Aug. 4 (Bloomberg) -- China’s biggest trial in three decades may also be the prime test of whether President Xi Jinping’s campaign to bolster the rule of law in the world’s second-largest economy remains a work in progress.
Zhou Yongkang, the former internal security chief whose investigation for corruption was made public last week, faces a potential trial akin to that of his ally Bo Xilai in 2013. Preparatory work during an 18-month campaign against Zhou’s faction featured officials across the nation being taken for questioning and held incommunicado without trial, often for months.
Xi last week determined that a meeting of top party officials in October will focus on strengthening the legal system to “realize modern governance,” according to state media. His stated desire for reform is at cross-purposes with an anti-corruption drive and political purges that rely on extrajudicial methods. How the showcase Zhou trial is conducted may indicate whether the Communist Party is willing to change a secretive legal system and weaken the monopoly on power it has applied with ruthlessness for 65 years.
“It will be carefully managed in the way the Bo Xilai trial was managed -- though they will make it out as the law applying to everyone equally,” said Donald Clarke, a Chinese law specialist at the George Washington University Law School in Washington, referring to the Zhou case. “In cases where the center has an interest, those cases will continue to be decided the way the center wants them to be decided.”
Lack of clarity on the application of laws and regulations has left foreign companies vulnerable as they seek to tap the opportunities offered by China’s economic expansion. Among those surprised with investigations recently are Microsoft Corp. and Qualcomm Inc. At the individual level, being allied to the wrong senior official leaves a cadre in danger of being seized and held without recourse through a party-discipline system called shuanggui, which has its roots as early as 1927 and isn’t subject to checks by the law.
Under Xi’s anti-corruption drive, more than 480 officials have been ensnared. Leading the investigation is the Central Commission for Discipline Inspection, a party watchdog veiled in secrecy that only last year started its official website and a tipsters hotline. It is able to detain indefinitely and investigate any of China’s roughly 87 million Communist Party members.
This so-called shuanggui system is unlikely to disappear under Xi, according to Randy Peerenboom, professor of law at La Trobe University in Melbourne. “If anything, if you’re having an anti-corruption campaign, you’re going to rely on shuanggui more not less.”
Zhou’s case could encourage reform by excluding illegally obtained evidence, including through shuanggui, said Jerome Cohen, a professor of law at New York University. The practice could then “be emulated in ordinary, non-political criminal trials where courts are often freer to deal with cases,” said Cohen, who specializes in the Chinese legal system.
Hopes for legal reform in China were raised at the last meeting of the party’s Central Committee in November, known as the third plenum, which concluded with Xi and party leaders emphasizing the rule of law, respect for the constitution and judicial independence. It called for more centralized management of the judiciary in terms of funding and appointments.
The statement followed the replacement of the head of the Supreme People’s Court with someone who has legal training. In March 2013, Zhou Qiang, who studied law at university and worked for more than a decade at the Ministry of Justice, replaced Wang Shengjun, who had no formal legal education. Zhou Qiang is unrelated to Zhou Yongkang.
The Communist Party group of the Supreme Court on July 30 said that every court in China should listen to the orders of Xi’s Central Committee and that the investigation of Zhou fully embodies the committee’s “determination to punish corruption,” according to a notice on the court’s website.
The party holds six plenums in each five-year session of the National Congress, and the fourth -- which will be held in October -- is usually a routine meeting to discuss ideology. This is the first time it will focus on legal reform, according to Jiang Ping, a professor at the China University of Politics and Law in Beijing.
One sign of a shift toward giving courts greater independence would be if Zhou is allowed the chance to mount a proper defense, observers said.
“If the trial is broadcast publicly, if he is allowed to give himself a true defense, that would be a real breakthrough,” said Scott Harold, an analyst in Washington with Rand Corp, a policy institute based in Santa Monica, California. “A really meaningful step is allowing someone who everyone believes is guilty,” like Zhou, mount a credible defense, he said.
Zhou isn’t unfamiliar with the court system. He used to oversee it.
After becoming secretary of the party’s Central Politics and Law Commission in 2007, Zhou controlled China’s police and courts and the domestic security apparatus that in 2011 took more of the government’s money than the military. Following Xi’s ascent to power in 2012, the party’s top Politburo Standing Committee no longer included the head of the commission, signaling a downgrade of influence and power.
Speculation spread after Xi took the helm that Zhou would be investigated. Within a month of the new secretary general’s appointment, a senior official in southwest Sichuan province, where Zhou once served as party secretary, was reported to be under investigation for graft. Investigators soon moved on to snare Zhou’s associates in the energy business and the Ministry of Public Security. Last week, his son Zhou Bin was also formally arrested, Beijing-based Caijing magazine reported.
Under Xi there has also been a broad-based crackdown on civil society and people who challenge the party. In January Xu Zhiyong, a civil-rights campaigner who had brought together a loose movement of activists seeking to battle corruption, was sentenced to four years in jail on charges of gathering a crowd to disturb public order. In June, three other activists connected to Xu were handed prison sentences.
“Given that all his claims to support the rule of law tend to encourage even more arbitrary CCP actions to harass human-rights defenders and others who support genuine reform, I am not optimistic about the current agenda,” said Michael Davis, a law professor at the University of Hong Kong.
China ranked 92nd out of 99 countries for constraints on government powers in the World Justice Project’s 2014 Rule of Law Index. The country is governed both through its constitution, which details the administrative power of the government, and the Communist Party Charter, which enshrines political power.
The charter was the tool used to probe Zhou for discipline violations, according to the official announcement on July 29. Any defense he could mount depends on whether the party chooses a public trial, as it did for Bo.
“I expect there will be an open trial because expectations have been raised after 18 months of gossip and rumor,” said Joseph Cheng, a political science professor at the City University of Hong Kong. “But it will be like the Bo Xilai trial. No political issues, they’ll stick to the corruption allegations.”
Following a five-day trial, Bo -- the charismatic, populist former party boss of the Chongqing metropolis -- was sentenced to life in prison on charges of bribery, embezzlement and abuse of power by a court in the eastern city of Jinan in September. The court said his assets would be seized.
In the lead-up to the announcement of the investigation into Zhou, the party allowed details of his family and its business dealings to appear in the state-controlled media, without any comment from Zhou.
“If the Chinese Communist Party’s top leadership was committed to genuinely building the rule of law, then I think you would not have seen Zhou Yongkang smeared in a quiet rumor campaign,” said Harold at Rand Corp. “Are we going to move to a system that looks like a genuine rule-of-law system? Pardon me if I don’t hold my breath.”
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