The Bo Xilai Trial and China's 'Rule of Law': Same Old, Same Old

The high-profile case is just business as usual for the Communist Party.
jinancourtbanner.jpgA policeman stand guards in front of the Jinan Municipality People's Intermediate Courthouse buidling, where the trial for disgraced Chinese politician Bo Xilai is likely to be held. (Kim Kyung-Hoon/Reuters)

In a piece published earlier this month atThe Atlantic, Rebecca Liao states that contrary to the assumptions of most observers, the trial of Bo Xilai, the disgraced former Communist Party chief of Chongqing, is a "victory for the rule of law in China". While fully acknowledging that the outcome of the trial is not in doubt, she argues that the Chinese government's preparations for and propaganda about the trial show that it "now views the law as something to be navigated and not simply ignored."

If only that were true. And in a sense, it's surprising that it is not true. China has no separation of powers and so lawmaking is an internal function of government; in other words, the government can pretty much enact any law it wants. It can change any law it finds inconvenient, or pass any law it needs to justify some action, thus enabling it to say (truthfully!) that it is always following the law -- should it wish to do so. And yet this is not what we actually see. Instead, we often see the government ignoring its own law -- for example, in the extended (and utterly illegal) house arrest of Chen Guangcheng and Liu Xiaobo's wife, Liu Xia. The Bo Xilai case is no exception.

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For one thing, the government is ignoring, not navigating, legal requirements when it denies Bo his choice of lawyer without any apparent legal basis. But even more glaring is this: The entire procedure on which the case against Bo has been built is lawless.

Both the Chinese constitution and the Chinese Law on Legislation prohibit the physical restriction of personal freedom without a proper legal basis. And for years, Party leaders and documents have stressed the need to obey the Constitution and the law. In 2007, the 17th Party Congress work report stated that "each party organization and all party members must self-consciously operate within the boundaries of the constitution and the law, and must take the lead in upholding the authority of the constitution and the law". Similar language appeared five years later in the 18th Party Congress work report. And in December 2012, Xi Jinping stated in a speech that "we must firmly establish, throughout society, the authority of the Constitution and the law."

Yet over part of the period in which these elevated sentiments were being voiced, Bo Xilai was being held for months in a form of Party-based investigative detention called shuanggui ("double designation"). In shuanggui, Party officials and others are forcibly detained for what can be months -- sometimes in hotels or guesthouses, sometimes in special facilities -- by Party disciplinary officials, not state officers, and subject to interrogation under conditions so stressful that some detainees have attempted suicide. Even its defenders admit it has no basis in law; when you get right down to it, it's a criminal offense of unlawful detention. There is even a kind of backhanded official recognition of its lawlessness: When a shuanggui'd official's mistress put together a team to bust him out of the hotel room where he was being held, she was charged with disturbing public order, not aiding a prisoner to escape. And when you are sentenced to prison, you get credit for time served in lawful pre-sentence custody, but not for time served in shuanggui.

Donald Clarke is a professor at the George Washington University Law School and the author of the Chinese Law Prof Blog.

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