Wednesday, August 28, 2013

Mature vs immature societies: on the trial of Bo Xilai

The biggest news in China in August 2013 is the trial of Bo Xilai (BX) in Jinan, Shangdong.  BX had been a major of Dalian, governor of Liaoning Province, Minister of Commerce, and lastly chief of Chongqing before being arrested in 2012.  While his fall is widely viewed to be more political in nature than anything else, it is sensible to focus on the charges on hand and prudent to ignore all other rumors, many frankly too outlandish to believe, like the one that BX was responsible for a plane crash.  

Most people actually ask this after the 5-day trial: Is that it?  After one year and a half worth of investigation and hundreds of manpower, this is what the prosecution got?  One has to wonder, if the same evidence was presented in other countries, like in the US, what would happen?

The court considers three charges against BX: bribery, embezzlement, and abuse of power.  BX mounted a strong defense against all three.  What we know about the trial comes largely from the court transcript.  The transcript is incomplete and contains a few errors, but it paints an indisputably faithful picture of what happened inside the court room.  We now know more beyond the transcript based on “leaks” form people actually attending the trial, but the overall impression remains.

The bribery charge rests in two parts.  First is 唐肖林 (TX) giving a total $140K worth of money to BX from 2002 and 2005.   The evidence came from testimonies from TX and BX’s wife, 谷开来 (GK).  BX also confessed about this but recanted by claiming he was pressured into false confession.  TX and GK did not attend the trial and provided testimonies on paper and video only.  TX said giving the money to BX three times. GK said that she took out the money from the safe of their family for her or their son’s use. 

BX denied getting such money from TX.  He and TX had known each other way back, and so when TX worked for a company or companies owned by the governments at the time, helping TX was legit from BX’s standpoint, but he never asked for nor received any money.  GK’s testimony about taking out the correct amount of money each time TX gave BX the money was simply unbelievable.  GK was a rich lawyer with perhaps 40 million RMB herself.  How could she remember to take out just what TX gave BX each time?  How can you be certain it was not her own money?

--------In essence, it was BX’s words vs TX’s words and to a less extent GK’s words.  No other, hard evidence.  Whom would you believe?  TX and GK are in their own legal troubles, so testifying against BX might be a way out for themselves.

The second bribery part is centered upon 徐明(XM), head of a large, private company based in Liaoning.  It is more complicated but interconnected.  The most eye-catching item is that XM bought a 2.3 million euro home in France (or used his company’s money as collaterals) in 2001 for GK and her son’s studies abroad.  The prosecutor claimed that BX helped XM’s company in various business deals, although it was no apparent impropriety, and none emphasized.  Instead, the prosecution pointed out how XM paid for the expenses, and how BX knew about it, from testimonies from XM in person and GK in video.

BX claimed he never knew about the house and any dealings.  He had only vague memory when he once came home and saw GK and XM watching a powerpoint presentation of the house, and BX offered little or no comment at the time.  The only other time XM could tie BX to the house was when XM went to see BX in Beijing in 2004 and BX thanked him.  But BX claimed not to remember this episode.  In any case, XM admitted BX never said anything directly about the house or money any time, under cross examination by BX, which was a highlight of the trial.

But BX still had to face GK, who said telling him about the house and about XM paying for son’s other expenses.  GK didn’t attend the trial, so no cross-examination.  BX countered that GK spent most of her time overseas after 2000, and he was busy.  So they didn’t spend much time together, and GK wouldn’t have talked about such trial stuff when they met.  BX said he never knew or used the house or money, that he has an elder son who also studied abroad without accident, that he thought GK was rich, and that GK never complained to him about money shortage.   GK was obviously in a lot of trouble then and now, so can you trust her video testimony?

------In essence, it is still BX’s words vs GK’s words, and to a much less extent, XM’s words.  XM is a close friend of GK’s rather than BX’s. 

The second, embezzlement or corruption charge is about the 5 million RMB of government money 王正(WZ) allegedly gave to BX in 2002.  WZ testified in court that he met BX twice to try to give him the money, BX rejected it the first time, but agreed to let WZ talk to GK the second time.  Then GK arranged to transfer the money.    

BX admitted letting GK and WZ talk in a prior confession, but renounced it during the trial because he claimed he was pressured.  BX said he had forgot the 5 million RMB until investigators asked about it in 2012 and that because a few other people knew it was government money, it was highly unusual anyway for him to try to pocket it.  BX said he remembered the second meeting with WZ was not what WZ described, at least not his own intention, and he didn’t know or ask anything about the money afterwards.  GK said that BX didn’t say what to do with the money when BX asked her to talk to WZ, but as a couple she knew what he meant.

BX pointed out WZ was under investigation himself, so he might have just tried to implicate BX to get off easier.  BX said WZ’s testimonies contained many contradictions, and that he knew how money goes in the official channel, so it was impossible for him to suggest otherwise.  The prosecution countered that BX didn’t denied he and WZ met twice, only the interpretations by him and WZ differed. 

-------- This may actually be the most serious or credible charge, but then again, there are holes.  BX and WZ met twice in 2002, then BX never mentioned the money afterwards.

The third charge is abuse of power.  In short, GK supposedly murdered a Briton named Neil Heywood (NH) in 11/13/11 and asked 王立(WL), the police chief of Chongqing, to cover it up, on 11/14/11.  WL somehow told BX on 1/28/12.  BX went home to ask GK, who denied it.  Then BX berated WL and slapped him in the face on 1/29/12.  BX also relived WL of his police chief position, investigated other police members, which prompted WL to escape to the US consulate on 2/6/12.  This started the whole thing and BX’s downfall.  Prosecution charged that BX blocked murder investigation, wrongly removed WL, leading to his defection.

It should be noted that there is neither evidence nor charge then and now BX knew about the murder before 1/28/12, or believed it on 1/29/12.  The prosecutor alleged that the slapping was intended to block further investigation, but there can be many explanations, e.g., why did WL lie about GK and the murder, why didn’t WL tell him earlier, etc.  One assumes that WL had had enough evidence on 1/28/12 already.

BX admitted mistakes, but he famously opined in court: it is not easy to produce a traitor by one slap.

While this charge is the most dramatic, and BX didn’t contest as many facts as in other two charges (he did contest some interpretations of the events), this charge may be the least serious.

Instead, since 2012, the public is the most interested in the relationship between BX, GK, and WL. 

NH was involved in GK and XM’s French house’s dealing (perhaps in others as well, but we have no official acknowledgement).  NH had a fallout with GK, and GK asked WL for help.  We didn’t know what WL said to GK, but it was apparently WL who made NH come to Chongqing in November 2011.  Killing somebody was a major task, but GK didn’t tell BX at all.  Is it because GK wanted to leave BX out of it, or because GK trusted WL more than BX?  We don’t know, but if GK didn’t tell BX everything, how much did she always tell BX about her accepting money from XM and WZ?  If GK intended to kill NH and did it, what was her mental state?  How much can her words be trusted?

According to BX’s words and other reports, GK has illness with poison and has been mentally unstable for some time.  WL and GK know each other longer and are closer friends even though BX was WL’s superior.  BX even stated that WL had a romantic feeling for GK.  So slapping might be personal as well. 

Salacious details aside, how should the court judge?  More importantly, how should an objective entity judge?  BX admitted making mistakes, both at home and at work, but were they crimes as the prosecution argued?

The third charge is the least controversial but also the least important.  And it is hard to say how much BX dealing with WL really led to subsequent events.  It also depends on what slapping WL meant. 

The bribery and embezzlement charges are mostly he said, he said, and she said.  Legally, the prosecution doesn’t need to prove BX acted properly or improperly in help others’ business, only that BX got money (for whatever reason) either before or after.  BX’s family receiving money also counts, but here is the disconnection: what if the family received money but BX didn’t know about it?  GK said BX knew, BX said no.  Because of GK’s mental issue and legal troubles, is she believable?   The prosecution produced a lot of payment receipts to show the movement of money, but they invariably stopped at GK, not directly to BX.  In BX’s own words: what does all this have to do with me?

A question of longer lasting significance is, is there a better way, or what is the best way, to judge such things?  What would happen if in a different, say US court?  This comes down to a difference between mature vs immature societies.

The US society is more mature than China in the sense that domestically rules are more clearly stated and better followed. 

BX wouldn’t be in a position to dismiss WL like that in the US.  For covering up a crime, WL would have been in a lot of trouble already.

And there would been plenty of early, conflict of interest flags regarding BX’s dealings with TX, XM, and even GK.  People tend to think one gave to GK only to please BX, forgetting that GK was quite influential herself.

But if limited to the trial, perhaps the US prosecutors won’t even press charges if this is all they have.  The Chinese prosecution produced a lot of paper trail that seemed irrelevant.  What we need is things like wire-tapping, as in the Rod Blagojevich corruption case.

That GK could testify against BX but was not cross-examined in court is utterly unfair.  GK’s testimony is essentially the only thing tying BX to the money, and her mental stability had been questioned before and is being questioned more now.  Pitting a wife against the husband is highly unusual already, and not letting the defense to question her is even more wrong.

Lastly, regarding the Chinese bribery law.  It is not necessarily bad, but is it too broad and easy to abuse?  Corrupt officials could spread wealth among family members, so the law aims to prevent that.  Yet what if the official really doesn’t know?  Convicting someone in a criminal case needs beyond reasonable doubt.  Are words of a family member sufficient? 

What happens if we apply the same criteria broadly?

Say you are an official and help a guy in an entirely proper way.  Then 5 years later, he knows your wife needs $10K and give the money to her.  You have never asked for anything from him, may be in a different position or are retired now, and your wife doesn’t tell you.  But under the Chinese law you can be charged with bribery, when the guy now tries to rat some big fish to save himself, and your wife is divorcing you.  I don’t know how many officials in China can avoid this pitfall now or later.  This is why after the trial, a lot of people actually think BX is not bad, at least not as corrupt as many others. 

In a twisted sense of reality, one does it all the time, legally, e.g., in the US.  By free speech protection, this guy can donate to your (re-)election campaigns in practically unlimited amounts himself or as PAC.   He can arrange for your speaking tour after you retire, where you are paid for $200K per.  Or you can lobby your old colleague officials, serve on the board of a company, be a CEO, etc.

TX and XM, or most convicted Chinese businessmen, wouldn’t have been in any trouble if they had ever had this option.

And nobody calls it legalized corruption for nothing.

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