China's official news agency announced yesterday that Gu Kailai (it calls her Bogu Kailai, but that's another story), the wife of ousted Chongqing Party secretary Bo Xilai, had been formally charged with murder by the Hefei Municipal Procuratorate in Anhui Province and would face trial in the Hefei Intermediate People's Court. Wait a minute. Hefei?
To the best of my knowledge, neither the accused nor the victim – in fact, nothing about the case – is remotely connected with Hefei. But of course, that is very likely the reason the government has decided to try the case there. There is a long tradition of trying cases involving high-level officials outside their power base – one source estimates this happens 90 percent of the time – because of fears they can use their local influence to influence the result. Indeed, that courts are vulnerable to this kind of pressure is readily admitted even in the most orthodox sources.
No doubt, then, this practice makes sense. But is it legal?
One article quotes Wang Jixue, a current-affairs commentator, as saying that the practice has a legal basis in Article 26 of the Criminal Procedure Law, and that the provision there reflects the legislators' profound grasp of Chinese realities. But let's see what the law actually says.
The basic rule of jurisdiction is set forth in Article 24: "A criminal case shall be under the jurisdiction of the people's court in the place where the crime was committed. If it is more appropriate for the case to be tried by the people's court in the place where the defendant resides, then that court may have jurisdiction over the case." We are therefore talking about either Chongqing (the place of the murder) or wherever Gu Kailai resides – maybe Chongqing, maybe by a long stretch even Beijing if that's where she has been as a state guest for the last few months, but in any case likely not Hefei.
What level of court should hear the case? That question is answered by Article 20: cases involving a potential life or death sentence shall be heard in the first instance by an intermediate-level court (even higher if the case is of province-wide or nation-wide significance). No problem there: the Hefei Intermediate Court is hearing the case.
Note that Article 24 presents some choices about location, and somebody has to decide how widely significant the case is in order to decide the appropriate level of the first-instance trial. What happens if people don't agree? No problem: Article 25 says: "When two or more people's courts at the same level have jurisdiction over a case, it shall be tried by the people's court that first accepted it. When necessary the case may be transferred for trial to the people's court in the principal place where the crime was committed." And if there is still disagreement, the final decision is assigned by Article 26 to the highest court that chooses to get involved in the matter: "A people's court at a higher level may instruct a people's court at a lower level to try a case over which jurisdiction is unclear and may also instruct a people's court at a lower level to transfer the case to another people's court for trial."
Does Article 26 explain why Gu Kailai is being charged and tried in Hefei, then? No.
First, there is no relevant issue of unclear jurisdiction here. There is nothing to suggest that any court other than an intermediate court in Chongqing should be hearing this case. But what about the second half of the sentence, which seems to give a superior court (in this case, it would have to be the Supreme People's Court) unfettered discretion to transfer any case from any inferior court to any other inferior court? That can't be the explanation, because this case hasn't been transferred to the Hefei court. That's where it started in the Hefei court.
The decision to have the trial in Hefei simply cannot be accounted for under the current rules of the Chinese legal system. There is no legal institution that could have made that decision. Instead, an extra-legal decision was made (I use the passive voice deliberately here) that this is how the matter would be handled, and that decision was then transmitted to all relevant actors in the legal system.
There is nothing inherently unjust about trying officials away from their home base, and the government could at any time amend the law to provide a way for these decisions to be made within the legal system. What's interesting is that nobody important has apparently ever thought it necessary or worth while to bring the law into line with the practice.
The author is a professor of law at George Washington
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