Wei
Jingsheng Foundation News and Article Release Issue: A635-W396
魏京生基金会新闻与文章发布号： A635-W396
Release
Date: June 19, 2011
发布日：2011年6月19日
Topic:
The Way Out for China (Part XXXVII): Using the Will of the Communist Party to
Replace Law will not Just Victimize the Average Chinese, But Also the Communist
Party's Own Officials -- Wei Jingsheng
标题： 《中国的出路》之三十七：以共产党的意志代替法律，受害的不仅仅是老百姓，也将包括中共官员 -- 魏京生
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The
Way Out for China (Part XXXVII): Using the Will of the Communist Party to
Replace Law will not Just Victimize the Average Chinese, But Also the Communist
Party's Own Officials
--
Wei Jingsheng
Recently,
we have become more concerned with two major legal cases: one is the
disappearance of artist Ai Weiwei, the other is the case of Lawyer Li Zhuang of
Chongqing. These two cases appear
to have little connection. Yet, in
fact, they have very direct internal association. That association is because the policy of the Chinese
Communist Party is turning left -- step-by-step, it is returning to the
full-scale dictatorship of the Cultural Revolution era. The characteristic of a full-scale
dictatorship is the removal of legal protection, replacing it with the
capricious will of the Chinese Communist Party. The will of the Communist Party at all levels will decide
everything. Using an honest
statement by Mao Zedong's wife, Jiang Qing, it is "lawlessness to the
degree of ignoring god".
Using the standard statement by the Communist Party nowadays, it is
"do not try to use the law as a shield".
Let
us look at the case of Ai Weiwei first.
Even China's own Criminal Procedure Law has clearly stated that in
depriving citizens of their liberty one must notify their families first;
otherwise, it is illegal detention.
According to the United Nations it is "enforced
disappearance". After Ai
Weiwei disappeared for more than two weeks without knowledge of his whereabouts
by his family members, not only did China's State Council issue statements
continuously, even the official media of the Communist regime made plausible
remarks about him. Therefore, the
dictatorial authority that detained him is already guilty of illegal
detention. Please notice that they
are not only suspected of, but in fact have given evidence of committing the
crime of illegal detention.
Even
though they may catch up with formalities later on, even backdating the forms
will be useless. There are only
two essential conditions for this crime: the first is to deprive personal
freedom, and the second is not to inform family members. In accordance with the provisions of
Criminal Procedure Law, no matter what authority they are, if they meet these
two conditions, then it is illegal detention. It seems that the Chinese Foreign Ministry and the official
media are framing the Chinese public security department. They announced the news of Ai Weiwei's
detention, which served as a proof of the illegal detention by the public
security department.
However,
the Chinese public security department does not care. More one decade ago, they already used so-called
"internal regulations" to make Criminal Procedure Law mean
nothing. This approach is called
"residence under surveillance".
According to Chinese Criminal Procedure Law, "residence under
surveillance" is the lightest level of measure restricting personal
freedom. That measure means monitoring the person with the premise
of not actually depriving their freedom of movement. Therefore, the procedure does not need the approval of a
Procuratorate or court. After all,
in China, this requirement is equal to nothing. That is because official surveillance does not need
notifying any other party anyway.
In
1994, the Chinese Communist regime detained me, but did not get the approval
from the Procuratorate. Thus, with
the approval of higher authorities, they made up a new interpretation about
this "residence under surveillance". According to their explanation, it is: we arrested you and
put you "under surveillance"; you are living outside of an official
jail, thus it is a "residence".
Combining these two actions together, it is called "residence under
surveillance". Later on, even
the courts did not acknowledge this deprivation of liberty. Thus, the judicial practice
"legalized" this illegal detention.
The
police who arrest people do not really break the law, it is the Chinese
Communist regime that breaks the law; it is the dictatorial authority carrying
out the illegal actions breaking the laws themselves. The Chinese Communist Party created a law that enables it to
violate the law while carrying out the law. These plays by the Chinese Communist Party sound like tongue
twisters. In reality, however, it
is not as fun as tongue twisters at all.
When this "residence under surveillance" is carried out
against "enemies" within the party, it is called "double
designations". It suggests
that the Communist officials in trouble are to confess within the
"designated time" at the "designated place", but it ignores
the reality that these officials are illegally detained without personal
freedom. Is not that the same as
"residence under surveillance" against the average Chinese?
The
case of Li Zhuang of Chongqing is even more fancy. Li Zhuang is a lawyer who grabbed the evidence of the
Communist Party violating law and created wrongful injustice. Thus, he offended the law of the
Communist Party that it would be violating law while carrying out law. Lawyer Li was thrown into jail by the
Party Secretary Bo Xilai of Chongqing.
How to deal with these lawyers who become an obstacle for the Communist
Party's violation of law while carrying out law? Secretary Bo now created a new practice, called
"self-incriminating". In
accordance with the provisions of Criminal Procedure law, one cannot be found
guilty through only statements without evidence. However, Secretary Bo's power is bigger than the law. When they played the trick to make Li
Zhuang plead guilty, of course he is guilty, evidence or no evidence.
As
lawyer Li's three-year sentence comes to an end, his release from the jail
could spell trouble for Secretary Bo.
So what should be done?
That is easy. If he could
be framed the first time, why not the second? The first time was experimental, not presumptuous, and thus
still needed a guilty plea in court as a cover up. But for the second time, even that step could be saved. If he said he was guilty, he must be,
even if he really was not. Now
this practice completely fits the need for the full-scale dictatorship, and
thus the Communist high officials would line up to support Secretary Bo.
It
is simply history repeating itself.
The full-scale dictatorship of Mao Zedong before the Cultural Revolution
also received support up the line from the Communist high officials. However, what followed was that the
dictatorship started to eat into this lineup of the officials themselves. The westerners call it "shooting
oneself in the foot". The
Chinese people call it "one dies as the punishment from the condemnable
action of oneself". These
people who want to use unreasonable measures against others do not know what to
do when the same unreasonable measures are use against themselves.
In
Mao's time, the Chinese president Liu Shaoqi thought that if he was in full
support of the Communist Party Secretary Mao Zedong, then he would be spared of
political elimination. What he did
not realize was that his very presence was an obstacle to others and made
others' eyes sore enough to compose an offence. For Communist high officials who will have to relinquish
their power, how could they know that their own children would not offend the
future premier Bo? As long as one
creates a judicial custom for illegal detention and judicial decisions that
violate law, the sword of Damocles shall hang over everyone's head. When the people in power are happy, or
unhappy, they could just as easily kill you as the next Liu Shaoqi, or Peng
Dehuai; they could throw your sons into jail as the next Ai Weiwei, or Li
Zhuang.
2500
years ago in China, there was the legal pioneer Shang Yang created law himself,
yet he was not able to escape the sanction of law himself. Supporting Communist Party Secretary
Bo's "Sing Praises for the Red and Hit the Black Society" Movement is
not enough to exempt one from punishment in the future. As long as one has participated in
manufacturing the law which enables the authority to violate law while carrying
out law, one is putting oneself in a position that anyone else could arrest him
without reason. Before the
Cultural Revolution, people mistakenly thought that unreasonable laws are only
applicable to the average people.
The actual result was that these laws were used to deal with political
enemies first. Chinese President
Liu Shaoqi himself was thrown into jail and died miserably there. The conclusion is simple: official rank
is never high enough; and any amount of gold could not make one feel wealthy
enough.
There
was the case of Zhou Bo, who made significant contributions in establishing the
Han Dynasty 2300 years ago. Zhou
had no desire for power, but simply wished retirement as a wealthy man. Yet, he could not live in peace despite
his credit to the country and simple desire to live. Why so? That
was because if the practice law could be unreasonable to the others, why should
he be spared? Such a simple truth
sounds like a tongue twister now.
The average person can understand easily, but not these smart
officials. They have been blindly
duplicating the mistakes that other smart officials made years ago. Indeed, in this world, there are many
idiots who think themselves smarter than everyone else.
To
hear Mr. Wei Jingsheng's commentary, please visit:
http://www.weijingsheng.org/RFA/RFA2011/WeiJS110420ChinaWayOut37lawless.mp3
(Written
and recorded on April 20, 2011.
Broadcasted by Radio Free Asia.)
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中文版
Wei
Jingsheng Foundation News and Article Release Issue: A635-W396
魏京生基金会新闻与文章发布号： A635-W396
Release
Date: June 19, 2011
发布日：2011年6月19日
Topic:
The Way Out for China (Part XXXVII): Using the Will of the Communist Party to
Replace Law will not Just Victimize the Average Chinese, But Also the Communist
Party's Own Officials -- Wei Jingsheng
标题： 《中国的出路》之三十七：以共产党的意志代替法律，受害的不仅仅是老百姓，也将包括中共官员 -- 魏京生
Original
Language Version: Chinese (Chinese version at the end)
此号以中文为准（英文在前，中文在后）
如有中文乱码问题，请与我们联系或访问:
http://www.weijingsheng.org/report/report2011/report2011-06/WeiJS110619ChinaWayOut37lawlessA635-W396.htm
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《中国的出路》之三十七：以共产党的意志代替法律，受害的不仅仅是老百姓，也将包括中共官员
-- 魏京生
最近大家比较关心的重大案件有两个：一个是艾未未失踪的案件，另一个就是重庆李庄的案件。这两个案件看上去没什么联系，其实有着很直接的内在联系。这种联系就是中共的政策向左转，正在一步步地走回到文革时代的全面专政。全面专政的特点，就是取消法律的保障，用共产党的意志代替法律。各级党委的意志决定一切。用江青的大实话说，就是和尚打伞，无法无天。而用当今中共的标准说法，就是不要想拿法律作挡箭牌。
让我们先看看艾未未的案件。中国的刑事诉讼法规定得非常清楚：剥夺公民的人身自由必须通知家属，否则就是非法拘禁。或者用联合国的通融的说法，叫做强迫失踪。艾未未被失踪了好两个星期，不但中国国务院连续地发表了说法，连中共官方媒体都振振有词地说三道四，那么扣押他的专政机关就已经犯了非法拘禁罪。请大家注意：他们不是涉嫌，而是证据确凿地犯了非法拘禁罪。
即使事后补办手续，甚至倒填日期也没用了。因为这项罪名只有两个必备的条件：第一就是剥夺了人身自由，第二就是没有通知家属。按照刑事诉讼法的规定，无论你是什么机关，只要符合这两条，就是非法拘禁。中国的外交部和官方媒体貌似是在陷害公安机关。他们公布了艾未未被扣押的消息，就等于是证明了中共公安机关的非法拘禁。
但是公安机关无所谓。他们早在十几年前，就已经利用所谓的内部规定，把刑事诉讼法虚无化了。这个方法叫做监视居住。按照刑事诉讼法的规定，监视居住是最轻一个等级的限制人身自由的措施。这个措施就是在不剥夺活动自由的前提下，进行监视，因此不需要检察院或者法院的批准。在中国，这项规定等于没有。因为官方监视任何人的时候都不需要通知对方。
1994年，中共扣押了我，可是却得不到检察院的批准。于是，在上级机关的批准下，就使用了对监视居住的新的解释。用他们的解释就是：把你抓起来监视着，没进监狱就算是居住。这就是监视居住。而且事后法院也不承认剥夺了人身自由。于是，这个司法惯例就把非法拘禁合法化了。
警察们抓人并不犯法，是中共在犯法，是专政机关在执法犯法。共产党制造了执法犯法的法律。共产党的花样玩得，让人听起来像绕口令。现实可不像绕口令那么好玩。监视居住发展到对付党内的敌人，就叫做双规。听起来只是在规定的时间和地点交待问题，而省略了剥夺人身自由的非法拘禁的实际情况。这不就是对老百姓所施行的监视居住吗？
重庆李庄的案件就更花哨了。李庄是个律师，抓住了共产党违法乱纪制造冤案的把柄。于是，这就触动了共产党执法犯法的法律，被重庆的薄书记抓进了监狱。怎么样对付这帮妨碍中共执法犯法的律师呢？薄书记又创造了一个新的惯例，叫做自我认罪。按照刑事诉讼法的规定，只有口供而没有证据，不能认定有罪。可是薄书记的权力比法律大。只要骗得李庄认罪，他当然就是有罪了。
眼看三年刑期即将到期，这个人出来以后不太好对付。怎么办？好办。既然第一次可以栽赃，第二次为什么不能？第一次还在试验阶段，不敢放肆，还需要来个法庭认罪作掩饰。第二次可能连这个都省了。说有罪，就有罪，没有也有。这就彻底符合全面专政的需要了，也就彻底地得到了中央大员们排着队的支持。
这简直就是历史的重演。文革之前毛泽东的全面专政，也是得到了中央大员们排着队的支持。随后专政就排着队地降临到了这些大员们自己的头上。用一句西方谚语说，叫做搬起石头砸了自己的脚。用中国老百姓的话说，叫做自作孽，不可活。用不讲理来对付别人的人，都不会想到自己面对不讲理时该怎么办。
刘少奇觉得自己全面支持毛泽东，总该不会整到自己的头上了吧。他没想到他的存在就挡了别人的路，让人看着不舒服。现在要退位的大员们，怎么会知道自己的儿子会不会得罪将来的薄总理呢？只要创造了可以非法拘禁和违法判决的司法惯例，所有人头上就都悬着一把达摩克利斯之剑。掌权者只要不高兴了，或者高兴了，你就会成为下一个刘少奇、彭德怀；你儿子就可能成为下一个艾未未、李庄。
即使是商鞅自己立的法律，他也没有逃脱法律的制裁。支持唱红打黑并不能成为免罪牌。既然参与了制造执法犯法的法律，你就把自己放在了可以被人家不讲理对付的地位上。文革之前，人们就错误地以为不讲理的法律只是用来对付小老百姓的。结果，首先就会用来对付政敌。刘少奇本人就被中共关入大狱，不明不白地死去。道理很简单：官位永远不够用，财产永远不嫌多。
汉朝的大功臣周勃，不想争权，仅仅想当个退休的富家翁也不可得。为什么呢？就是因为法律既然可以不讲理，为什么就必须对你讲理呢？这么简单的道理，确实听起来像是绕口令。老百姓都能听明白，倒是利令智昏的聪明人永远要犯重复的错误。这个世界上确实有一批自以为高素质的蠢货。
聆听魏京生先生的相关录音，请访问：
http://www.weijingsheng.org/RFA/RFA2011/WeiJS110420ChinaWayOut37lawless.mp3
（撰写并录音于2011年4月20日。自由亚洲电台播出。）
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