Posted by Joel Martinsen on Tuesday, December 9, 2008 at 12:45 PM
Law and order
Yesterday's Beijing Youth Daily reported that four police from Taiyuan, Shanxi Province, came to Beijing on December 4 to arrest a CCTV reporter for accepting bribes. The reporter, identified only by the surname Li, had been investigating allegations of abuse of power on the part of a district prosecutor's office in Taiyuan, the same office that dispatched the police to arrest her.
Here's the meat of the case, as reported by the Shanghai Daily (based on the Beijing Youth Daily article):
The case has echoes of an incident in January of this year in which the party secretary of Xining, Liaoning Province, sent police officers to Beijing to arrest the author of a negative expose about a dispute between his government and a businesswoman. That case involved a relatively small magazine, Faren, but it sparked a firestorm of criticism in the national media that resulted in the dismissal of the party secretary.
In the present case, the CCTV reporter was not arrested for her writing, but observers still see the local procuratorate overreaching its authority, particularly because it was the focus of the reporter's own investigation.
Liu Xiaoyuan, a Beijing-based lawyer whose blog was honored by the Deutsche Welle International Weblog Awards this year, elaborated on the jurisdictional issues involved in the case:
Prosecuters nab a reporter in Beijing, but jurisdictional questions remainby Liu Xiaoyuan
Ever since reading this report, I've been thinking about the jurisdictional issues.
Reporter Li was covering the Xinghualing District Procuratorate in Taiyuan, Shanxi Province, which had been accused of using its authority to interfere in an economic dispute, a suspected abuse of power.
Even if Li is to be charged with accepting bribes — accepting costly gifts while carrying out her duties — the Xinghualing Procuratorate should recuse itself from the case, or else it will face suspicions that it is out for revenge.
For a bribery case involving an ordinary reporter, Article 13 of the Rules on the Criminal Process for People's Procuratorates stipulates that it is usually handled by the lowest-level procuratorate (except when the sums involved are large, in which case the provincial-level procuratorate handles the case). So why did the Supreme People's Procuratorate need to "designate" a jurisdiction in this particular case?
And even if this were a bribery case involving an ordinary reporter that was passed from level to level for further instruction until it reached the hands of the Supreme People's Procuratorate, I'm not so sure that the Supreme People's Procuratorate would have been so confused as to issue instructions that the case be handled by a district procuratorate accused of abuse of power and under media investigation.
If the Supreme People's Procuratorate truly designated the Xinghualing District Procuratorate as having jurisdiction over this case, that would be nothing short of astonishing.
Article 15 of the Rules stipulates that in crimes committed by state personnel taking advantage of their position, the local procuratorate where the suspect's work unit is located has jurisdiction. A different procuratorate may be granted jurisdiction if it would be more appropriate.
CCTV is a state work unit, so according to Article 93 of the Criminal Law, its employees are categorized as "state personnel."
If Li is a suspect in a bribery case, the case ought to be under the jurisdiction of a Beijing district procuratorate (unless the sum involved is large, in which case a municipal or municipal branch procuratorate would have jurisdiction).
Although Article 15 stipulates that a different procuratorate may be granted jurisdiction if it would be more appropriate, Xinghualing District Procuratorate is not more appropriate for this case, in my opinion. If they handled the case, it would be hard for them to act rationally, objectively, and impartially. The subject of the reporter's investigation involved the district procuratorate, so it should recuse itself from the case.
Article 16 of the Rules stipulates that in cases where jurisdiction is unclear, the People's Procuratorate can be consulted to assign jurisdiction. In cases with disputed jurisdiction, or which involve other special circumstances, the disputing parties' shared upper-level procuratorate assigns jurisdiction.
The jurisdiction in Li's bribery case is not unclear.
According to news reports, the bribes were given by the brother of Wu, a businessman in Huizhou, Guangdong Province. He bought expensive gifts for Li. If we suppose that Wu's brother gave the gifts in Xinghualing District, Taiyuan, Shanxi Province, that district would be the location where the crime was committed, giving Xinghualing District Procuratorate the right to handle the case. However, because the procuratorate was the subject of a journalistic investigation, and because it was in the course of her investigation that Li accepted the bribes (assuming that this was indeed the case), the district procuratorate ought to recuse itself and let the Taiyuan Municipal People's Procuratorate assign the case to another district procuratorate in the city.
If the bribery took place in Guangdong or Beijing, then the case should fall under the jurisdiction of a local procuratorate in Guangdong or a district procuratorate in Beijing.
If Li accepted bribes from Wu's brother in all three places, then procuratorates in all three regions have the right to handle the case.
According to Article 16, however, the higher-level People's Procuratorate will only designate a jurisdiction if the three local procuratorates dispute the jurisdiction. I wonder if prosecutors in Beijing and Guangdong disagree with jurisdiction in this case?
The higher-level People's Procuratorate may designate a jurisdiction in cases involving special circumstances. However, in my opinion, what's special about this case is that Li was investigating a procuratorate that had been reported for abuse of power, and that same procuratorate accused her of accepting bribes. Isn't this a special case? Why would the higher-level People's Procuratorate for the three regions — the Supreme People's Procuratorate — assign the case to the Xinghualing District People's Procuratorate?
Article 18 of the Rules stipulates that the higher-level People's Procuratorate may designate a lower-level People's Procuratorate to handle a case whose jurisdiction is unclear or needs to be changed.
The jurisdiction is not unclear in Li's bribery case, but it needs to be changed because of special circumstances.
Therefore, prosecutors ought to change the jurisdiction in this case in accordance with the law. If the Xinghualing District Procuratorate continues to handle the case, how will people be convinced that justice has been done?
Li's bribery case reminds me of Yang Jia's attack on the police. After the attack, the case was first handled by the "victimized" agency — the Zhabei District PSB. It was only after this raised questions among the general public that the police transferred the jurisdiction and let the Shanghai Municipal PSB investigate. However, impartiality remained an issue throughout the whole process.
Li's bribery case involves the Xinghualing District Procuratorate. If they have jurisdiction over the case, can they act rationally, objectively, and impartially?
Procuratorates handle the investigation of cases and are also responsible for legal supervision. When they are directly related to a case, they ought to adhere even more closely to legal procedures. Only then will judicial agencies have any credibility.
Update: Today's Mirror provides some additional information. The newspaper spoke wth He Shusheng, the chief prosecutor at the Xinghualing District Procuratorate, who maintained that his office had done nothing wrong:
As for that document, the newspaper also reports that the Supreme People's Procuratorate is currently conducting an investigation into where it came from:
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