Truman National Security Project

The Court of No Opinion

Bo_Xilai_Trial_01
By David Wertime | 8.30.13
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For five drama-filled days in August, the provincial capital of Jinan hosted the trial of fallen Chongqing Party boss and political heavyweight Bo Xilai. A former member of the Politburo, China’s elite decision-making body, Bo was purged in early 2012 after his right-hand man Wang Lijun fled to the U.S. consulate in Chengdu, bearing evidence that Bo’s wife had murdered a British businessman. The trial for bribery, corruption, and abuse of power, which ended on Aug. 26, riveted observers, and not just because Bo’s downfall exposed cracks in the Communist Party’s unified façade. Bo’s charisma and swagger were unique among China’s high-level politicians, although few expected that swagger to be on display in the tightly controlled environment of a Chinese courtroom. When details of the trial began to emerge in near-real time on the popular microblogging site Sina Weibo, commentators were stunned to learn that Bo had stayed true to form, cross-examining witnesses and even denying some of the allegations against him.

Online — where much of modern China’s political discourse now resides — the star of the trial was the Jinan Intermediate People’s Court, whichburst onto Weibo on Aug. 18 with these staid but potent words: “Announcement: At 8:30 in the morning on August 22, 2013, the Jinan Intermediate People’s Court will hear the case of defendant Bo Xilai for bribery, corruption, and abuse of power. So announced.”

Following its debut broadcast, the court behaved like many of China’s60,000-plus government-run microblogs. It posted self-congratulatory status updates (“the Jinan Intermediate People’s Court ceaselessly deepens its case research and strengthens its case guidance work”), explanations of the number and types of cases the court hears, and, the evening before the Bo trial, a nugget from Warring State-era philosopher Han Feizi, reminding readers that, at 2,000 years’ remove, even da chen, or imperial ministers, are subject to criminal punishment. Along the way, the court’s Weibo account racked up hundreds of thousands of followers eager to catch even the most oblique glimpse into the courtroom.

The Jinan Court, which was one of the most comprehensive sources of information about the trial, ultimately produced dozens of posts during those five days, many of which contained courtroom photographs and trial transcripts. A worthy debate ensued both inside and outside of China over whether these communications represented a laudable step forward in transparency, a cynical official effort to co-opt the narrative, or something else.  

While China’s courts are famously opaque, the last few years have seen a remarkable rise in defense lawyers opening a window to the courtroom, microblogging the details of ongoing cases. This in-court microblogging looked like it might have the power to increase the transparency of China’s legal system, which operates in deference to Party interests and faces a serious trust deficit. Playing to the court of public opinion occasionally had benefits. In a January 2012 case in the southern province of Guizhou, the judge decreased the defendant’s sentence by four years after his defense teampublicized legal inconsistencies.

But in the summer of 2012, defense lawyers appealing Chongqing businessman Li Qinghong’s 15-year sentence for involvement in organized crime used live-blogging court proceedings to counterweight the mainstream media’s jaundiced depictions of their client. During Li’s 47-day appeal, his defense lawyers published more than 1,000 posts, covering details as granular as typographical errors in the indictment and the relative loudness of the prosecution to defense microphones. (Li’s conviction by a lower court was ultimately upheld.)

The ability to live-microblog a trial was never going to substitute for the robust protections, both in law and in practice, necessary for any high-profile defendant to get a fair trial. Nonetheless, in the hands of a brave and savvy defense lawyer, new media provided an occasional bulwark against the worst procedural abuses.

But the Li Qinghong case, and the widespread attention it generated online, was evidently too much for Chinese authorities. Several months after the March 2012 passage of revisions to China’s Criminal Procedure Law, the Supreme People’s Court, China’s top court, issued a detailed judicial interpretation of those rules. This interpretation, which took effect Jan. 1, 2013, banned “participants and observers” from using recording devices, cameras, or cell phones in court, or “broadcasting the situation inside the courtroom via email, blogs, microblogs, or other means.”

That sounds fair enough, but it’s not applied evenly; the Criminal Procedure Law’s definition of “participant and observers” does not include police, prosecutors, or judges. In effect, the new Supreme Court rules constitute a limited gag order aimed at Internet-savvy defense lawyers and their clients.

Lawyers were keen to the implications of this rule as soon as its draft was made available for public comment. Rights attorney Cui Jia’nan wrote on Sina Weibo in August 2012 that “The Supreme Court’s interpretation illegally deprives citizens of the right to supervise open trials. It makes open trials secret and protects under-the-table dealing.”

The Bo trial is a perfect example of what Cui meant: at once open and secret. While Bo’s words indeed thunder on the transcript, they were channeled within the four corners of the Jinan court’s microblog. And notably, his chosen defense lawyers not only were barred from the courtroom, but made not a peep in cyberspace during the trial. While Bo’s outspokenness shone through, readers were left to speculate what might have been omitted, airbrushed, or changed.

It is impossible to infer a trend from a single incident. Bo’s trial may signal a move toward greater transparency in Chinese courts. If so, it will be because the Communist Party prefers it, not because criminal procedure compels it. Sanguine observers would do well to remember that this riveting act in the dramatic downfall of Bo was narrated by the Jinan court’s Weibo, a chorus of one.

David Wertime is a Truman Security Fellow. This article originally appeared in Foreign Policy.