Institutionalize the Practice of Open Trial in the Case of Bo Xilai | CHINA US Focus

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Institutionalize the Practice of Open Trial in the Case of Bo Xilai

Tong Zhiwei,Prof. at the East China University of Political Science and Law
September 4, 2013
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The case of Bo Xilai, who was accused of bribery, corruption and abuse of power, has captured the world's attention. Now, the trail was over with the verdict to be announced at a later date.

Tong Zhiwei

Tong Zhiwei

What Bo’s five-day public trial has impressed the public most is its fairness and transparency, as has been typically pointed out by Li Zhuang, a former lawyer who developed both gratitude and resentment toward Bo Xilai, “through microblogging records of the trial on its official site of Sina Weibo( most popular microblog website in China), the Jinan Intermediate People’s Court has set an example for other courts in terms of openness and transparency;” “To bare all trial records for public review and scrutiny is an audacious breakthrough”, “that should be applauded and popularized. ”

He Weifang, a professor known for his relentless criticism of the behaviors of Chinese officials, has also come up unexpectedly to affirm the fairness and transparency of the trial, “For all the noticeable limit of attendance at the trial by the general public and the media as observers, the court has surprised us all by microblogging the basic proceedings of the trial," he pointed out, “adding that although a comparison of the number of the words of the records and the length of the time of the trial points to some omissions, most of the statements and arguments heard in the court have been made public, a step never taken by any other court when handling  similar cases before.”

Even Bo, the defendant himself, took the chance of his final statement in the court to praise the openness and fairness of the trial. “Offering both the accuser and the accused an opportunity to fully air their opinions and microblogging all information about the hearing, the five-day trial has demonstrated the determination of the Party Central Committee to clarify facts and uphold justice and further increased my confidence in the future of our country’s judicial system,” he concluded.

This author has also noticed, however, a common public view that roughly comes down to the point that such openness and transparency is possible only during the hearing of cases involving high-ranking officials such as Bo Xilai and will remain a legal ‘luxury’ for ordinary defendants and other parties. This viewpoint does not tell the reality. For many years in the past, there had always been a low degree of openness and transparency during the hearing of almost all cases, including that of political bigwigs such as Chen Liangyu, the former mayor of Shanghai. There is also an element of justified concern, however, in this viewpoint that our courts, for all their openness and transparency when hearing cases of bigwigs, will still handle cases involving ordinary defendants and parties in a secretive and covert manner as in the past and deny the latter the right to public trial. Indeed, the up-to-date practice of Chinese courts hearing cases in a semi-open, covert and even secret manner has violated the constitutional mandates and spirit calling for public trial of all cases and greatly jeopardized the creditability and authority of our judicial system, and should be terminated right away.

In order to execute pertinent constitutional mandates and spirit, promote judicial fairness, and free the general public from their aforesaid concern, it is absolutely necessary for China to take the opportunity of Bo’s trial to systematize the experiences of public trial of cases and sublimate them into a rule governing the hearing of all cases by courts at all levels.

China’s Constitution prescribes in Article 125 that except in special circumstances as specified by law, all cases in the people’s courts are heard in public. By demanding the public hearing of cases, the Constitution is driving at two purposes. First of all, it guarantees the right of all citizens to public trial in case of criminal prosecution or involvement in other legal disputes, a fundamental right enjoyed by citizens throughout the constitutional history of the world. In the framework of our constitution, it should also be taken as a fundamental right indirectly affirmed by the constitution. The second purpose of the above-mentioned constitutional provision is to submit the work of all courts and judges to public supervision and avert judicial corruption and unfair ruling.  

Observation of the constitutional mandates on public hearing of cases by courts is of great significance to the development of a judicial system of authority and creditability. Hearing of cases in public and with transparency contributes directly to independence of trial and decision because the public will see clearly whether the judges have remained impartial, whether the hearing has been conducted in great earnest or as a farce, whether there has been any extrajudicial intervention, or whether verdicts have been reached before hearing. Public trial will tremendously increase the cost of extrajudicial maneuvers to manipulate the results of trial and decision, and greatly cut the number of instances of extrajudicial intervention.

Public hearing of cases is also a safeguard for promoting judicial fairness and reducing judicial corruption. To a great extent, judicial covertness begets judicial injustice, and the degree of judicial openness determines the extent of judicial fairness. Judicial injustice and judicial corruption come in pair, while the extent of judicial fairness and that of judicial corruption vary inversely. All these have been rules proved time and again by experiences in the world judicial history.

Also, courts and judges will naturally win awe and respect from the general public if they hear cases, settle disputes and uphold justice right under the latter’s eye. A court hearing cases in public will be a classroom offering live legal lessons to the broad masses of people. By hearing cases in public, courts and judges are actually teaching law to the public through these cases and win respect and esteem from their ‘law students.’

Objectively speaking, Bo Xilai’s trial has set a model for Chinese courts to hear cases in public, a model that has won widespread support and acknowledgement from the broad masses of people. There is much more to be done, however, if China hopes to take this opportunity to systematize the experiences accumulated therein and sublimate them into a legal regime.

As has been pointed out above, access to public trial in case of criminal prosecution or involvement in other legal disputes is a fundamental right enjoyed by all citizens.  As a country that sticks closely to the system of statutory law, China should take legislative measures to guarantee the enjoyment of this basic right by all its citizens instead of leaving it to willful disposal by courts. These legislative measures, when taken in the future, should include at least contents such as free attendance by the public as observers, freedom of media coverage, and total disclosure of information by courts. In view of the process of formation of a system, however, exercise of this basic right by the public will still be decided by courts through internal regulations before endorsement of such legislative measures, we have to admit.

As believed by this author, it is now high time for the Supreme People’s Court to respect the basic right of Chinese citizens to open trial in case of law violation and formulate a unified national code governing public hearing of cases for this end, although formulation and implementation of such a code of conduct by the Supreme People’s Court will only be counted as an interim step taken before the adoption of any legislative measures by the highest organ of state power to guarantee public enjoyment of this fundamental right. 

Tong Zhiwei is a professor of constitutional studies at the East China University of Political Science and Law.

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