Wei
Jingsheng Foundation News and Article Release Issue: A726-W456
魏京生基金会新闻与文章发布号： A726-W456
Release
Date: August 11, 2012
发布日：2012年8月11日
Topic:
The Way Out for China (Part LXV): Gu Kailai’s Murder Case Reveals More about
Communist China’s Legal System -- Wei Jingsheng
标题：《中国的出路》之六十五：从谷开来杀人案，再谈法制是根本 -- 魏京生
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The
Way Out for China (Part LXV): Gu Kailai’s Murder Case Reveals More about
Communist China’s Legal System
--
Wei Jingsheng
The
Gu Kailai and Zhang Xiaojun murder trial, which is affiliated with the (her
husband) Bo Xilai case, went on trial at the Hefei Intermediate People's Court
in Anhui Province on August 9.
This case has received worldwide media attention, as well as a lot of
discussion and suspicion from both the international media and Chinese
netizens.
The
discussion in the international media leans toward problems this trial
had. According to the customary
thinking of a society that follows a rule of law, how could an affiliated case
be determined before the main case even enters into the legal procedure? Regardless whether it was the main
legal case or the affiliated one, why wasn't the corruption case that led to
the murder presented? Why did that
case simply disappear? There are
many questionable issues that are too many to list.
There
is a detail that the foreigners have not paid attention to that the Chinese
people also think is unimportant, which is that obviously, the trial officials
refused the defense lawyers hired by Gu's family according to legal
procedure. However, the Chinese
government's report stated that Gu confirmed the lawyers appointed by the
government. This statement reveals
the rule of law is going backwards in China.
Thirty-three
years ago when the Communist government put me on trial, I had a heated
argument with the court, regarding my right to get defense lawyers for
myself. However, to the end, I was
not able to get my own lawyers.
That was because that time was the beginning of the establishment of
rule by the law, but the court was still accustomed to manipulating the trial
according to the previous rules of the lawless era in order for the authority
to mislead people. Such
manipulation was learned from the Stalin era of the former Soviet Union, and
was retrogression from the traditional Chinese rule of law. Even at that time, the Chinese people
spurned such action.
However,
when I was put on trial the second time 17 years ago, there was already slight
progress with the rule of law in China.
Though it was still not allowed for the public to attend, though there
was still no one from the Procuratorate in the court, though the conviction was
already determined before the court opened, though it was still an operation in
a black box by the Politburo of the Communist Party, but the Communist
government at least pretended to follow the rule of law: I was able to
designate the lawyers I wanted.
Thus, the proportion of that black box operation was greatly reduced,
and my family and the outside world were able to know the contents of the files
regarding my case. Thus, there was
a certain degree of supervision over that black box operation, even though it
was only after the fact.
For
a murder case that has less excuse for secrecy than an
"anti-revolutionary" case, the Chinese authority still wants to do
their black box operation. So be
it. But why does it have to be
kept a secret? The only
interpretation is that there are some things that need to be concealed even
though it is against the law.
According to the official announcement the cause of the murder was due
to economic disputes. Then what
were those economic disputes? Were
they unrelated to corruption?
These are the questions that both the international society and the
Chinese people are asking.
Before
this trial, corruption cases of two previous Politburo members could be
investigated, even thought they were done according to the custom of black box
operation of the Communist Party.
Then why isn't the corruption problem of the Bo Xilai case investigated
here? If there is no corruption
problem with Gu Kailai's case, which is closely associated with the Bo Xilai
case, then to the least the corruption problem of Bo's case is optional. This "uncertainty" will be
conducive to the bargaining that is coming up within the Communist leadership.
Another
possibility is that the corruption case implicated a broad scope, to the degree
that when one pulls out the carrots, one gets mud all over. Thus, the corruption has to be
"harmonized" during this black box operation. In this way, not only is the corruption
harmonized, but it also leaves room for bargaining over the murder case. As a defined murderer, Go Kailai was not
handcuffed when she was in court, nor did she present any defense for herself
to all sorts of strange questions from the court, nor could her family members
appear in the court despite the premise of permission. All these appearances suggest a
standard Stalin-style show trial.
Later
declassified information from the Soviet Union illustrated an exchange behind
the scenes for Nikolai Bukharin to admit charges that Joseph Stalin imposed on
him. Using Bukharin's wife and
young son as hostages, Stalin was able to make Bukharin admit all the charges
that everyone knew were absurd.
Was Gu trying to protect her son and husband? Were there a lot of persons associated with the case
protected? This is not a court
trial, but simply a chain set, that is qualified to be a traditional drama
where even the emperor is involved in the conspiracy case.
This
Gu Kailai case is just like that of Bukharin. Besides oral confession, it lacks main evidence to prove the
facts. The evidence that was
offered was bloody, but was mostly indirect and did not prove that the specific
person Gu committed the murder in her hands. Yet, why didn't this well-known lawyer Gu dare to defend
herself therefore? It is because
she knew the darkness of the Chinese justice system. If the trial were in the United States, she surely would use
the insufficient evidence to defend herself, and certainly would not
self-incriminate, and thus create a case of injustice for herself.
This
is the real difference between the American judicial system that she attacked
as having low efficiency, and the Chinese judicial system that she praised as
having high efficiency. Is it more
important to have a judicial process that is fast, efficient, and low-cost, or
a judicial process that is fair and honest? It is the fundamental difference between the normal rule of
law and the "rule of law" of a totalitarian system.
In
accordance with the traditional Chinese culture, and most cultures of the
world, fairness and honesty are the most important principles of justice. All other conditions and processes must
take these first principles as the standard. When there is conflict, the other conditions and processes
must be sacrificed to guarantee fairness and honesty. Yet, only the Communist countries have put these principles
at a not so important priority in the design of their judicial systems.
According
to the public explanation of the Communist Party in China, the law is the
weapon in the hands of the people, to use against the others. So which people can effectively use
this weapon? Of course, it is the
party that has more power - who has more power, then who has the right to use
these weapons. Gu Kailai had her
reasons to despise the judicial system of the USA. That was because she thought herself as one of the righteous
rulers. So from the perspective of
those in power, the judicial system in the USA surely is not as convenient as
the one in China. In the United
States, people can effectively use the legal system to protect themselves. But in China, when these officials lose
their judicial privilege, they will not feel free.
In
China, the judicial system of the Communist Party gives those in power the
greatest freedom, which is the fundamental reason that ordinary people do not
get protected. Yet, those in power
still feel very strange: how could it be that the ordinary people try to take
the law as a shield? This
awakening does not meet the judicial principles of Communism.
People
like Gu Kailai, who has now lost the asylum of the power and become an ordinary
person, will only learn through her own experience how horrible this efficient
and inexpensive judicial system is.
As a well-known big lawyer, not only couldn't she protect her own son
and her husband, she does not even have the right to seek survival for herself
now. Regardless whether Gu Kailai
murdered someone or not, this show trial has demonstrated that the current
Chinese judicial system, in the style of the medieval inquisition, is not only
uncivilized and non-democratic, but even worse than the traditional Chinese
judicial system that had been in effect for more than 2,000 years prior to
Communist rule. The traditional
Chinese system stressed that "a prince who broke law must be punished in
the same way as the common person", and everyone should be able to use law
as a shield for themselves.
To
hear Mr. Wei Jingsheng's related commentary, please visit:
http://www.weijingsheng.org/RFA/RFA2012/WeiJS120810ChinaWayOut65LegalInstitute2.mp3
(Written
on August 9 and recorded on August 10, 2012. Broadcasted by Radio Free Asia.)
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中文版
Wei
Jingsheng Foundation News and Article Release Issue: A726-W456
魏京生基金会新闻与文章发布号： A726-W456
Release
Date: August 11, 2012
发布日：2012年8月11日
Topic:
The Way Out for China (Part LXV): Gu Kailai’s Murder Case Reveals More about
Communist China’s Legal System -- Wei Jingsheng
标题：《中国的出路》之六十五：从谷开来杀人案，再谈法制是根本 -- 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/report2012/report2012-08/WeiJS120811ChinaWayOut65LegalSystem2A726-W456.htm
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《中国的出路》之六十五：从谷开来杀人案，再谈法制是根本
-- 魏京生
受到全世界媒体关注的薄熙来案件的附属案件，谷开来、张晓军杀人案，于八月九号在安徽省合肥市中级法院开庭审理。引来了国际媒体和中文网络上的一片议论和猜疑。
国际媒体的议论，偏重于问题。按照法治社会的习惯思维，主案还没进入程序，怎么附属的案件倒是先要定案了？不管主案还是附属案件，怎么引起杀人的腐败案没有了，消失了？有很多很多不胜枚举的疑点。
有一个外国人没注意，而中国人认为不必要注意的细节，就是按照法律程序由家属聘请的律师明明是被官方拒绝了，可是官方媒体的报道却说是当事人自己认定的律师。这可是一个法治的倒退。
三十三年前，中共第一次审判我的时候，就自请律师的问题我和法庭有过激烈的争论，但最终没有能请自己的律师。那是因为当时法治初建，还习惯于按照无法无天时代的规矩来操控审判，以利于当局迷惑百姓。这一套是从苏联的斯大林时代学来的，是从中国传统的法治习惯的倒退。当时就遭到中国老百姓的唾弃。
而十七年前第二次审判我的时候，法制已经有了微小的进步。虽然仍不准公众旁听，虽然不让监察院入场；虽然仍是开庭前就已经定罪，仍然是中共政治局黑箱操作，但毕竟还要装装样子，已经可以请自己的律师了。因而黑箱操作的成分被大大缩小了，家庭和外界能够知道案卷里都有什么内容，黑箱操作也就受到了一定程度的监督，即使那也只不过是事后的监督。
一个比反革命案件更没有保密理由的杀人案，操纵黑箱作业就操纵吧。但为什么要保密？这只能解释为：有东西需要违法地掩盖。据官方自己公布的杀人原因是起于经济纠纷。那么是什么经济纠纷，无关于腐败吗？这是国际国内都在质疑的问题。
在这之前的两位政治局委员的腐败问题可以查，即使是按照中共黑箱操作的惯例。那么为什么薄熙来案的腐败问题不可以查？如果和薄熙来案紧密相连的谷开来案没有腐败问题，那么至少薄熙来案的腐败问题就是可有可无的了。这有利于下一步官方内部的讨价还价。
还有一种可能就是腐败案牵连范围太广，以至于拔出萝卜带出泥，于是在黑箱操作中不得不被和谐掉了。这样就不仅是腐败被和谐掉了，杀人案也有了讨价还价的余地。谷开来以杀人犯的资格，上庭时不戴手铐，上庭后没有对奇奇怪怪的法庭审问提出自己的辩解，她的家属也没有在被允许的前提下出庭。这怎么看都像是标准的斯大林式的法庭秀。
事后解密的苏俄资料说明：当年布哈林承认了斯大林强加在他身上的罪名，是有幕后交易的。斯大林是拿布哈林的妻子和儿子作人质，换取了承认那些人人都知道的荒谬的罪名。谷开来是不是为了保护她的儿子和丈夫呢？是不是还有很多涉案人被保护了呢？这哪里是法庭审案，这根本就是个连环套，而且是连皇帝都参与的阴谋案，够进入传统戏剧的资格了。
这次的案件和布哈林的案件一样，除了口供之外，缺乏证明事实的主要证据。那些被渲染得血淋淋的证据，大多是些间接证据，并不能证明是谷开来这个具体的人实施了杀人。为什么作为著名大律师的谷开来，不敢据此来为自己辩护呢？因为她懂得中国司法的黑暗。如果是在美国，她肯定会据此为自己辩护，也肯定不会自证其罪，自己给自己制造冤案。
这就是被她抨击的低效率的美国司法制度，和高效率节约经费的中国司法制度的根本区别。到底是快速、高效、廉价的司法原则重要，还是公正无欺的司法原则重要？
这是正常的法制和极权主义法制的根本区别。
按照中国传统文化和世界上大多数国家的文化，公正无欺是司法的第一，也是最重要的原则。其它所有的条件和原则都必须以这个第一原则为标准。有冲突时必须牺牲其它来保证这个主要和第一重要的原则。但在设计阶段就把它放在了不重要的地位，是只有共产党国家才有的原则。
按照中国共产党的公开解释，法律是人手中的武器，用来对付别人的武器。什么人能够有效的使用这个武器呢？当然是靠近权力的一方，也就是谁的权力大，谁就拥有武器的使用权。谷开来有理由看不上美国的司法制度。因为她自以为是掌权者，从掌权者的角度看美国的法制，就没有中国的用起来方便。在美国人们可以有效地利用法制保护自己。但如果中国当官的没有了司法特权，当然就觉得不自由。
在中国，共产党的司法制度给了掌权者们最大的自由，这就是老百姓受不到保护的根本原因。掌权者们还很奇怪，老百姓怎么会拿法律作为挡箭牌呢？这不符合共产主义的司法原则啊。
只有像谷开来这样，失去了权力的庇护，成为普通百姓之后，才会体验到高效廉价的司法是多么的可怕。身为大律师的她，不但无法保护儿子和丈夫，连为自己谋求生存的权利都没有。不管她是否杀了人，都已经证明了这种中世纪宗教裁判所式的司法制度，不仅不是文明的、民主的司法制度，甚至还不如中国古代实行了两千多年的司法制度。那至少还是王子犯法与庶民同罪的，人人都可以拿来做挡箭牌的司法制度。
聆听魏京生先生的相关录音，请访问：
http://www.weijingsheng.org/RFA/RFA2012/WeiJS120810ChinaWayOut65LegalInstitute2.mp3
（撰写于2012年8月9日，8月10录音。自由亚洲电台播出。）
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