法制国家已亡、“和谐社会”将其扼杀
作者
Willy Wo-lap Lam
以和谐的名义法外执行将司法变成了的口头说教，永远也得不到落实。中共将法官变成了警察的帮凶，无力区分真理和遵纪守法。最为了解现代中国的专家之一的分析
北京（亚洲新闻）—Chinese Chief Justice Wang Shengjun’s advocacy of out-of-court mediation as a favored means of settling civil disputes and “enhancing social harmony” has raised concerns about the further deterioration of the country’s rule of law and judicial independence. At a recent seminar for senior judges, Wang, who has been president of the Supreme People’s Court (SPC) since early 2008, praised tiaojie (“mediation and reconciliation”) as an “effective way to handle social conflicts and promote harmony.” He asked the judges to “aim for a synthesis of mediation and adjudication, with priority being given to mediation.” “Upholding the priority of mediation tallies fully with the original spirit behind China’s law-making,” he indicated. “It is also a development of legal-culture traditions such as ‘valuing harmony’ and ‘playing down litigation and ending conflict’” (Xinhua News Agency, May 30; Caing.com [Beijing], May 31).
The Chinese Communist Party (CCP) administration’s push for mediation is understandable given the estimated 180,000 cases of riots, protests and disturbances that erupted in China last year (Bloomberg, June 13; Hk.msn.com, March 11). Since the spring, the country has been rocked by horrendous incidents including suicide bombings in several cities and prolonged confrontations between protestors and the People’s Armed Police in Inner Mongolia and Guangdong Province (See “Chinese Citizens Challenge the Party’s Authoritarian Tilt,” China Brief, June 3). The National People’s Congress (NPC), China’s legislature, passed the “Law on mediation of the People’s Republic of China” last August with the purpose of building multiple layers of institutions for pursuing “a harmonious society.” An NPC spokesman indicated at the time that “mediation and reconciliation is the first line of defense against contradictions in society” (Sina.com, August 28, 2010; China.com.cn, August 30, 2010).
While police, prosecutor’s offices, courts, as well as party and government departments are charged with implementing tiaojie, the courts have been at the forefront of promoting Chinese-style reconciliation. Since 2009, Chief Justice Wang has instructed regional and grassroots-level judges to play a key role in persuading parties to civil conflicts to settle out of court. In some provinces, at least half of civil cases handled by the courts have been resolved through mediation instead of adjudication. Wang pointed out in last March’s SPC Report to the NPC that 65.29 percent of civil and business-related cases heard last year by courts of various levels were dropped in favor of mediation. This was 3.31 percent more than the comparable figure in 2009 (Xinhua News Agency, March 19; People’s Daily, March 20, Wall Street Journal, May 31). Indeed, Chief Justice Wang noted as early as 2009 that Chinese courts had the prime mission of “upholding [economic] growth, upholding people’s livelihood, and upholding [socio-political] stability.” “Judges are social workers as much as legal workers,” Wang asserted. “While judges should know how to use the law to handle cases, they should be even more conversant with ways and means of defusing social contradiction” (New Beijing Post [Beijing], March 12, 2009; Chinalawinfo.com [Beijing], March 12, 2009).
The substitution of the due process of law by mediation, however, has been criticized by experts as eroding the rule of law, and depriving citizens of their constitutional rights of being protected by legal and judicial institutions. Ong Yew-kim, an adjunct professor at Beijing’s China University of Law and Political Science, pointed out that tiaojie was, in fact, evidence of a rolling back of legal and judicial reform. “The professional status of the courts has been compromised since judges are asked to engage in the political task of upholding social harmony,” Ong said. “Ordinary Chinese who want to seek legal redresses may be turned away by the courts under the pretext of maximizing harmony.” Vice-President of Beijing’s Renmin University Wang Liming warned that legal professionals should “guard against the judicial tendency of putting excessive emphasis on mediation.” “Courts are not mediation organizations,” said Wang, a legal scholar and NPC member. “Putting mediation above adjudication is at variance with the social status and functions that the law has given our courts” (Caing.com, March 12; South China Morning Post, June 10).
Two recent cases of tiaojie, which have been handled by police in tandem with judicial organs, have underscored the dangers of putting harmony above the rule of law. In the run-up to the 22nd anniversary of the June 4, 1989 crackdown, the Tiananmen Mothers—a world-renowned NGO seeking justice for the massacre victims—disclosed that authorities in the capital had tried to “mediate” with the parents of a Tiananmen victim by offering them an undisclosed sum of money. The strings attached to this tiaojie ploy were that the parents would have to give up their right to sue the party and government for responsibility for the killings. In an open letter released on June 1, the Tiananmen Mothers said this attempt by the powers-that-be to seek a “private settlement” through paying hush money amounted to “desecrating the spirit of the June 4 victims and hurting the personal dignity of the victims’ relatives” (Ming Pao [Hong Kong], June 1; Voice of America, June 1; Radio Free Asia, May 31).
The other incident involves the hundreds of thousands of parents whose infants fell sick in 2008 and 2009 after consuming milk power tainted with melamine. Since then, efforts by the victims’ relatives—as well as by Zhao Lianhai, the well-respected head of an NGO representing the aggrieved parties—to take the manufacturers to court have been in vain. Attempts by four parents to seek compensation via Hong Kong courts were also unsuccessful. Zhao himself was sentenced last November to two-and-a-half years in jail for “inciting social disorder.” Since 2010, however, representatives of the China Dairy Products Association (CDPA) as well as relevant health and police departments have been putting pressure on concerned parents to consider out-of-court tiaojie. Last month, the CDPA announced that 270,000 families had accepted a total of 910 million yuan (US$) of compensation. Chinese and Hong Kong media have reported that as a result of pocketing the one-off “reconciliation fee,” the parents have given up their right to future legal action. Zhao, who was released on medical bail earlier this year, noted that “many families had no choice but to accept the meager settlement because they could not get a fair hearing in the courts,” (Ming Pao, May 11; Wen Wei Po [Hong Kong], May 16; Caixun.com [Beijing], June 9).
The substitution of due legal process by mediation is only one manifestation of the overall degeneration of judicial standards. That judges, together with public-security agents, have become an integral part of the CCP’s apparatus for imposing “democratic proletarian dictatorship” against its perceived enemies was evidenced by the heavy sentences that the courts have slapped on hundreds of dissidents and NGO activists since the late 2000s. While Chief Justice Wang has advocated mediation and reconciliation to promote harmony as an overall principle, the courts have worked hand-in-glove with police units to mete out stiff jail terms to dissidents in the apparent absence of sufficient evidence. For example, scholar and public intellectual Liu Xiaobo was sentenced in late 2009 to 11 years in jail for “inciting subversion of state power.” A year later, the pacifist activist, whose most famous statement is “I have no enemies,” was awarded the Nobel Peace Prize to world acclaim (The Guardian [London], January 12; New York Times, April 30).
A just-published book by Chinese University of Hong Kong Law Professor Mike McConville noted that judges and prosecutors had suffered from increasing “administrative interference” by parties including the police and the CCP Central Commission on Political and Legal Affairs (CCPLA), which exercises tight control over the police, procuratorates and courts. Rather than presuming the innocence of the accused, McConville wrote, “judges and prosecutors join hands with the police to make a case against suspects.” The professor cited one senior judicial official as saying that “judges naturally presume that the defendant is guilty” (South China Morning Post, May 12; CFR.org [New York], May 9).
From early 2010 onwards, scores of dissidents and activists who have run afoul of the authorities have simply disappeared. Foremost among the victims is human rights lawyer Gao Zhisheng, who was globally recognized for his pro bono services for groups ranging from exploited workers to members of underground churches. Gao dropped out of sight in April 2010 after having undergone more than three years of repeated harassment and detention by police and state-security agencies. (BBC News, January 28; New York Times, March 28). Moreover, a sizeable number of public intellectuals and NGO organizers have remained under house arrest even after they had formally served out their jail terms. The most famous case is that of “barefoot lawyer” Chen Guangcheng, who was released last September after having been jailed for four years for “disturbing public order.” The blind activist garnered international sympathy particularly for his work against the forced abortion of village women (Chinadigitaltimes.net, February 10; Christian Science Monitor, September 9, 2010). In all these instances, the courts have refused to accept writs filed by the dissidents’ lawyers. The situation has worsened considerably after a series of “color revolutions” struck the Middle East and North Africa early this year. Avant-garde artist Ai Weiwei “disappeared” in early April, and since then the police and the courts have refused to even talk to lawyers hired by Ai’s family members (HRW.org [New York], April 6; Reuters, June 2).
In a speech at Peking University last month, veteran legal scholar and reformer Jiang Ping expressed worries that “the emphasis on the principle of ‘stability overriding everything’ could engender the rule of man” instead of rule of law. “I often say that as far as the rule of law goes, there have been ups and downs in recent history,” he said. “Very often it’s one step backward and two step forwards.” The 81-year-old law professor warned, however, that in recent years, “it’s been one step forward and two steps backward.” “We have been retrogressing in the main, and this is a terrible phenomenon” (Caing.com, May 26; Beida Public Law Net, May 28). For cadres such as Chief Justice Wang, a former police officer and CCPLA bureaucrat who has never attended law school, however, legal and judicial niceties pale in comparison to the CCP’s overwhelming imperative to nip all destabilizing agents in the bud.
The Chinese Communist Party (CCP) administration’s push for mediation is understandable given the estimated 180,000 cases of riots, protests and disturbances that erupted in China last year (Bloomberg, June 13; Hk.msn.com, March 11). Since the spring, the country has been rocked by horrendous incidents including suicide bombings in several cities and prolonged confrontations between protestors and the People’s Armed Police in Inner Mongolia and Guangdong Province (See “Chinese Citizens Challenge the Party’s Authoritarian Tilt,” China Brief, June 3). The National People’s Congress (NPC), China’s legislature, passed the “Law on mediation of the People’s Republic of China” last August with the purpose of building multiple layers of institutions for pursuing “a harmonious society.” An NPC spokesman indicated at the time that “mediation and reconciliation is the first line of defense against contradictions in society” (Sina.com, August 28, 2010; China.com.cn, August 30, 2010).
While police, prosecutor’s offices, courts, as well as party and government departments are charged with implementing tiaojie, the courts have been at the forefront of promoting Chinese-style reconciliation. Since 2009, Chief Justice Wang has instructed regional and grassroots-level judges to play a key role in persuading parties to civil conflicts to settle out of court. In some provinces, at least half of civil cases handled by the courts have been resolved through mediation instead of adjudication. Wang pointed out in last March’s SPC Report to the NPC that 65.29 percent of civil and business-related cases heard last year by courts of various levels were dropped in favor of mediation. This was 3.31 percent more than the comparable figure in 2009 (Xinhua News Agency, March 19; People’s Daily, March 20, Wall Street Journal, May 31). Indeed, Chief Justice Wang noted as early as 2009 that Chinese courts had the prime mission of “upholding [economic] growth, upholding people’s livelihood, and upholding [socio-political] stability.” “Judges are social workers as much as legal workers,” Wang asserted. “While judges should know how to use the law to handle cases, they should be even more conversant with ways and means of defusing social contradiction” (New Beijing Post [Beijing], March 12, 2009; Chinalawinfo.com [Beijing], March 12, 2009).
The substitution of the due process of law by mediation, however, has been criticized by experts as eroding the rule of law, and depriving citizens of their constitutional rights of being protected by legal and judicial institutions. Ong Yew-kim, an adjunct professor at Beijing’s China University of Law and Political Science, pointed out that tiaojie was, in fact, evidence of a rolling back of legal and judicial reform. “The professional status of the courts has been compromised since judges are asked to engage in the political task of upholding social harmony,” Ong said. “Ordinary Chinese who want to seek legal redresses may be turned away by the courts under the pretext of maximizing harmony.” Vice-President of Beijing’s Renmin University Wang Liming warned that legal professionals should “guard against the judicial tendency of putting excessive emphasis on mediation.” “Courts are not mediation organizations,” said Wang, a legal scholar and NPC member. “Putting mediation above adjudication is at variance with the social status and functions that the law has given our courts” (Caing.com, March 12; South China Morning Post, June 10).
Two recent cases of tiaojie, which have been handled by police in tandem with judicial organs, have underscored the dangers of putting harmony above the rule of law. In the run-up to the 22nd anniversary of the June 4, 1989 crackdown, the Tiananmen Mothers—a world-renowned NGO seeking justice for the massacre victims—disclosed that authorities in the capital had tried to “mediate” with the parents of a Tiananmen victim by offering them an undisclosed sum of money. The strings attached to this tiaojie ploy were that the parents would have to give up their right to sue the party and government for responsibility for the killings. In an open letter released on June 1, the Tiananmen Mothers said this attempt by the powers-that-be to seek a “private settlement” through paying hush money amounted to “desecrating the spirit of the June 4 victims and hurting the personal dignity of the victims’ relatives” (Ming Pao [Hong Kong], June 1; Voice of America, June 1; Radio Free Asia, May 31).
The other incident involves the hundreds of thousands of parents whose infants fell sick in 2008 and 2009 after consuming milk power tainted with melamine. Since then, efforts by the victims’ relatives—as well as by Zhao Lianhai, the well-respected head of an NGO representing the aggrieved parties—to take the manufacturers to court have been in vain. Attempts by four parents to seek compensation via Hong Kong courts were also unsuccessful. Zhao himself was sentenced last November to two-and-a-half years in jail for “inciting social disorder.” Since 2010, however, representatives of the China Dairy Products Association (CDPA) as well as relevant health and police departments have been putting pressure on concerned parents to consider out-of-court tiaojie. Last month, the CDPA announced that 270,000 families had accepted a total of 910 million yuan (US$) of compensation. Chinese and Hong Kong media have reported that as a result of pocketing the one-off “reconciliation fee,” the parents have given up their right to future legal action. Zhao, who was released on medical bail earlier this year, noted that “many families had no choice but to accept the meager settlement because they could not get a fair hearing in the courts,” (Ming Pao, May 11; Wen Wei Po [Hong Kong], May 16; Caixun.com [Beijing], June 9).
The substitution of due legal process by mediation is only one manifestation of the overall degeneration of judicial standards. That judges, together with public-security agents, have become an integral part of the CCP’s apparatus for imposing “democratic proletarian dictatorship” against its perceived enemies was evidenced by the heavy sentences that the courts have slapped on hundreds of dissidents and NGO activists since the late 2000s. While Chief Justice Wang has advocated mediation and reconciliation to promote harmony as an overall principle, the courts have worked hand-in-glove with police units to mete out stiff jail terms to dissidents in the apparent absence of sufficient evidence. For example, scholar and public intellectual Liu Xiaobo was sentenced in late 2009 to 11 years in jail for “inciting subversion of state power.” A year later, the pacifist activist, whose most famous statement is “I have no enemies,” was awarded the Nobel Peace Prize to world acclaim (The Guardian [London], January 12; New York Times, April 30).
A just-published book by Chinese University of Hong Kong Law Professor Mike McConville noted that judges and prosecutors had suffered from increasing “administrative interference” by parties including the police and the CCP Central Commission on Political and Legal Affairs (CCPLA), which exercises tight control over the police, procuratorates and courts. Rather than presuming the innocence of the accused, McConville wrote, “judges and prosecutors join hands with the police to make a case against suspects.” The professor cited one senior judicial official as saying that “judges naturally presume that the defendant is guilty” (South China Morning Post, May 12; CFR.org [New York], May 9).
From early 2010 onwards, scores of dissidents and activists who have run afoul of the authorities have simply disappeared. Foremost among the victims is human rights lawyer Gao Zhisheng, who was globally recognized for his pro bono services for groups ranging from exploited workers to members of underground churches. Gao dropped out of sight in April 2010 after having undergone more than three years of repeated harassment and detention by police and state-security agencies. (BBC News, January 28; New York Times, March 28). Moreover, a sizeable number of public intellectuals and NGO organizers have remained under house arrest even after they had formally served out their jail terms. The most famous case is that of “barefoot lawyer” Chen Guangcheng, who was released last September after having been jailed for four years for “disturbing public order.” The blind activist garnered international sympathy particularly for his work against the forced abortion of village women (Chinadigitaltimes.net, February 10; Christian Science Monitor, September 9, 2010). In all these instances, the courts have refused to accept writs filed by the dissidents’ lawyers. The situation has worsened considerably after a series of “color revolutions” struck the Middle East and North Africa early this year. Avant-garde artist Ai Weiwei “disappeared” in early April, and since then the police and the courts have refused to even talk to lawyers hired by Ai’s family members (HRW.org [New York], April 6; Reuters, June 2).
In a speech at Peking University last month, veteran legal scholar and reformer Jiang Ping expressed worries that “the emphasis on the principle of ‘stability overriding everything’ could engender the rule of man” instead of rule of law. “I often say that as far as the rule of law goes, there have been ups and downs in recent history,” he said. “Very often it’s one step backward and two step forwards.” The 81-year-old law professor warned, however, that in recent years, “it’s been one step forward and two steps backward.” “We have been retrogressing in the main, and this is a terrible phenomenon” (Caing.com, May 26; Beida Public Law Net, May 28). For cadres such as Chief Justice Wang, a former police officer and CCPLA bureaucrat who has never attended law school, however, legal and judicial niceties pale in comparison to the CCP’s overwhelming imperative to nip all destabilizing agents in the bud.
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