Lena Zhong. Journal of Contemporary China. "The Politics of Wrongful Convictions in China"

Recently a series of high-profile wrongful convictions in China have undermined public confidence with the criminal justice system and the official stress on ‘ruling the country by law’. This article aims to further the scholarship on wrongful convictions in China by investigating the characteristics of 141 erroneous convictions (206 defendants) in which the defendants are declared factually innocent by a court. These cases allow an examination of the direct contributing factors (such as mistaken eyewitness identification and forensic errors) and underlying political factors (such as the form of political–legal work as led by the Party/State and the political importance in maintaining social stability) for wrongful conviction in China. The analysis enables us to develop more effective countermeasures against wrongful conviction in the Chinese context.

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Alvin Y.H. Cheung. ChinaFile. Who's to Blame for Hong Kong's Weakening Rule of Law?

January 23, 2018

Rimsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.

According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.

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Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

The influence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system.

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Margaret K. Lewis. ChinaFile. Protecting the Rights of the Accused in U.S.-China Relations.

As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.

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Margaret K. Lewis. The Diplomat. "Taiwan’s Human Rights Revolution and China’s Devolution"

The gulf between legal systems across the Taiwan Strait is far wider than a hundred miles. Last month, Lee Ming-che — a Taiwanese citizen and human-rights activist — pleaded guilty to subversion charges in China for peacefully expressing political opinions. Today he remains in custody awaiting a decision on his punishment. Lee’s case has heightened already strained cross-strait relations. It has also laid bare the increasing divergence between China and Taiwan with respect to protecting human rights.

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Jerome A. Cohen. ChinaFile. Comments on Lee Ming-che's Arrest.

April 20, 2017

A Taiwanese Man’s Detention in Guangdong Threatens a Key Pillar of Cross-Straits Relations

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.”

Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei?

Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

 

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.” Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei? Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

Read the entire article here.

Jerome A. Cohen. Storm Media Group. 孔傑榮專文:北京錯估逮捕李明哲的後果

June 06, 2017

日前不幸消息傳來,中華人民共和國以「顛覆國家政權罪」「逮捕」了臺灣人權活動人士李明哲。這亟需我們進行反思和進一步評論。       

 

首先值得注意的是,北京在宣布正式「逮捕」前已經將李明哲隔離監禁了六十八天(按:見刊此時已經八十天)。這再次表明,中國國家安全部和公安系統如今頻繁使用「監視居住」手段,來規避中國《刑事訴訟法》所規定的普通拘留或逮捕程序的時限。即便警察扭曲解釋了《刑事訴訟法》,那至多也只能允許他們在檢察院正式作出逮捕決定之前拘留嫌疑人三十七天。按照國際標準,這一拘留時間已經遠遠長於正常的期限。然而,現在警察只要聲稱當事人涉嫌危害國家安全,就能在提請檢察院批准「逮捕」之前,通過監視居住這一強制措施關押嫌疑人長達六個月。此外,如同警察在其他一些涉及人權律師案件中的作法,他們甚至可以再次或多次更新為期六個月的監視居住,以長期拘留嫌疑人。這無疑是對《刑事訴訟法》的嘲弄。

其次,如臺灣陸委會簡要指出,圍繞李明哲被捕的情況進一步證實,北京方面自從臺灣新任總統蔡英文一年前就職以來,一直拒絕執行重要的《海峽兩岸共同打擊犯罪及司法互助協議》。中國不但沒有按照協議及時通報臺灣當局李明哲被限制人身自由的訊息,而且在近十周的監禁後,仍然沒有安排家屬探視。臺灣的海峽交流基金會,表面上雖然屬於半官方機構,但被兩岸授權負責執行所謂「非官方」的兩岸協議。而如今,在北京置之不理的情況下,海基會要求中國政府保護李明哲的權利並公布支持其指控的相關證據。之前在臺灣前總統馬英九執政時期與中國執法機關保持良好合作關係的臺灣法務部,現淪落到只能通過電子郵件向中國檢察院要求在調查期間保障李明哲的身體健康、人身安全和司法程序中的權利。至少在名義上,檢察院擁有對全能的秘密警察進行監督的權力。

Read the entire article here.

USALI Affiliated Professor Eva Pils Quoted in Guardian Article

April 28, 2017

China convicts rights lawyer Li Heping of 'subversion of state power'

Li, once told that China considered him ‘more dangerous than Bin Laden’, sentenced in secret trial to three years in prison with a four-year reprieve

A respected Christian human rights lawyer has been convicted of “subversion of state power” at a secret trial in China, almost two years after he was first detained in a sweeping crackdown.

Li Heping was sentenced to three years in prison with a four-year reprieve, the court in the eastern city of Tianjin said on an official social media account, meaning he should be released but could be arrested and jailed at any point.

The trial was held behind closed doors on Tuesday because “the case involved state secrets”, the court said, but was only announced along with the verdict on Friday.

 

'I want to rescue my dad': children's heartbreak for the lawyers China has taken away

Li was swept up in a nationwide crackdown on rights lawyers and activists in July 2015, where police detained or questioned about 250 people. Since assuming power, China’s president, Xi Jinping, has launched a new wave of attacks on activists and the lawyers who defend them.

Li’s case drew attention around the world, and EU officials, as well as the embassies of 11 countries, called for his claims of torture while in custody to be investigated. His wife has said authorities used electric shocks on him.

“A suspended sentence does not mean he’s free until we actually get to see him and he’s allowed to speak freely, and given what we’ve seen in the past that probably won’t happen,” said Eva Pils, a professor at King’s College London and longtime friend of Li.

“It was a secret trial so we don’t know what state he is in,” Pils added. “In addition to our usual concerns about torture and physical health, I’m worried that this entire process may have robbed him of his mental health, especially after what they’ve apparently done to his brother.”

Li’s younger brother, Li Chunfu, emerged from 500 days of secret detention in January and was later diagnosed with schizophrenia, according to his family.

Li became well known for defending the disenfranchised, including Christian house churches, victims of forced evictions and free speech advocates. He worked within the scope of China’s legal system, rather than taking to the streets in protest. One Chinese security agent reportedly once told Li that the state considered him “more dangerous than Bin Laden”.

Although Li is likely to be released in the coming weeks, he has already spent more than 20 months in detention. At least 11 activists who received suspended sentences disappeared shortly after they were released, with some forced to undergo months of political education classes before being placed under house arrest by local police, according to human rights groups.

The court’s verdict was seen as a warning to other activists, and included a catalogue of vague charges, without citing any specific examples of illegality.

“The court ruled that since 2008, the defendant Li Heping repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system,” the court said. The court also accused Li of accepting foreign funds and employing paid defendants.

A lawyer hired by Li’s family to defend him was rejected by authorities and he was ultimately given a government appointed lawyer, an increasing trend in political prosecutions.

The conviction came on the same day that another civil rights lawyer, Xie Yang, was set to go on trial, but it was later cancelled.

Read the full article here.

USALI Affiliated Professor Eva Pils Quoted in Reuters Article

June 5, 2017

China activists fear increased surveillance with new security law

By Christian Shepherd

(Refiles this May 25 story to add "Chinese" to advocacy group's name in paragraph 13.)

By Christian Shepherd

Chinese activists say they fear intensified state surveillance after a draft law seeking to legitimize monitoring of suspects and raid premises was announced last week, the latest step to strengthen Beijing's security apparatus.

Half a dozen activists contacted by Reuters say they already face extensive surveillance by security agents and cameras outside their homes. Messages they post on social media, including instant messaging applications like WeChat are monitored and censored, they said.

The draft of a new law to formally underpin and possibly expand China's intelligence gathering operations at home and abroad was released on May 16.

However, the law was vaguely worded and contained no details on the specific powers being granted to various state agencies.

"State intelligence work should...provide support to guard against and dispel state security threats (and) protect major national interests," the document said.

The law will give authorities new legal grounds to monitor and investigate foreign and domestic individuals and bodies in order to protect national security, it said.

Public consultation for the draft ends on June 4. It is unclear when the final version may be passed.

Hu Jia, a well-known dissident, said the release was met with fear and despair in his circle of reform-minded activists, where it was seen as a sign of strengthening resolve in the ruling Communist Party to crush dissent.

"Before, the party acted in secret, but now they have confidence to openly say: 'We are watching you'," Hu told Reuters.

"The law is also partly to frighten people ahead of the 19th Party Congress; to tell them to be careful, to be quiet," he added. Hu was referring to the once in five years congress of the Communist Party likely to be held in October or November in which President Xi Jinping is likely to further cement his hold on power by appointing allies into the party's inner core.

Read the entire article here.

Margaret K. Lewis. CFR. "What Would Trump Do if There Were Another Tiananmen Incident?"

May 31, 2017

Margaret K. Lewis is a professor of law at Seton Hall University School of Law and a Fulbright research fellow at National Taiwan University School of Law.

As the world reflects on this week’s anniversary of the Tiananmen Square protests and subsequent violent crackdown by the PRC government, it is worth contemplating what President Donald J. Trump would do if faced with a similar situation. When asked about Tiananmen during the campaign, Trump said he was not “endorsing” China’s response, but he called the demonstrations a “riot.” Would President Trump see a riot or a massacre if the events of June 4, 1989, were replayed today?

The U.S. bombing raid in April that President Trump linked to the Syrian government’s use of chemical weapons against civilians suggested that human rights would be prominent in shaping foreign policy. Yet President Trump’s remarks during his recent visit to Saudi Arabia and praise for leaders with deeply problematic human rights records, such as Egyptian President Abdel Fattah al-Sisi, caution otherwise.

Specifically regarding China, in March 2016 the Obama administration joined eleven other countries in issuing a rare statement expressing “concern[ ] about China’s deteriorating human rights record” and calling on China “to uphold its laws and its international commitments.” The United States was noticeably absent a year later when eleven countries—including Canada, Australia, and the United Kingdom—sent a letter to the Chinese government expressing “growing concern over recent claims of torture and other cruel, inhuman or degrading treatment or punishment in cases concerning detained human rights lawyers and other human rights defenders.”

The Trump administration is admittedly not breaking the mold: U.S. government policy towards China has always been, at least to some degree, pragmatic. President Jimmy Carter entered office with human rights as a cornerstone of his foreign policy. Nonetheless, even he recognized the United States’ many interests when dealing with China and normalized relations. President George H. W. Bush suspended military contracts and technology exchanges with China following the Tiananmen Square massacre. President Bill Clinton, however, restored China’s most favored nation trading status four years later and quickly relaxed rhetoric that China must make significant progress towards conforming with international human rights standards.

While the tension between principles and pragmatism is not new in U.S. policy towards China, the current dismissive attitude towards human rights is jarring. The past four months indicate that policy decisions based on immediate economic and security calculations will prevail over long-held human rights values. As I have argued elsewhere, this is a mistake. Addressing human rights in both a principled and pragmatic way requires not just stating that human rights matter in the abstract but also articulating an integrated, executive-branch-wide plan for how human rights will be raised in various contexts.

Read the entire article here.

USALI Affiliated Scholar Eva Pils Quoted in Washington Post Article

A broken lawyer and a hawkish judge cast deep pall over China’s legal system

January 2017

Read the entire article here.

BEIJING — For 500 days, Li Chunfu, once a lively and tough human rights lawyer, was kept in secret detention by China’s Communist Party. When he was finally released on Jan. 12, his wife was so shocked she could hardly believe her eyes.

Her 44-year-old husband was a thin, pale and sick man, Bi Liping said, a fearful and paranoid person who seemed to have been broken by the system.

A Beijing hospital soon gave him a tentative diagnosis of schizophrenia.

Li was one of 300 lawyers and advocates who were rounded up in a crackdown in July 2015. Most were soon released, but two have been sentenced and four remain in detention.

In statements to the China Change website, relatives and fellow lawyers said Li had been severely tortured and drugged during detention.

But his story is not the only one to have cast a shadow over the rule of law in China this month.

In a remarkable speech two days after Li’s release, the chief justice of the country’s Supreme Court told provincial judges to resist “erroneous” Western ideals of judicial independence, constitutional democracy and the separation of powers.

“One needs to have a clear-cut stand and dare to show the sword against them, to struggle against any erroneous words and actions that deny the leadership of the Communist Party, or slander the rule of law and the judicial system of socialism with Chinese characteristics,” Zhou Qiang said.

While the idea that the Communist Party is in firm control of the legal system is hardly new, to see the idea of judicial independence so explicitly condemned by the country’s top judge, a man once seen as a reformer keen on limiting officials’ power over local courts, came as a shock to many people.

Two open letters expressing outrage at Zhou’s remarks are circulating, one signed by 23 lawyers and another signed by 155 leading liberal intellectuals.

“In the past few years, the legal community has been working hard toward establishing an independent judicial system,” said Lin Liguo, a former lawyer based in Shanghai who wrote the lawyers’ letter.

Lin said Zhou’s remarks had burst reformers’ optimism. “What Zhou said is basically that we don’t need judicial independence at all,” he said. “That’s why people are so upset.”

[China’s Communist leaders promise legal reforms — under party authority]

At a key meeting in October 2014, the party’s top leaders promised to give judges more independence from interference by local officials, and President Xi Jinping has often pledged to strengthen the rule of law — while at the same time underlining that the Communist Party remains firmly in control and effectively above the law.

Yet such was the controversy stirred by Zhou’s remarks that the Supreme Court issued five separate social media posts last week, each hundreds of words long, explaining and amplifying his remarks. At first, they attracted hundreds of comments from ordinary people, until censors shut down the comment function.

In a blog post, Jerome Cohen, an expert in Chinese law at New York University School of Law, called it “the most enormous ideological setback for decades of halting, uneven progress toward the creation of a professional, impartial judiciary.”

He said there was “enormous dissatisfaction among many judges at the restrictive, anti-Western legal values being imposed by President Xi Jinping, with many younger officials leaving the courts and procuracy for work in law firms, business and teaching.”

Eva Pils, an expert in transnational law at King’s College London, said Zhou’s speech came as a “real shock” to people in the legal system who had been educated to believe that China was striving for better rule of law and who found it unacceptable that their country was “departing so completely and so rapidly from the reform path.”

It is, in other words, one more nail in the coffin of the idea that China’s legal and political system would ultimately move in a more liberal direction, experts said.

“I think that lots of people are still in denial about this departure from the reform path, and the turn to rule by fear, and that they are unwilling to consider the full implications of the new rhetoric,” Pils said.

Experts said Zhou may have come under pressure to publicly declare his loyalty to the party, especially as a team from the Communist Party’s anti-corruption arm had been reportedly carrying out an inspection of the Supreme Court since ­mid-November. Ensuring his appointment was renewed at a major party Congress in October may have played a part, they said.

But Zhou’s words still came across as particularly strident, as he insisted on the importance of “ideological work” and recommended judges “severely strike” at people who use the Internet to endanger national security — code for undermining the Communist Party.

He also recommended judges protect the images of leaders, heroes and historical figures, “to resolutely safeguard the glorious history of the Party and the People’s Army.”

Zhou’s warning echoes Xi’s campaign against “historical nihilism” — questioning the Communist Party’s heroic account of its own history. In the past few weeks alone, a Chinese professor and a government official were both sacked, and a TV producer was suspended, for criticizing Mao Zedong, who is officially revered as the founder of modern China even though he presided over the deaths of tens of millions of people in a famine during the Great Leap Forward and unimaginable cruelty during the Cultural Revolution.

The case of the lawyer Li has underlined what happens to people who dare to challenge the party.

Li grew up poor in China’s central Henan province. He dropped out of school at 14 to work in factories but spent six grueling years studying in his spare time to follow in his brother’s footsteps and become a lawyer.

Maya Wang at Human Rights Watch said it was unclear what he was supposed to have done wrong — perhaps demonstrating outside a police bureau in Heilongjiang in 2014 to demand access to his client, perhaps being the brother of Li Heping, a well-known civil rights lawyer who was also detained in July 2015, or perhaps simply being tarred as an agent of a hostile foreign government.

But what broke him is no mystery, she said in a statement, citing how suspects are frequently beaten, hung by their wrists and deprived of sleep, as well as subjected to indefinite isolation and threats to their families.

 

Aaron Halegua. Employees in China should be allowed to protest against work conditions without fear of reprisals. SCMP (South China Morning Post)

China issued a new regulation to better protect whistle-blowers who report work-related crimes. Among the provisions are several articles that not only prohibit retaliation, but also, for the first time, describe the many forms it can take and provide greater detail on how the government should prevent and address reprisals. 

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Margaret K. Lewis. A Review of China’s Record on Torture. University of Nottingham Blog

Chinese President Xi Jinping stated that “China has made enormous progress in human rights. That’s a fact recognized by all the people of the world.” The statement is true when viewed against the abuses committed under Mao Zedong. Yet the 2015 UN report on China’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment presents a bleak view of the realities in China today.

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Jerome A. Cohen. The Silencing of Gao Zhisheng. CFR (Council on Foreign Relations)

China is increasing spending on the World Expo in an attempt to confirm the country's arrival on the world stage, but there is also a far darker side to China's rapid development and to the Expo itself: the silencing of a growing number of protesters. Police brazenly warned Shanghai's most famous dissident, Feng Zhenghu, to keep quiet or be "disappeared" like Gao Zhisheng. 

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“赤脚律师”艰难维权──中国农村正义之路在何方?

孔杰荣(柯恩)

中国的法律改革人士、政治活动家和宗教践行者还能承受多少肉体和精神上的压迫?中国政府还要借“和谐稳定”之名强加于他们多少痛苦,同时令其自身在这个需靠“软实力”征服的世界面前蒙羞?这个取得了非凡经济发展成就,令几亿人脱贫的政权,为何会招来像高智晟、郑恩宠这样的“维权律师”,刘晓波、胡佳这样的知识分子,以及数以百万计不知名的“家庭教会”和法轮功信徒的坚决抵制,甚至不惜以身殉道?

盲人“赤脚律师”陈光诚上周刑满获释,使得此类问题再度浮出水面。就算一般中国民众不晓得,全世界都知道,今年三十八岁的陈服刑五十一个月后,不过是换了一种方式继续被囚禁。他的家,一间位于山东省赤贫地区东师古村的简陋农舍,不是“避风港”,而是监狱。

这样的状况实在陈意料之中。零六年三月他被警方拘禁,但早在那之前七个月,他的家就开始受到大批员警及其狗腿二十四小时无间歇的非法包围。这些人除了阻止陈和陈妻──同样勇敢无畏的袁伟静女士──离开村庄外,也不允许律师、记者或慕名前来拜访陈的人进入村庄。陈曾有一次突破阻挠逃往北京,但随即被他们强行带回,同行的律师也遭到殴打。陈的电子通讯亦受到管制,盲人专用电脑也被员警没收。在陈服刑的大部分时间内,其妻仍继续受到警方骚扰。现在这种骚扰再度升级,不仅在他们房子周围和村里道路上增派人力,还加装摄像机进行监控。

这对满怀理想的夫妇,何时能自这梦魇中醒来?当地政府已决意要摧毁他们的意志。陈的家人被剥夺法定每月探监的权利。陈在被拘留后不久,即受到严重殴打。零七年,陈被授予享誉国际的亚洲“麦格塞塞”新兴领袖奖,但袁女士却被禁止出境代替其夫领奖。零八年,陈患上持续性腹泻,健康恶化,却被政府剥夺充分治疗和保外就医的权利。这不禁令人怀疑政府是不是企图令他在肉体上永远成为“废人”。去年,看管袁女士的人告诉她,政府已花费人民币一千五百万元,用于管制这个家庭,另又拨出五千万元在此目的。对于一个贫困的村庄,这是何等一笔巨款!最近,他们加大恫吓力度,拒绝接收陈的女儿进入幼稚园,理由是她父亲的问题“还没有解决”。

陈究竟做了什么,让他遭受如此折磨?经过两次荒唐“审判”,这个穷苦农民的儿子被以“聚众扰乱交通秩序”和“故意毁坏财物”“莫须有”定罪。然而,他真正的“罪行”,却是试图利用法律手段来纠正地方政府的一些错误行径。陈并非习法出身,他和其他许多盲人一样接受了成为按摩治疗师的训练,但他深感于作为一个残疾人所受到的官方歧视,遂决定以法律手段阻止歧视。但是,沂南县(人口九十二万)仅有的四名律师,为与地方政府搞好关系,无一愿接这类没有“油水”的案件。中国残疾人联合会沂南县办公室,顾及对地方政府的依赖,亦拒绝协助陈落实国家的反歧视法律。

不得已,陈决定利用中国法律制度的特点,作为非专业人士参加诉讼,并且很快因帮助弱势群体打官司而声名远扬。他试图追究地方官员违反国家税收规定、残疾人保障法和刑法的相关责任。虽初见成效,但很快他就开始面临来自法官的阻力。这些法官夹在国家法律和地方官员中间,他们的资金来源、晋升、工作保障等等均有赖于后者。零二年,《新闻周刊》国际版的封面故事以长达八页的篇幅介绍了陈及其事迹。隔年春天,美国国务院即邀请陈赴美对法律机构进行考察。正是那次行程,使我得以与这位富有魅力的年轻人成为朋友;然而在他的家乡,政府的不满也愈演愈烈。

零三年九月,我在清华大学任教,便邀请陈来北京,介绍他认识几位法学教育家。陈认为单单满足沂南县的法律服务就需要数百名“赤脚律师”,我希望这些教育家可以支持他为这些“赤脚律师”提供培训的想法。我们还送给他一些工具书,内容出乎意料的好,能帮助非法律人掌握中国复杂的法律和司法程序。

由于陈坚持,只有亲眼所见,才能了解中国广大农村的法律需求,我和我的妻子隔月便前往陈的家乡东师古村停留数日。我们见到他的邻居,采访了他的“当事人”──一群身残志坚的残疾人,并拟定了“赤脚律师”培训计划。陈在当地人心中无庸置疑的声望给我留下了深刻印象。其中许多人日后被禁止出席陈的庭审作证。同样令我难忘的,是看到几周前他刚刚拿到的工具书,已满是翻阅和标注的痕迹。陈的妻子和兄长负责将这些书读给陈听,他们同时也是陈业余法律援助活动的一分子。

不幸的是,我们的计划被省政府为满足中央分配的节育目标所发动的一场残酷运动,扼杀在襁褓之中。仅山东一省,数以千计的妇女因躲避强制堕胎和绝育,受尽当地官员野蛮虐待,其家人亦不能幸免。许多受害者向陈求助,陈却越来越沮丧地发现,以他之力,无法说服官员或是法官,停止这种对国家计划生育和刑事法律的公然违背。

我最后一次见到陈,是零五年夏,他精神紧张,烟不离手,因失眠倍显虚弱。不论风险多大,他仍不顾一切地通过互联网和外国记者来曝光这些法院不愿干涉的暴行,也因为这方式太有效,危及了他自身的安全。

“‘上面’究竟想让我怎么样,上街组织暴动吗?”陈激动地问我,“为什么不让我通过法律办事呢?”讽刺的是,对陈不公正的定罪是中共给他的答复,而罪名正是他一直试图避免的抗议方式。尽管中央有关部门事后亦谴责山东省在执行人口政策中的倒行逆施,但揭发这个问题的人却成了“替罪羊”。

上周,获释后的陈光诚告诉朋友们,他一点也没有改变。不知道接下来无止境的软禁,会不会最终将他瓦解?

(作者孔杰荣 Jerome A. Cohen,纽约大学亚美法研究所共同主任,外交关系协会兼任资深研究员。英文原文请参www.usasialaw.org。亚美法研究所研究员韩羽译。)

人道第一 抢救刘晓波

出处:2010年10月14日 中国时报

作者:孔杰荣(柯恩)

衡量刘晓波在上周五获得诺贝尔和平奖所产生的影响,除获奖者本人外,至少有六个群体应纳入考量。一是通过扼杀异见维护统治的中国共产党领导人;二是夹在党的政策与法治要求中间,左右为难的法律精英;三是目前以刘为重要象征的一群异议人士及“维权人士”;四是人数甚众,也更加多元化的一批努力想要调和中国传统、“西方化”、民族主义和普世价值的知识分子;五则是在此之前对刘一无所知的普罗大众,他们对刘与他人共同起草的民主宣言《零八宪章》也闻所未闻,尽管该宪章迄今已有约一万人签署;最后则是国际社会,因刘晓波获奖再度燃起对中国政治体制性质的关注。

中共领导人,即便自三年前召开的共产党第十七次代表大会起,就以日愈严苛的镇压式手法统治这个国家,但对于阿尔弗雷德·诺贝尔这个军火制造者最近一次抛出的重磅炸弹,也无法置之若罔。他们旋即作出了极为糟糕的回应。领导人依旧“失声”,外交部却宣称,诺贝尔委员会的决定,是对该奖项宗旨的“亵渎”。与此同时,警方也将一切国内的庆祝活动扼杀在襁褓之中。刘晓波的妻子刘霞,仅仅见了狱中的丈夫短暂一面,就被软禁起来。公开的支持者们,不是被拘禁,就是遭到殴打或威胁。即便是国务院总理温家宝,虽近几周频频示意赞成普世价值与政治改革,以致引发人们各种猜测,但被问及对获奖事宜的看法时,却选择保持沉默。

然而,政治局委员何其聪明,他们知道以保持沉默和镇压的手段,无法化解眼下的挑战。不可否认,当一九八九年达赖喇嘛获得诺贝尔和平奖,以及另外一些虽不那么有名,却同样重要的奖项颁布之际──如异议人士胡佳获得欧洲议会颁发的萨哈罗夫奖,以及盲人“赤脚律师”陈光诚获得菲律宾的麦格赛赛奖──这一招曾非常奏效,帮助中共平安渡过由此引发的风波。但眼下的情况,却颇有愈演愈烈之势。

当然,刘获奖带来的影响在许多方面还不甚明朗。刘晓波不太可能立即获释。毕竟,胡佳也还身陷囹圄,而陈光诚,即便在服刑期满后,也仍然被软禁在家。但是,鉴于二零一二年将产生新一届政治局常委,刘的获奖,或许会引发对此间席位角逐的关注,甚至于产生影响。许多坐卧不宁的中共干部,在未来领导人的选择上,会倾向于那些能够积极应对来自国内外人权压力的人选。

诚然,中国迅速成长起来的法律精英群体中,有许多人都会乐于见到这样的改变。自党的十七次代表大会以来,中共发布的法律政策频频倒退,其任命的高层法律官员,虽政治性强,专业方面却不合格。这一系列问题,都对中国数十万的法官、检察官、律师、行政官员以及法学教授的日常工作产生了影响;尽管他们中多数都是中共党员,却也在不断与这种现象搏斗。刘的获奖,唤起他们对普世价值的记忆──这个中国自七九年起的法律改革所一贯秉承的价值观;同时也让他们想起了,中共一意孤行,对其自身引入的准则阳奉阴违,其不断加剧的态势,已经遭受到外界的抵制。原本,在比较保守倒退的中共组织,和比较自由化的法律精英之间,“红”与“专”的紧张关系就酝酿已久,蓄势待发,刘此番获奖,无疑更热化了这一冲突。

一个更明显的群体,则是在这个国家中,受到四面楚歌的异议人士及“维权人士”,以及勇于为这些人辩护的律师,刘获奖的消息对他们来说如同注入一剂强心针。这些言论自由和法治的支持者,一直以来孤军奋战,非常渴望得到国际社会对于他们所作出的牺牲的认同,哪怕这种认同令他们遭受到更惨重的镇压。

与异议人士和“维权人士”不同,大部分中国知识分子选择避免正面冲突。他们对于这个国家的国情、目标和政策,有着各自不同的理解。不过,不论他们给改革开出怎样的“处方”,他们都相信,为了避免引起中共的镇压,这只能是一个耐心的、长期不懈努力的过程。他们中的一些人,不愿因此丧失中国社会经济进步带给其的可观利益。其他人,则当然是害怕需要他们以身殉道。不过,刘的获奖,对他们正在进行的关于中国传统、当前面临的窘境,和未来方向的争论,无疑是火上浇油。

由于党政府对媒体和网路的控制,中国好几亿人此前对刘晓波和《零八宪章》闻所未闻,因此要衡量该奖项带给他们的影响,就比较困难。拜这一周来大规模的封锁消息运动所赐,他们中大多数人恐怕仍然对刘晓波获奖一无所知。此外,中国政府似乎摆出想要“借力打力”的架势,在尽可能地强加其单方面解释之后,逐步开放了消息。然而,此番获奖已被称作是一种“侮辱”,是帝国主义的最新阴谋,通过否定中国的价值体系和丰功伟绩,来羞辱中国人民。

该奖项对于外界的影响,无疑是最显而易见的。所有民主国家的政治领袖,以及民意,绝大多数都为这一选择欢欣鼓舞。甚至是致力于台湾和中华人民共和国之间达成历史性和解的台湾总统马英九,也建议立即释放刘。国际社会达成鲜明共识,一致支持诺贝尔委员会主席所表述的原则:“当其他人无法站出来维护自己的时候,我们有责任为他们发声”。

继一九八九年六月四日之天安门惨案后,这是中国领导人作出的最有违人道之举。

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(作者孔杰荣 Jerome A. Cohen, 纽约大学法学院亚美法研究所共同主任,纽约外交关系协会兼任资深研究员。作者义务担任刘晓波之妻刘霞的法律顾问小组“现在自由”(Freedom Now)之成员。英文原文请参www.usasialaw.org。亚美法研究所研究员韩羽译。)