Sunday, December 08, 2013

Part XXX (30) Zhiwei Tong (童之伟) Series: "The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance"

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Series continues.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao, Bo Wang, and Zhichao Yi for their able work in translating these essays.

For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXX) we translate (via Bo Wang):
-->The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance (Sept. 22, 2013).

(Michael Sheridan, Defiant Bo Xilai rattles party at show trial, The Australian, Aug. 25, 2013; caption: "Fallen political star Bo Xilai listens to testimony during his corruption trial in Jinan. Picture: AP Source: AP"; "Bo has recanted every admission he made before the trial, citing heavy pressure under interrogation. His lawyer has said that statements extracted, like his, under the Communist party's internal disciplinary system are not supposed to be used in court. More significantly, independent Chinese lawyers and analysts have started to pick gaping holes in aspects of the prosecution case which propaganda chiefs have been at a loss to explain.")

The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations------My Thoughts On the Written Judgment of Bo Xilai’s First Instance
Tong Zhiwei 09-22-2013

Jinan Intermediate People’s Court today has announced penalty on Bo Xilai’s offence of bribery, corruption, and misfeasance. Cumulative punishment has determined his life imprisonment, deprivation of political right and confiscation of all personal property. I actually had predicted this sentence and my general perception thinks this is reasonable in line with facts and laws.

On the other hand, I have to say that the Court is very magnanimous to Bo Xilai. Bo had plea of not guilty, but the Court didn’t give him a heavier punishment on this. The amount of bribes by Wen Qiang was much smaller than Bo. However, when Bo was in power in Chongqing, Wen Qiang was sentenced to death penalty and it was an immediate execution. Compared to Wen Qiang’s case, the Court is actually very impartial based on law regulations.

The fact of Bo’s corruption is out there. Bo can never deny the evidence that he got bribed and I don’t need to add more words on this. Nonetheless, I have some thoughts on how the Court affirm Bo’s offence of corruptions and power abuse.

What Bo claimed in the Court that he hadn’t knew anything about monetary bribery is totally bullshit. His bribery is same with typical bribery model in China. He provided convenience to businessmen and took advantages of policy, while his wife and son take the bribed money. Many officials’ “wallets” are continually supported by this means. It is normal and possible that Bo hasn’t known details about how the money goes. However he could never deny fact that his wife and son took pecuniary benefit from Xu Ming (a tycoon in Dalian) which is impossible and not trustable. He admitted that Xu Ming was nice to his son in the Court. If a professor shows concern and attention to students’ coursework, it is natural and understandable. But in what means can a businessman benefit his son? In addition to spend money, what else can he or she do? At least, in a way of logical thinking economic benefit transfer is the prominent way, while the others are secondary.

Bo could defend that the preferential policy by him was exercise of official powers. But among all the businessmen, who to support and why should be reexamined and investigated more carefully. Personal relationship is one of the major concerns and considerations. The relationship between politics and commerce is very tricky today. The local governors can actually control the success and failure of a business. For this circumstance, Bo knows much better than our internet users. Although Bo has huge ambition in politics, the process has revealed that he didn’t break away from corruption of politics and commerce. Further, he got involved into corruption voluntarily. The key evidence is that Bo allowed his wife and son to develop intimate personal relationship with Xu Ming. If Bo was really upright enough with integrity, he should stop their relationship going further or monitor the relationship closely on the details, especially on the monetary relationship. But he did not do anything about this.

From another perspective, Bo’s son got economic benefit at least hundreds of thousands of Yuan, even millions Yuan a year. If his son doesn’t tell Bo in exact amount, at least a rough number, his son is thought to be lacking of family education and gratitude. One tradition in Chinese family educations is to teach children to have gratitude to people who helped them and tell their parents in order to do favor in return to help providers. I believe Bo’s family tradition should endorse this for sure. Unfortunately, Bo denied this completely in the Court. If Bo’ son didn’t mention anything about Xu Ming’s economic benefit for him, I could be speechless about Bo’s family tradition.

In the process of investigation and prosecution of Bo’s case, the judiciary is always very courteous to Bo. About rumors we may not say anything, but there is definitely some transfer of economic benefit on the accusation “womanizing or intimacy with several women”. No corrupted official can maintain intimacy or womanizing without paying any economic cost. It has never happened before. Could Bo be an exception in the intimate relationships? I think it is impossible. If Bo could do this without paying or just paying with his own wage, this could be a myth. No one would trust this myth. Sexual bribery is difficult to be monetized and incriminated, and no one challenge this tradition. But what I’m saying here is the sexual service Bo has consumed with real money rather than sexual bribery. If someone has paid this for Bo, this should be counted as Bo’s bribed money.

As for power abuse, the Procuratorate and Court have already restricted it to limited area, which is actually very small. Gu kailai (Bo Xilai’s wife)’s illegal offenses were consequences of Bo’s connivance. Gu Kailai was representative of municipal party secretary in Chongqing. She ordered the public security officers to search deputy mayor and police chief’s offices, and offended murdering crime, which led to serious consequences. Bo should hold responsibility directly, and this is of criminal nature. Decades ago, Jiang Qing (Mao Zedong’s wife)’s did a lot of lawlessness, but Jiang was a member of the political bureau and enjoyed to a large degree authorized political power. Gu Kailai didn’t have any formal official capacity, but the extent of its abuses exceeded ten times of Jiang Qing’s. If Bo assumes power of China, just looking at his wife as his was conniving, the horrific consequence might exceed several times of Cultural Revolution, which made me feel chilly.

For so serious criminal issues, I’m very sure that he is very clear about this. His plea of not guilty is based on two major considerations: 1. The Court won’t sentence him to death penalty with immediate execution; no matter how heavy the judgment is made, it is nothing more than a few years in prison and then medical parole. 2. As long as he pleads not guilty, the leftist forces will treat him a “national hero” and spiritual leader and he is a flagship for the leftists. He would think if this situation gets kept and develops, he one day may be able to do dumping tray in politics.

Therefore, based on the two considerations above, coupled with no additional punishment for appeal, Bo is sure to appeal and his plea of not guilty will go further. Of course, I think it is his right to appeal and this should be protected effectively. If Bo could propose new facts or evidences in the second instance to deny the crime of his first instance, I will be happy to see it. However, it appears very difficult for him to achieve this.

童之伟 2013-09-22











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