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.
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.
Bo disappeared into this system on March 15, 2012. There he remained, in a realm completely ungoverned even by the elastic and prosecution-friendly provisions of the Chinese Criminal Procedure Law, until at least the end of September. On September 28, the Party's Politburo, one of China's top political bodies, announced that Bo Xilai would be ejected from the Party and his case "transferred" to judicial organs (police, prosecutors, and courts) for handling "according to law."
This announcement is the key to understanding the Party's view of law: whether it is to be navigated or ignored. September 28, 2012 represents (approximately) the date from which the political leadership of China decided that statutory legal procedures should be followed. The corollary, of course, is that it represents the date prior to which the political leadership paid no attention to legal requirements. Up until that time, the handling of the Bo case, including his illegal forcible detention, was deemed an internal Party matter and nobody else's business. The very concept of "transferring" a case to judicial organs implies that a case can be located elsewhere than in the judicial organs and outside of their jurisdiction until an external decision maker -- here, the Party -- decides to pass it on to them. And that decision is not itself constrained or governed by law; it is purely political. Indeed, the fact that the Party could change the law to legalize shuanggui but has never done so suggests a defiant declaration of its intent never to subject itself to legal constraints.
Far from being a victory for the rule of law, then, the Bo Xilai trial looks to be just the same old, same old. Nobody believes that Bo is the only corrupt politician of his stature in China; the fact that others are not being prosecuted suggests that what is operating here is not a law-like principle of cause and effect, of crime and punishment. (Indeed, a commentary by China's official Xinhua News Agency admits, astonishingly, what everyone really thinks: that Bo's real offense was to fail to be a team player.) Nobody believes that China's top political leaders haven't dictated the procedure and outcome of the trial. (Rebecca Liao's piece seems to acknowledge this at the end by pointing to Xi's "challenge of being China's chief jurist.") Few people like to be cynics all the time, and so it is always tempting to look for sprouts of the rule of law in China. But this case is just not that sprout.