Wei
Jingsheng Foundation News and Article Release Issue: A655-W409
魏京生基金会新闻与文章发布号： A655-W409
Release
Date: September 17, 2011
发布日：2011年9月17日
Topic:
Retrogression of the Legal System in China -- Wei Jingsheng
标题：法制的倒退 -- 魏京生
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Language Version: Chinese (Chinese version at the end)
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Retrogression
of the Legal System in China
--
Wei Jingsheng
The
U.S. State Department spokesperson issued a statement to a question taken at
the August 30, 2011 daily press briefing regarding the Chinese Government's
effort to modify its Criminal Procedure Law to legalize enforced disappearance,
which is neither consistent with international human rights law, nor consistent
with other provisions in Chinese law.
The United States urged the Chinese government to respect Chinese
citizens' rights when it makes legal revisions.
Many
friends ask: What is enforced disappearance? From an academic perspective, it is of course is a
non-voluntary and forced disappearance.
From an international perspective, the United Nations has a special
Working Group on Enforced or Involuntary Disappearances. Its role is to monitor and criticize
those illegal governments and cliques that engage in forced disappearance, in
an effort to protect ordinary people against persecution by the rich and
powerful.
In
other words, the Special Working Group tries to force those officials or
powerful groups to comply with the law, and to be reasonable. If a person is forcefully detained
somewhere such that even the family and community do not know his whereabouts,
who could tell if the authority or group which holds the person is
law-abiding? Who could interfere
with it? It could reach the degree
that nobody knows if or when the person disappeared forever. Thus, it contributes to lawlessness and
encourages treating people as non-human.
Regardless whether a person is good or bad, a civilized society should
treat anyone as a person. This is
human rights.
Human
rights is not a vague and general theory, but something closely related to the
presence of each of us. To say it
bluntly, human rights is about people being counted as animals or not, which is
not a trivial thing. Human rights
is like the air; usually you do not feel it is important until you lose it. Then you can appreciate its vital
importance. This time, the Chinese
Communist regime is changing the law actually in open violation of its own
laws, by legalizing the illegal detention and enforced disappearance. This is a huge setback of the Chinese
legal system in the past three decades.
It
is a bit like what happened before the Cultural Revolution in China. First, the law was openly violated, and
then gradually society entered the famous "complete lawlessness"
state as claimed by Jiang Qing, Mao Zedong's wife. Not only common people, even various governmental and party
officials found it hard to escape this persecution of "complete
lawlessness". There was no
place for one to make a rational argument, or even use the sophistry of the
Chinese Communist Party. That was
because you simply did not exist.
You had disappeared.
An
example back in the Cultural Revolution was Liu Shaoqi. As the President of China, Liu Shaoqi
was also forced to disappear. No
one knew where he was. No one knew
how he was. Even no one knew when
he died. Only 10 years later when
he was "redressed", did we learn that he had been persecuted to death
long ago. Does not the President
of a country have a lot of power?
It was useless. As long as
he was forced to disappear, he would not be able to reason with those guards
who only care about discipline. He
would be treated as an animal, to be dealt with in whatever way they like.
At
least Liu Shaoqi was arrested. So
at least people still knew that he was in the hands of the judiciary, knew that
he was in prison. In 1994, the
public security authority in China invented a so-called "residence under
surveillance", which is called "forced disappearance"
today. I maybe the first
person who was forced to disappear in the name of "residence under
surveillance". At that
time, I was detained by the authorities.
They really could not find a suitable accusation. The Procuratorate did not approve, not
only the arrest, but even the detention.
That was because the Communist authorities really failed to provide a
legitimate reason, yet they were unwilling to let me go home. Even though I made repeated requests,
they refused to inform my family.
I threaten that I would sue them for illegal detention.
There
was no need for ordinary police to bear such a serious charge. Their superiors had to find a
legitimate reason in order to continue my detention without informing the
outside world. The only
capacity the Public Security Bureau authority had was the "residence under
surveillance". Thus they
offered a piece of "residence under surveillance", but would not let
me return to my own residence.
When I strongly protested against this blatant practice of lawlessness,
they claimed that the condition of the detention place was no worse than my
home. I strongly urged them to
notify my family according to law.
But they responded that since my case had not entered the judicial
process, it was unnecessary to carry out the detention according to law. In short, with the approval of the
highest authorities, they could be as unreasonable as bandits.
At
that time, I was already under forced disappearance and incommunicado, thus I
could do nothing anymore. Eighteen
months later, when my case was sent to the courts, I asked the judge to at
least count this eighteen months.
The judge said: since the detention was not carried out according to
law, they do not know how to calculate the sentence accordingly. Thus, my detention became simply a
waste of my time. But, fortunately
I was still alive and there were law enforcement agencies that did not agree
with the lawlessness of the people who detained me. So it was not the worst.
The
worst came when the Chinese authority published the amendments to the Criminal
Procedure Law on August 30, 2011.
Now, it is legal to engage in forced disappearance. Authorities can detain people in secret
places without notifying the family and the outside world, to the degree that
no one knows even when one is permanently disappeared. If you are as lucky as Liu Shaoqi, then
at least people will know where you once were when your case is redressed 10
years later. But what if you can
never enter the judicial process?
Then you are disappeared forever.
What kind of law is a law that makes it legal to evaporate a person?
This
is kind of law that meets the concept of the Chinese Communist Party. The law of the Communist Party is used
to persecute people and to combat the enemy, rather than to set boundaries
defining people's interactions and restrict the powerful against innocent
civilians. The elite of the
Communist Party who are rich and powerful often accuse people who are defending
their rights as unruly people. In
fact, this type of bandit-style legal concept of the Communist Party is the
true logic of the unruly shyster and tyrant.
During
the almost 20 years since I was forced to disappear, this gangster logic has
been inherited and developed.
While the level of the officials detained have not reached to the level
of Liu Shaoqi, numerous high and low ranking officials have been illegally
detained these years, under a name just like that "residence under
surveillance": "double designation". The Communist Party can illegally detain countless of its
members outside of the judicial system, as if one ceases to be a person with
legal entity when one joins the Communist Party. This situation could be described by the now fashionable
wording of the Communist Party: Do not take the law as a shield.
The
average Chinese are even less than the Communist Party members. Recently, there is a surge of people
under forced disappearance, especially many lawyers. Further, they are subjected to torture and serious
threat. Not only is there no place
to reason with authorities during the detention, one even does not dare to
reason when one is released. There
is already no law, but simply a group of kidnappers. Now, by legalizing this logic of the kidnappers, the regime
has become outright bandits. They
really achieved the ideal of Mao Zedong and Jiang Qing: complete lawlessness.
I
think that if the Cultural Revolution repeated again, the people will not
expect the Communist Party to correct its own wrongs anymore. The reason may be explained by the old
Chinese saying: People will treat their oppressors the way they have been
treated. History cannot simply
make the motion of a circle and stay in the same place.
To
hear Mr. Wei Jingsheng's related commentary, please visit:
http://www.weijingsheng.org/RFA/RFA2011/WeiJS110902legalretrogression.mp3
(Written
on September 1 and recorded on September 2, 2011. Broadcasted by Radio Free Asia.)
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中文版
Wei
Jingsheng Foundation News and Article Release Issue: A655-W409
魏京生基金会新闻与文章发布号： A655-W409
Release
Date: September 17, 2011
发布日：2011年9月17日
Topic:
Retrogression of the Legal System in China -- Wei Jingsheng
标题：法制的倒退 -- 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/report2011-09/WeiJS110917legalretrogressionA655-W409.htm
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法制的倒退
-- 魏京生
美国国务院发言人就八月三十号例行记者会上有关中国修改刑事诉讼法草案的问题发表了看法，认为这是将强迫失踪合法化。这既不符合国际人权法，也不符合中国自己的法律。美国还督促中国政府在制定法律的时候，尊重公民的人权。
很多朋友会问：强迫失踪是什么？从学术上讲，这当然和自己玩失踪相反，是不自愿的、被强迫的。从国际上讲，联合国有个专门的工作组，有关强迫失踪的工作组，专门监督和抨击那些搞强迫失踪的、违法乱纪的政府和集团，保护普通老百姓不受那些有钱有势的人迫害。
换个角度说，它就是强迫那些官方或者有势力的集团必须遵守法律，必须讲理。如果一个人被强迫关在某个地方，家人和社会都不知道他的下落，而那些关押他的当局或者集团是不是遵守法律，谁又能够知道，能够干涉呢？甚至永远失踪了也没人知道。这就助长了违法乱纪，助长了不把人当人对待。文明社会对待任何人，不管他是好人还是坏人，都必须把他当人对待。这就是人权。
人权可不是什么空泛的理论，这和我们每个人的存在息息相关。说直白一些，就是我们到底算人还是算牲口。别人把我们当人还是当牲口对待，这可不是件小事。人权就像空气一样，平时你不会觉得它有多重要。但一旦失去了它，你才能体会到它不可或缺的重要性。中国共产党这次修改法律，居然公开违反自己的法律，把非法拘禁和强迫失踪合法化。这是中国三十年来法制的一个巨大的倒退。
这有点像文革来临之前的模样：先是法律被公开地违反，之后渐渐就进入了江青那个著名的“无法无天”。不但老百姓，就是大大小小的党政官员们，也难逃这个无法无天的迫害。人们根本没地方讲理去。正理没地方讲，就是共产党的歪理也没地方讲。因为你根本就不存在，失踪了。
远的例子有文革。贵为国家主席的刘少奇，也被强迫失踪了。没有人知道他在哪里，也没人知道他怎么样。死了都没人知道。直到十年后给他平反了，大家才知道他早就被迫害致死了。国家主席权力大不大？没用。只要把你强迫失踪了，你和那些只知道纪律不知道讲理的看守们，没理可讲。你就像个牲口一样，随便人家怎么对待。
刘少奇毕竟还是被逮捕了。所以至少人们还知道他在司法机关手里，知道他在监狱里。从1994年开始，公安机关就发明了现在被叫做强迫失踪的，所谓的“监视居住”。我可能是第一个被以监视居住的名义强迫失踪的人。当时我被当局扣押了，他们却实在找不出罪名。检察院不批准，不但逮捕，连拘留也不批准，因为中共当局实在提不出合法的理由，可却又不愿意放我回家。甚至我一再要求，当局也拒绝通知家属。我就提出要控告他们非法拘禁。
普通警察们没有必要承受这么严重的罪名。他们的上级要想继续扣押我而不通知外界，就必须找出个合法的理由来。他们公安局的权限只能开出监视居住证，于是就开出了一张监视居住证，但就是不准我回家。我强烈抗议这种公然违法乱纪的做法，他们就狡辩说：这个宾馆条件不比你家差。我强烈要求依法通知家属，他们就说：没有进入司法程序，所以不必按法律执行。总之就是，有了最高当局的批准，就可以像土匪一样不讲理。
当时，我已经被强迫失踪，与外界隔绝了，什么办法也没有。直到十八个月后进入了司法程序，我要求法官至少把这十八个月计算刑期。法官说：那不是依法执行的行为，不知道按什么条件计算刑期。所以，这就算白关了。但还好，我的性命还在，而且还有执法机关不承认关押方面的违法乱纪的做法。所以还不是最糟糕的。
有了2011年8月30日公布的刑诉法修正案，事情才算是到了最糟。现在强迫失踪就是合法行为了。当局可以不通知家属和外界，把人关押在秘密的地点，甚至永久性的失踪也没人知道。如果你像刘少奇那样幸运，十年后平反的时候还能知道你曾在哪儿。但如果你永远都不能进入司法程序呢？你不是就得永远失踪了嘛？合法地把人给蒸发了，这也叫法律？
这就是共产党概念上的法律。共产党的法律是用来整人的，用来打击敌人的，而不是人与人之间交往的界限，不是限制权势保护良民的法律。有钱有势的共产党精英们常常骂维权的老百姓是刁民。其实共产党这种土匪式的法律概念，才真正是刁民、讼棍和暴君的逻辑。
从我被强迫失踪到现在的近二十年间，这种强盗逻辑被继承和发展了。虽然还没到刘少奇那个级别，但这些年来大大小小无数的官员被非法拘禁了。其名义和监视居住同样：双规。党组织可以在法律程序之外非法拘禁党员，似乎入了党就不再是法律意义上的人了。用时下共产党的时髦说法就是：不要拿法律当挡箭牌。
老百姓则连党员都不如。被强迫失踪的人数最近特别多，包括许多律师。而且他们还遭受了酷刑和严重的威胁。不但在里边没地方讲理，出来也让你不敢讲理。这已经没有什么法律了，简直就是一伙绑匪。现在把这种绑匪的逻辑合法化，这个政权就是彻头彻尾的土匪化了。他们真正地实现了毛泽东和江青的理想：无法无天。
如果再来一次文革，恐怕老百姓不会让共产党自己来拨乱反正了。理由是以其人之道，还治其人之身。历史不会原地转圈。
聆听魏京生先生的相关录音，请访问：
http://www.weijingsheng.org/RFA/RFA2011/WeiJS110902legalretrogression.mp3
（撰写于2011年9月1日，录音于2011年9月2日。自由亚洲电台播出。）
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