IN THE NAME OF JUSTICE: STRIVING FOR THE RULE OF LAW IN CHINA by HE WEIFANG
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00647.x |
| Date | 01 November 2013 |
| Published date | 01 November 2013 |
IN THE NAME OF JUSTICE: STRIVING FOR THE RULE OF LAW IN
CHINA by HE WEIFANG
(Washington DC: Brookings Institute Press, 2012, 230 pp., $34.95)
August 2013: the world's media carries footage of the trial of Bo Xilai, the
most significant trial of a Communist Party leader since the Gang of Four in
1980. Like that event, Bo's trial is drenched with moral and political
symbolism. Its message must be broadcast to the masses and the world at
large. The trial of the Gang of Four signalled regime change, the end of the
Cultural Revolution, the prosecution of those responsible for the `ten years
of lawlessness' which saw China's law schools closed, her lawyers sent to
the countryside to learn from the peasants, or beaten to death by Red Guards.
The publication in 1979 of China's first Criminal Law and Criminal
Proced ure Law wa s intend ed to hera ld an end t o this cap riciou s
administration of justice. The harm it caused to so many people, including
party members such as Deng Xiaoping, was not to be forgotten. In 1979,
China turned to law. A plethora of legislation followed in both the criminal
and civil spheres; law schools reopened; private law firms were permitted;
citizens were given rights; it was no longer a case of `verdict first, trial
second'.
The trial of Bo Xilai, therefore, took place against a very different back-
ground ± the court in Jinan allowed in the TV cameras; it itself supplied a
Twitter-feed of the testimony; the accused was seen defending himself; the
witnesses came in person to give their evidence and were openly challenged
by Bo. The message was clear: the rule of law prevails; no-one is above the
law; corruption, even in the highest places, will be punished; the party is in
charge and will safeguard the country.
But in such trials, politics is still the engine and the decider. In `important
or sensitive cases' such as Bo's, the verdict is decided long before trial by a
special adjudication committee dominated by the Communist Party and the
police. There is no presumption of innocence in the Chinese criminal justice
system; confession remains central and is often the result of police coercion.
Defence lawyers are hard to find; 99 per cent of trials end in conviction;
courtrooms ± ostensibly open to the public ± routinely only allow a chosen
few in; critics (including the press) are kept out. As research has shown, most
trials are `paper trials'; witnesses rarely appear in person, nor is the defence
allowed to cross-examine them. Even where the accused is able to secure a
defence lawyer, the state places strict limits on what she or he can do.
Presenting an alternative to the state's case can even lead to the lawyer's
arrest and detention for `fabricating evidence'. Defence lawyers have been
handcuffed and dragged out of court for less; some have even been forced to
go on the run to escape detention.
He Weifang is renowned in China for attacking the shortcomings of this
legal system. Paradoxically, He himself was one of the first to accuse Bo
Xilai of wrongdoing, helping to set in train the flawed process which
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ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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