Gu Kailai's Ironic Last Take on the US Legal System

I'm not sure many people here follow Chinese politics, but the biggest scandal by far since 1989 occurred earlier this year when a city police chief suddenly showed up at a US consulate, allegedly seeking asylum after revealing information of a cover-up by his Communist Party boss, a man name Bo Xilai. Bo Xilai is what is known as a "princeling", the son of one of modern China's founding fathers so to speak, i.e. a top member of the Communist Party back in the day. As such, this almost automatically made Bo a person of great political importance, and until this scandal broke he was expected to be join the ranks of China's most important political body, the Politburo Standing Committee. His fall is a huge scandal for the Communist Party for reasons I don't really care to get into, but the events that led to this scandal were quite interesting, and involves his wife, Gu Kailai.

According to the asylum-seeking police chief, Gu was involved in some sketchy business dealings that involved transactions through a British businessman, Neil Heywood. When something went wrong with these dealings, Gu and Heywood had a falling out. Then one day Mr. Heywood showed up dead in a Chinese hotel room under suspicious circumstances. The police chief claimed the man had been poisoned, which seemed especially likely after odd "official" reports came out that he died of alcohol poisoning, except all those who knew him knew he was also a teetotaler.

Now things were getting messy because the British Government started demanding to know what happened to one of its citizens, rightly so of course. China needed a scapegoat, and whether she was guilty or not (most likely is, but ask for transparency and they hold up mirrors over here), Gu found herself arrested in April, and formally charged with murder on July 29. And talk about efficiency, the trial just ended, but the verdict might not be known for a long time. If she is found guilty, she would almost certainly be put to death. Her husband's fate is still mystery, and no one really knows how much he was involved yet, but that investigation is far more delicate, as any corruption found in his past is likely to reach to others in the highest echelons of the Chinese government.

So what does this have to do with the US legal system? Well, Gu Kailai is a lawyer, and apparently had spent quite a bit of time abroad. Enough so that she believed herself to have a keen understanding of US law--keen enough to write a book about it called Winning a Lawsuit in the US. I would now like to share Gu Kailai's possibly last and certainly most ironic take on US law, and particularly how it compares to China, taken from a series of book excerpts reprinted in this NY Times article:

Gu Kailai wrote:

China practices law in a different way than America; we don’t play with words. We have a principle called “based on the facts.” You will be arrested, sentenced and executed as long as we know you killed someone.

I sure hope you're right, Ms. Gu.

We should have expected that American laws were gangster laws.

Pfft. It's pronounced 'gangsta law.' She also doesn't understand that in a U.S. court, you can invoke gangsta law in only a very narrow range of circumstances. Like when you got a 40 in your briefcase. Or when you're pointing your nine at the judge with it tilted to one side.

I really like our common law system. Frankly anyone outside of the US, Australia, Canada, or the UK will be baffled by it-judges "making law." The entire rest of the world is equally baffled by our federalized system. Some Mediteranian (France, Italy) have systems of justice very different from commonwealth nations. The accused in France has the burden of proving his own innocence, a presumption of guilt in fact. What many of us will better recognize is a principle that an accused is innocent until his prosecution shows him guilty.

Now in the US we have a fun added wrinkle of Federalism. There are 51 high courts, 51 supreme laws, and all of that must fit under 1 umbrella(The Constitution). Even the US congress is not above the constitution, and changing it is incredibly difficult. It is the highest legislative standard in the world, I believe. 75 percent of all members of both the House and Senate must agree to pass the new constitutional amendment. Also, 75 Percent of the states must have constitutional conventions to pass it as well.

Now I could take a low blow and mention our value on freedom of speech, pondering her fate should she say any ill of the Chinese System in a large publication. But that has no place here.

No system created by and maintained by mortal men and women can ever be perfect. Innocent people will be jailed, arrested, sadly executed (my anti death penalty stance in a nutshell). Guilty people will be exonerated, found not guilty, get early parole. It is inelegant, sloppy, cumbersome, time consuming, costly. It is evolutionary and unchanging all at once. And I think it is a brilliant system of justice.

I just listened to a segment on NPR yesterday where they were talking about her trial and how the Chinese legal system differed from the US legal system. Their summary was that if you're arrested in China you're going to be convicted because they generally don't arrest anyone unless they know they're guilty. Well that seems... tidy. Oh, and scary.

Kehama wrote:

Their summary was that if you're arrested in China you're going to be convicted because they generally don't arrest anyone unless they know they're guilty. Well that seems... tidy. Oh, and scary.

According to state media, she has confessed to the killing, claiming she had a mental breakdown. Not sure if that qualifies as an insanity plea, but I'm pretty sure China has no problem executing the insane. If she gets anything other than death it's entirely because of her political position.

Regarding the NPR story, the arrested therefore you must be guilty thing is also true in Japan, so I suspect it has more to do with face saving than with authoritarianism. That said, yes China's got a woefully weak legal system that only gets worse the farther you are from Beijing.

You don't think she's simply leverage against her husband and his cabal?

I forgot to mention that the state media report should, of course, be taken with a grain of salt. Having Gu confess makes the trial far easier to manage with the public than if the court had to find her guilty. Not that the public will believe it anyway, but when there's only one official source of news, the next best thing is the rumors floating around Sina Weibo (Chinese Twitter), which are really no better.

Robear,

I don't think that is likely for a few reasons.

1. As I think you're aware, there are two major factions within the Chinese government--the hardline Communists, which Bo Xilai belonged to, and the moderate reformers, which include President Hu Jintao, Premier Wen Jiabao, and incoming President Xi Jinping. The struggle is entirely an internal one, and one that they go to great lengths to keep out of the public eye, as the Party still rules through consensus. To explit a crime in which a foreigner was involved for political gain, especially one so dramatic, would attract way too much attention to this internal conflict.

2. Corruption and wealth are very sensitive subjects in China right now, and are the cause of a lot of social unrest in China--that's why corruption is often punished with the death penalty. This senstivity is compounded by the fact that stories have trickled out since Bo's downfall about corruption extending to the very highest levels of the government. A recent Bloomberg story examined Bo's family's wealth, which resulted in Bloomberg.com being blocked in China. FT.com also ran stories on the wealth of the political elite, looking at how hard the leaders try to distance themselves from their own family members, who have become hugely wealthy by exploiting their political relatives. This connection between political power and immense wealth, which allowed China's 70 wealthiest delegates to earn more than the entire net worth of all 660 top officials in the US government in 2011, cuts across internal Party lines, which leads me to believe that one faction would not be dumb enough to try to gain an edge over the other by using one crime to expose another crime both are deeply involved in.

3. This is a year of political transition in China, and they definitely want it to be a stable transition. The only previous stable transition of power was 10 years ago. Not a good time to have this kind of trouble. The reformists already have the presidency locked up for the next 10 years, why put that in jeopardy by stirring up trouble now?

4. Communist hardliners still have a lot of support, especially the farther you get from Beijing. For the moderates to use Gu Kailai like this would have been incredibly risky.

Hmmm. Interesting reasoning. Thank you for laying it out like that. I didn't know the old schoolers still had that much power.

KingGorilla wrote:

I really like our common law system. Frankly anyone outside of the US, Australia, Canada, or the UK will be baffled by it-judges "making law." The entire rest of the world is equally baffled by our federalized system. Some Mediteranian (France, Italy) have systems of justice very different from commonwealth nations. The accused in France has the burden of proving his own innocence, a presumption of guilt in fact. What many of us will better recognize is a principle that an accused is innocent until his prosecution shows him guilty.

I am not sure if you knew this or not by the way your comment is phrased but both Canada and Australia are federations as well. Though we prefer the term federal constitutional monarchies.

It is my understanding that the Canadian and Australian confederacies do not have the individual provinces or states on equal footing with the larger or commonwealth governments, of their rules of law. In many areas in the US the states have superior rights to that of the federal government, education and transit for example.

In Canada all government powers are divided between the federal government and the provincial governments. Each is supreme in their own domain.

The provinces were given everything that the framers felt should be local in nature, and the federal government given things that they felt deserved a national scope. Some examples:

Criminal Law: Federal
Private Law(Contract, Tort, etc): Provincial
Banking and Commerce: Federal
Armed Forces: Federal
Post Office: Federal
Hospitals: Provincial
Administration of Justice(Courts, Lawyers, etc) Provincial
Appoint Judges: Federal
Property and Civil Rights: Provincial

In addition the federal government was given a residuary clause which allows it to take any subject not given to the provinces. So for example radio and aeronautics were given to the federal government once they were invented.

So while the federal government has more powers they are unable to touch anything given to the provinces. For example if the federal government makes a treaty that requires changing property laws, it will have no force or effect unless a province voluntarily enacts complying laws.

This has caused big problems in the past because for example unemployment insurance was found to fall under property and civil rights and when the federal government tried to enact it it was thrown out. We eventually had to amend our constitution to give it to the federal government specifically.

Bottom Line: It is a fundamental part of our constitution that provinces are equal in all respects within their spheres of power. This is so strongly protected because of Quebec. They have a different system of laws than the rest of the Country and when the dominion was created they refused to join unless the provinces had significant power.

So... That was a little rambley but I hope it was interesting.