal law and procedure, which had just gone into effect. Thus, instead of preventing public access to the trial on the grounds that it involved “state secrets”, as the party often does, Deng boldly decided to give it maximum publicity.

Unfortunately, the trial, which lasted roughly two months, failed to prove a satisfactory educational vehicle. It did get off to a promising start, however. The 15 members of the tribunal appeared serious and dignified, and a few were well known. Professor Fei Xiaotong, China’s most famous social anthropologist, took part as a lay judge, apparently to give representation to the broader public.

For those observers interested in resurrecting the status of lawyers, the high point came at the start, when the avuncular court president asked Jiang Qing, who until that point had played the role of helpless widow, whether she would like a defence lawyer. “What is a defence lawyer?” she asked. Here was the first opportunity to educate the masses, and the court president gave her a brief but useful explanation of a criminal defence lawyer’s functions.

At that point, watching the broadcast on television in my Chinese hotel, my hopes for the trial’s educational value rose. But then Jiang asked: “Can a defence lawyer take my place so I don’t have to come to court?” When the court president said this would not be possible, Jiang snapped back: “Then I don’t want one.” Shortly thereafter, she had to be temporarily removed from the courtroom for obstreperous behaviour, and the trial went downhill.

Jiang was not solely responsible for the trial’s failure to generate respect in legal circles. The ad hoc tribunal assembled by the party also displayed some warts. Indeed, some observers and Jiang herself challenged its legality, claiming the case should have been handled by a regular court. Moreover, the trial hardly seemed fair. Although some prosecution witnesses testified, there was no opportunity for effective cross-examination by the well-known scholars and lawyers who served as defence counsel, and they were not permitted to introduce any witnesses. By contrast, the judges’ inquisitorial questioning of defendants made prosecutors seem superfluous.

Since guilty verdicts were assured, as almost always in China, the only real issue concerned the sentences. While the trial was proceeding, Judge Fei made a bizarre lecture tour of several North American law schools, where he discussed it and even asked his audiences what they thought might be appropriate punishments.

Nevertheless, in light of the failings of China’s current criminal justice system, certain features of the Gang of Four trial merit reassessment. For example, this year’s orchestrated, one-day, supposedly “public” trial of Gu and the closed trials of her husband’s police chief, Wang Lijun , and his assistants make one appreciate the relative openness of the Gang of Four trial.

Moreover, the evidence produced in that complex and occasionally chaotic proceeding, although sometimes not clearly linked to the defendants, seemed largely credible, raising fewer questions than Gu’s trial did. The courtroom witnesses against Jiang and her co-defendants were carefully coached, but their humanity shone through during unscripted exchanges with judges and accused. And there was certainly no repentant confession from Jiang, who bitterly defended herself throughout the hearings and in a final speech of almost two hours, understandably seeking to put much of the blame on Mao.

Furthermore, the Gang of Four trial drove home a major lesson that deserves amplification in today’s China, where police and other officials, who should be implementing newly legislated criminal procedures designed to protect suspects, often engage in lawless search and seizure, beating, kidnapping, detention in “black jails”, “residential surveillance” in “safe houses”, and torture. As Fei noted in his introduction to a book published about the trial, similar misconduct “took place despite the constitution of 1954 specifically guaranteeing that the freedom of the person was inviolable and the homes of citizens of the People’s Republic of China were also inviolable”.

Bo’s trial is by no means likely to be as lengthy, transparent or chaotic as that of the Gang of Four. Its procedures will probably resemble the nominally “open” but carefully restricted trial of Gu, if by that time the normally feisty accused has been reliably subdued, and can be counted on to confess and regret. That would mean a brief exercise in which no significant witnesses are summoned and subject to cross-examination, even if the defendant and his family are permitted to appoint lawyers of their choice, as required by law but often violated in practice.

The script for the recitation of pre-trial statements in court would be drafted to reveal only what the party thinks useful to present. Thus, despite China’s significant advances in both information technology and criminal legislation during the past three decades, the people are likely to learn much less about Bo’s case than they did about that of the Gang of Four.

This article was published in the South China Morning Post on January 3, 2013 under the title “Legal Challenge.” (简体中文)(繁体中文

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. See also