The Gu Kailai murder trial was held on August 9th in Hefei Intermediate People’s Court in Anhui Province. Partly because Gu Kailai is the wife of Bo Xilai, a disgraced Chinese politician, and partly because the victim, Neil Heywood, was a British Businessman, the trial of this case attracted many people’s attention from home and abroad. Unsurprisingly, the trial process was criticized by foreign media and legal scholars. Many have insinuated that Gu Kailai’s defense lawyers were selected by the government, and opined that China’s criminal procedure has seen almost no change in the past 30 years. Others have regarded the trial as similar to that of the “Gang of Four,” which was highly politicized.
Here are my three arguments: First, the trial of the “Gang of Four” was a legal resolution for a political issue, whereas the trial of Gu Kailai is different. Secondly, since the start of the reform and opening-up policy, China has improved its criminal justice system significantly, a fact that should not be neglected. Thirdly, China still needs to improve its criminal procedure, especially by providing fairer trials in sensitive cases.
The trial of the “Gang of Four” was a historic case in China’s legal history. It symbolized China putting an end to Mao’s era and to the Cultural Revolution policy of “taking the class struggle as the key.” It also symbolized the start of the construction of law. The “Gang of Four” trial was a lawsuit more of political significance, which was problematic, as the alleged crimes had been committed before the Criminal Law was promulgated in 1979 and some could even be regarded as legal if seen from the then existent law. Therefore we can say that the trial of the “Gang of Four” was a legal resolution for a political issue.
But the trial of Gu Kailai is different. Some people might argue that the case involving Gu Kailai and her husband Bo Xilai resulted from political struggle in the country. However, Gu’s case was over a criminal issue, and not a political one. Gu Kailai’s alleged offense should be regarded as a crime according to the Criminal Law promulgated before her offense was committed. Therefore, the trial of Gu Kailai is not an ex post facto accusation, and has been conducted strictly according to the established law. Last but not least, the trial of Gu will not end an old regime, nor does it symbolize any new era. It might bring down Bo Xilai, a municipality leader, such as Chen Xitong, the ex-party secretary of Beijing Municipality and Chen Liangyu, the ex-party secretary of Shanghai Municipality.
In fact, since the third plenary session of the party’s 11th central committee, which ushered in China’s reform and opening-up policy, China’s criminal justice system has significantly improved in many aspects. In a sense, Mao’s era featured “no laws and no heaven.” In Deng’s Era, legal systems were established and improved. In 1979, the first Chinese Criminal Procedure Law was promulgated and some fundamental criminal justice systems were constructed, and the accused were entitled to some legal rights, including the right to counsel. Although in some cases protection of the rights of the accused was limited, it was a great leap toward the rule of law. In 1996, the Chinese Criminal Procedure Law was revised, and the accused were entitled to more rights. Most importantly, from the very beginning of the criminal investigations the suspects have had the right to have lawyers provide them with legal advice and other legal aids. While some western scholars still doubt the applicability of the Law, China’s criminal procedure has been significantly improved over the past 16 years. In March 2012, the Criminal Procedure Law was revised again, and many aspects of the defense system were further improved. Most significantly, the new Criminal Procedure Law entitles the accused to the right against self-incrimination; introduces the attorney-client privilege; and the privilege for family members. In essence, most Chinese scholars believe that the new Law has greatly improved China’s criminal procedure.
However, China’s criminal procedure still needs to be improved. It seems that in most ordinary cases, the accused can enjoy the rights as prescribed by law. But in some cases, where a state secret is involved, or sensitive political issues are involved, the accuseds’ rights are not fully protected. Even in the Gu Kailai case, it was reported that the government selected the lawyers for her for reasons unknown. In fact, there have been other cases where the government has appointed lawyers for defendants, and thus abridged the defendant’s rights to defense. Such cases have happened in local People’s Courts. Although this may not necessarily result in substantially unfair handling of the case, it endangers the procedural justice. Such practice not only denies justice to the accused, but may also damage the credibility of the court.
It is time for China to provide all people with the opportunity to a fair trial, which is an essential requirement for a mature rule of law.
YI Yanyou is Associate Professor at Tsinghua Law School