On July 25, Xinhua, China's official news agency, finally announced news that the country had waited over a year to hear: "Bo Xilai was indicted Thursday in Jinan, Shandong Province, for bribery, corruption and abuse of power." With that, the Chinese Communist Party initiated the prosecution of the former Party Secretary of Chongqing, a man who had ambitions to lead China before his spectacular fall from grace last March.
In anticipation of Bo's trial this month, observers have focused on two main angles: the significance of the trial for President Xi Jinping's fight against corruption in the Party, and the fortunes of political factions that fought for months over Bo's fate. The assumption is that, in China, politics and law are inseparable, and that, "trial of the century" hype aside, if there is a chance for Xi Jinping to implement the rule of law, Bo's trial would not provide it.
Not so fast. Despite the strong political undercurrent, this trial is actually a singular opportunity for the Communist Party to demonstrate a previously absent understanding of the rule of law. Not for nothing did the People's Daily, the Party's newspaper, proclaim in a front-page editorial the day after the indictment that "China is a socialist country ruled by law that will not trample on dignity and authority." Other official media across the country dutifully echoed the idea that the trial needed to and would show that no one is above the law in China.
Breaking with its thin legal tradition, the Party is showing a subtle but hugely consequential shift in its mindset towards the "rule of law". Traditionally, the government, and most Chinese people, think of the law as simply a means to codify the right and just outcome. Bo Xilai, for one, freely disregarded legal protections in his ruthless campaign against Chongqing's gangs and his political enemies. For that, many Chinese people still regard him as a great man of action.
In the Chinese legal tradition, insisting on correct procedure was considered a tactic used only by the guilty. Arguing the letter of the law suggested subversive intent. But these days are over: the bulk of Xinhua's announcement carefully walked through the legal process that Bo had undergone leading up to the indictment, including the role of the various judicial organs that had reviewed the case. Importantly, it also stated that Bo had "been informed of his legal rights and interviewed by prosecutors. His defending counsel [had] delivered its opinion."
The immediate response is, of course, that the legal showmanship, though novel, is really just a sham. In the sense that the verdict was determined far in advance by political deal making, then yes: the whole exercise is meaningless. But if the Chinese government now views the law as something to be navigated and not simply ignored, then it has already overcome a significant ideological obstacle. Jerome Cohen, an expert on Chinese law who secured a place at NYU for dissident Chen Guangcheng, mused that Party leaders would think of Bo's trial in the following terms: "Should it be extensive and televised like that of the Gang of Four, or truncated and regimented like that of [Bo Xilai's wife] Gu Kailai?" Both the henchmen of the Cultural Revolution and Gu were afforded nothing more than a show trial. But for Bo, the Party has conceded that state action must find a justification in the framework of law. Ironically, then, one of China's staunchest opponents of the rule of law has helped lay its foundation.
Alas, the Party's handling of Bo's case shows that this shift is far from complete. For one, the deliberate pace of the proceedings does not inspire confidence. From the time Bo was dismissed as Party chief in Chongqing, rumors of factional infighting over his punishment have overshadowed news of legal developments, gaining more significance as over a year elapsed between his expulsion from the Party and the onset of the trial. By drawing out what should have been a shorter legal process, the Party has allowed too many external factors to weaken the legitimacy of the legal outcome.
Ironically, then, one of China's staunchest opponents of the rule of law has helped lay its foundation.
All is not lost, however: Beijing can still use the judicial process to silence Bo's powerful supporters. And it should. Everybody expects (and wants) a guilty verdict for Bo, so letting in procedural uncertainty would not alter the outcome. Bo's opponents in the Party have already won; what's far more important at this stage is that they persuade his supporters to accept the victory as fair. Whether the Party manages this aspect will tell us how well it can integrate law into its political life.
Will they succeed? The effort is much easier said than done. It requires that the Party reconcile the rule of law with its hold on absolute power. It's all well and good that Bo is not above the law -- but what about everyone else who are still in office?
The Party need not fear -- it is at a point where it requires a fresh approach to taming its political energies. Xi Jinping cannot be expected to preserve the awkward status quo forever: political conservatism, to the point of recalling Mao Zedong, and economic liberalism. To find a way out, he may have to take a page from Bo Xilai's playbook. Despite Bo's ruthless authoritarianism in Chongqing, he obtained political legitimacy by convincing his constituents that he was their benevolent conspirator in a uniformly corrupt party.
That popularity is one of the reasons he now finds himself on trial. In order to cement his own political authority, Xi needs to offer a correction, both of the governing style and the terms of the political game Bo represents. As an import, the rule of law is out of place in "Chinese Exceptionalism," and yet that is precisely why it is attractive. Law, though not without its own ideological detractors, largely retains its sheen of uprightness from Western countries.
A Xinhua editorial about Bo hints that Xi may have already reached this conclusion:
The central government has handled a number of successive issues involving officials, both "flies" and "tigers," because regardless of whether a chief, director or minister is involved, as long as there is a problem, they should be subject to the Party's discipline and punishment. Once under the rule of the masses, there should be a clear understanding of the ugly face of personal gain. It is necessary to obey the decision of the central government and observe the legal process.
Summer vacation for China's high officials, during which they hash out policy initiatives, is just around the corner. Bo's fate needs to be determined before then to affirm Xi's ability as a leader. And to be effective at his first National Party Congress as President in the fall, Xi must first meet the challenge of being China's chief jurist.