A Letter to the Legal Professionals
in Chongqing
He Weifang | Posted on
2011-04-12
贺卫方按：近悉香港大学“中国媒体项目”已经将我致重庆法律界的公开信翻译成英文，发表于该机构的网站上。译文有极个别节略，我也做了几处修订。这里也转载一下，并表达对该机构的谢意。
http://cmp.hku.hk/2011/04/12/11481/
Dear colleagues in the legal world in
Chongqing:
For more than a year now, I’ve wanted to write an open letter to
discuss with everyone my views on the “anti-crime drive” (打黑) in
Chongqing. But considering that I wrote quite a number of
commentaries on my own blog and for various media, I feared I might
make carping remarks or get all twisted up, so I wrote off the
idea. However, a number of trends in Chongqing of late are nagging
causes for anxiety. In my view, the various things that have
happened in that city already pose a danger to the most basic
notions of a society ruled by law. And as a legal scholar, one in
particular who has participated in the process of judicial reform,
I believe I now have an urgent duty to openly express my uneasiness
and voice my criticisms.
Another factor behind my writing of this open
letter is the fact that Chongqing is the locale of my alma mater,
Southwest University of Political Science and Law, and a city of
which I have the fondest memories. It was there in 1978, after
a “long a arduous journey,”
that I began my sojourn into
legal studies in that campus at the foot of Gele
Hill.
In the course of our studies that year, our
teachers too had only just returned to campus life after the
“terrible decade” during which they were suppressed, and they spoke
of the lawless days of the Cultural Revolution, chapter upon
chapter of misery and suffering. A number of teachers could not
hold back the tears. Actually, all of us students had also
experienced the Cultural Revolution first-hand, and all of us one
way or another treasured this course of study in law. We longed for
the future of building rule of law in our homeland, and we all
hungered for the opportunity to get involved in this great project,
doing our part to preserve civil rights and freedom. We made up our
minds that we would not allow the tragedy of the Cultural
Revolution to be replayed on this soil.
Now, thirty years have passed, and so many things
have happened in this city with which we are so intimately
familiar, things that cause one to feel that time has been dialed
back, that the Cultural Revolution is being replayed, and that the
ideal of rule of law is right now being lost.
That’s right, I’m pointing to the “campaign of crackdown on criminal forces”
(打黑除恶) that has been going on [in Chongqing] for two
years now (and of course also about this business of
“singing red songs,”
though I’ll set this issue aside for
now).
Throughout this whole “campaign against crime” (打黑) we have seen the furious unfolding of movement-style
(运动式) law enforcement
and administration of justice. Within a short eight months, the
authorities rounded up close to 5,000 “criminally involved” (涉黑)
persons by means of informing (or so-called “letters and denunciations by the
masses”). Along with
this we had one-hundred or so “special case teams” (专案组) making
assaults are carrying out wholesale arrest, prosecution and trial
proceedings with so-called “Chongqing speed” (重庆速度).
As the diary of Judge Wang Lixin
(王立新), posted to the official website of the Supreme
People’s Court ahead of
the hearing of the Wen Qiang case (文强案) on appeal, clearly shows, police, prosecutors
and the courts [in Chongqing] worked in concert, preparing cases
without any separation of responsibilities. It’s not just this, but so-called
“three chiefs
conferences” (大三长会议) have
actually appeared too. For a number of important cases, the chief
judge, the attorney-general and the police chief will hold meetings
and work in a coordinated fashion, so that the cases decided before
they ever even go to trial. The eventual hearing of the case is a
mere formality. The institutional goal of allowing the three
branches to mutually check one another is entirely for naught. My
colleagues, do you not believe that these methods run entirely
counter to the independent exercise of adjudicative and
procuratorial powers clearly stipulated in our
nation’s Constitution
and Criminal Procedure Law?
In the midst of trial proceedings for the Li
Zhuang case (李庄案), we saw quite clearly that the most basic
neutrality of the court had already vanished. During the trial, Li
Zhuang and his defense attorney requested that witnesses appear in
court to be cross-examined. I have no doubt that Judge Fu Mingjian
(付鸣剑), who officiated at
the trial, understands only too well the importance of face to face
cross-examination, because the topic of his research paper at
Southwest University of Political Science and Law was on the
necessity of witnesses appearing in court for cross-examination.
But the collegiate bench [of judges in Chongqing] rejected the
request of the defendant, citing as its reason that witnesses were
unwilling to appear in court. Please, won’t you all consult your Criminal Procedure Law to
see whether or not court appearances by witnesses are determined by
the principal of willingness? Seeing as the seven key witnesses in
this case are in the custody of law enforcement in Chongqing, the
written statements they have provided might have been made under
coercion or for gain, and their testimony must be checked in
person. Only then can it really be determined whether or not Li
Zhuang instigated other in providing false testimony. Nevertheless,
the court in Jiangbei District — this is where I studied in my university
years — arrived at a
guilt verdict in the case on the basis only of this so-called
testimony there is no way of verifying.
In the midst of the hearing on appeal of this
case, something extremely strange happened: Li Zhuang, who had
firmly denied his guilt in the first trial, suddenly entirely
admitted his guilt. We are powerless to get to the bottom of the
reasons behind this dramatic shift, but when the court announced
that, owing to his confession, Li Zhuang’s sentence would be reduced to 18 months
from 30 months, Li Zhuang clearly bore the marks of humiliation and
anger of one hoodwinked, and he shouted out: “My confession is fake. I hope the court
does not handle me according to this plea bargain, as my confession
was induced by the Chongqing Public Security Bureau and
prosecutors” (see report
from Economic Observer Online, February 9, 2010). Li
Zhuang’s words show that
he had not admitted guilt.
. . .
The problem is, supposing the legal world did not
cooperate, how could these judicial dramas be perpetuated? Those
who are participating might make excuses and say that they
personally harbor doubts or even resist in their hearts, but how
can you resist such overwhelming power? Admittedly, this is a very
tangled problem. But there is still a clear line between passive
obedience and active bootlicking. It is chilling the way some
prosecutors with strict legal training have disregarded basic
concepts of law, creatively endorsing various illegal actions. And
it can be said that this is a sign of the failure of legal
education [in our country].
Here I must especially express my feelings of
disappointment with a number of law professors in the Chongqing. If
the case in professional circles is such that owing to their
professional roles they have no choice but to listen to their
superiors, it is entirely within the power of these scholars to
maintain at least a most minimal degree of independence. As for
this trampling on basic standards of rule of law, you perhaps do
not wish to directly voice your criticism, but you at least have
the right to remain silent. The history of law in many countries
shows that, in terms of protecting basic standards of rule of law,
one important mission of scholars within the legal field is to
provide theoretical support and reinforcement for professionals
working in the field. At the same time, they have a sacred duty, as
[German jurist] Rudolf von Jhering said, to “struggle for the law. Against intrusions
on judicial independence, violations of legal procedure, and
conduct damaging civil rights and freedom, scholars must issued
clear and firm criticism and opposition. But regrettably, a number
of my colleagues [in the legal world] have failed to do this. Quite
the contrary, even before the verdict in the first instance came
out, they were all singing in unison in official government
newspapers, saying things that were completely at odds with the
five procedural rules. You can all see online how various people
commented [on the case], doing damage to the dignity of academia
and especially the dignity of Southwest University of Political
Science and Law. I can’t
for the life of me understand. What motivated these colleagues to
act this way?
Finally, I have a few words for
Chongqing’s police chief, Wang Lijun
(王立军). In November 2010,
you were given a concurrent post as a director of doctoral students
at Southwest University of Political Science and Law. As it
happens, I too am a director of doctoral students at the
University. So at this point I may as well engage a fellow scholar
in a bit of conversation. While you are only chief of police, your
role has become quite prominent and you are a person of real
consequence in light of the fact that authorities in Chongqing have
given the “campaign
against crime” such a
high level of priority. I harbor a number of concerns about the
thunderbolt that is this movement you are spearheading. First, if
the guiding principle contains hints of social purification, the
result could be quite dangerous. There are always aspects of human
nature that cannot be changed, and a healthy society can perhaps
only take an attitude of tolerance toward certain human weaknesses.
There is an inherent tension between order and freedom, and if
order is emphasized too strongly, then freedom will suffer in the
balance.
Second, while we all bitterly hate criminal
elements, and we encourage dealing with criminal activity in
accordance with the law, we must also recognize that for
“black society” [criminal gangs] to have developed in Chongqing to
the terrifying degree you so enjoy declaring, this must surely mean
that serious problems have emerged in “white society” [or “clean society”]. As justice has faltered, for example,
enterprises have had to rely on means outside the law to ensure the
safety of business. While campaigning against criminal elements is
necessary, dealing with the problem at its root means building the
relevant systems to ensure that government administration accords
with the law and the courts are just.
Third, assuming that in the process of meting out
justice the government employs means that are illegal, such as
extraction of confession by torture, violating
suspects’ rights in litigation, or even intimidating
lawyers for the defense in criminal cases, the future consequences
of this will be serious. Employing illegal means to strike out
against illegal elements leaves people with the unfortunate
impression that might is right, that black can be used to deal with
black. Moreover, excessively severe penalties upset the expectation
people have for equal treatment, and this breeds pent up anger
among the family members of those already found guilty, and the
guilty who might one day be released from prison, fostering a
frightening anti-social force. For many years,
we’ve seen that the
perpetrators of many of the most grievous crimes [in our society]
were those viciously treated in previous “strike hard” campaigns [against crime] and then released at the end of
the terms. Having been in law enforcement for so many years, you
must be even more clear about this than I am.
Fourth, even though under the current system,
police organs have power surpassing that of the courts, I am
confident you must understand as a director of doctoral students,
that one important measure of rule of law in a country is the
limiting of police power by the courts. Police must respect the
courts, and they must accept the independent examination and
supervision of prosecutors, and must protect the independence of
courts and judges. Actually, respect for judicial independence is
just as important for those who hold major power in their hands.
While he was still in favor, Wen Qiang (文强) no doubt had little idea of the value of
this independence, but once he had fallen afoul of the authorities,
he must have had a rude awakening, realizing only too well that
without judicial independence no one at all is
safe.
My colleagues, as I write this letter, I think
from time to time of death. While relevant numbers have not been
completely released, since the “campaign against crime” was initiated [in Chongqing], aside from
Wen Qiang, there have been many people in Chongqing who have been
sentenced to death. Death comes to us all, but for the state to
deprive a person of his life is a grave matter. I saw pictures on
the internet of the city organizing citizens in the singing
of “red anthems.”
Red banners fluttered in the
wind, red as far as the eye could see. The color of these flags is
also the color of blood. The “singing of red anthems” and the “campaign against black” [or crime] are bathed in a common color, and one cannot
suppress all sorts of complicated memories. Nevertheless, whether
one is on top for a time, or lives in ignominy, death will visit us
all in the end. Those criminals sentenced to capital punishment
will only go there sooner than the rest [in such a system without
the protection of laws]. Decapitations and firing squads leave
behind dreadful scars, and the trauma is without a cure. The
ancient Greek playwright Sophocles recognized this only too
clearly. Let me use his words, then, to close this
letter:
No ceremony, no wedding songs, no dances and no
songs…
Just death! The end of us all is death.
The best would be not to be born at
all.
But then, if he is born, the next best thing for
him would be to try and return
to where he came from in the quickest possible
time!
While youth and its careless mind lasts, no
thought is given to what pain, what
misery will, most certainly, follow.
Murder, mayhem, quarrels, wars will come before
the inescapable end.
The hateful old age, frailty, loneliness,
desolation and
your own misery’s neighbour, is even more
misery.
I wish you all happiness, and offer a salute to
rule of law.
April 12, 2011
NOTE: The author invites the media to run the text
of this letter online, and I extend the invitation particularly to
Chongqing media. There is no need to ask permission.
[Link to Chinese original]
http://blog.sina.com.cn/s/blog_4886632001017xtf.html
