Dear colleagues in the legal world in Chongqing:
For more than a year now, I’ve wanted to write an open letter to discuss with everyone my views on the “anti-crime drive” (打黑) in Chongqing. But considering that I wrote quite a number of commentaries on my own blog and for various media, I feared I might make carping remarks or get all twisted up, so I wrote off the idea. However, a number of trends in Chongqing of late are nagging causes for anxiety. In my view, the various things that have happened in that city already pose a danger to the most basic notions of a society ruled by law. And as a legal scholar, one in particular who has participated in the process of judicial reform, I believe I now have an urgent duty to openly express my uneasiness and voice my criticisms.
Another factor behind my writing of this open letter is the fact that Chongqing is the locale of my alma mater, Southwest University of Political Science and Law, and a city of which I have the fondest memories. It was there in 1978, after a “long a arduous journey,” that I began my sojourn into legal studies in that campus at the foot of Gele Hill.
In the course of our studies that year, our teachers too had only just returned to campus life after the “terrible decade” during which they were suppressed, and they spoke of the lawless days of the Cultural Revolution, chapter upon chapter of misery and suffering. A number of teachers could not hold back the tears. Actually, all of us students had also experienced the Cultural Revolution first-hand, and all of us one way or another treasured this course of study in law. We longed for the future of building rule of law in our homeland, and we all hungered for the opportunity to get involved in this great project, doing our part to preserve civil rights and freedom. We made up our minds that we would not allow the tragedy of the Cultural Revolution to be replayed on this soil.
Now, thirty years have passed, and so many things have happened in this city with which we are so intimately familiar, things that cause one to feel that time has been dialed back, that the Cultural Revolution is being replayed, and that the ideal of rule of law is right now being lost. That’s right, I’m pointing to the “campaign of crackdown on criminal forces” (打黑除恶) that has been going on [in Chongqing] for two years now (and of course also about this business of “singing red songs,” though I’ll set this issue aside for now).
Throughout this whole “campaign against crime” (打黑) we have seen the furious unfolding of movement-style (运动式) law enforcement and administration of justice. Within a short eight months, the authorities rounded up close to 5,000 “criminally involved” (涉黑) persons by means of informing (or so-called “letters and denunciations by the masses”). Along with this we had one-hundred or so “special case teams” (专案组) making assaults are carrying out wholesale arrest, prosecution and trial proceedings with so-called “Chongqing speed” (重庆速度).
As the diary of Judge Wang Lixin (王立新), posted to the official website of the Supreme People’s Court ahead of the hearing of the Wen Qiang case (文强案) on appeal, clearly shows, police, prosecutors and the courts [in Chongqing] worked in concert, preparing cases without any separation of responsibilities. It’s not just this, but so-called “three chiefs conferences” (大三长会议) have actually appeared too. For a number of important cases, the chief judge, the attorney-general and the police chief will hold meetings and work in a coordinated fashion, so that the cases decided before they ever even go to trial. The eventual hearing of the case is a mere formality. The institutional goal of allowing the three branches to mutually check one another is entirely for naught. My colleagues, do you not believe that these methods run entirely counter to the independent exercise of adjudicative and procuratorial powers clearly stipulated in our nation’s Constitution and Criminal Procedure Law?
In the midst of trial proceedings for the Li Zhuang case (李庄案), we saw quite clearly that the most basic neutrality of the court had already vanished. During the trial, Li Zhuang and his defense attorney requested that witnesses appear in court to be cross-examined. I have no doubt that Judge Fu Mingjian (付鸣剑), who officiated at the trial, understands only too well the importance of face to face cross-examination, because the topic of his research paper at Southwest University of Political Science and Law was on the necessity of witnesses appearing in court for cross-examination. But the collegiate bench [of judges in Chongqing] rejected the request of the defendant, citing as its reason that witnesses were unwilling to appear in court. Please, won’t you all consult your Criminal Procedure Law to see whether or not court appearances by witnesses are determined by the principal of willingness? Seeing as the seven key witnesses in this case are in the custody of law enforcement in Chongqing, the written statements they have provided might have been made under coercion or for gain, and their testimony must be checked in person. Only then can it really be determined whether or not Li Zhuang instigated other in providing false testimony. Nevertheless, the court in Jiangbei District — this is where I studied in my university years — arrived at a guilt verdict in the case on the basis only of this so-called testimony there is no way of verifying.
In the midst of the hearing on appeal of this case, something extremely strange happened: Li Zhuang, who had firmly denied his guilt in the first trial, suddenly entirely admitted his guilt. We are powerless to get to the bottom of the reasons behind this dramatic shift, but when the court announced that, owing to his confession, Li Zhuang’s sentence would be reduced to 18 months from 30 months, Li Zhuang clearly bore the marks of humiliation and anger of one hoodwinked, and he shouted out: “My confession is fake. I hope the court does not handle me according to this plea bargain, as my confession was induced by the Chongqing Public Security Bureau and prosecutors” (see report from Economic Observer Online, February 9, 2010). Li Zhuang’s words show that he had not admitted guilt.
. . .
The problem is, supposing the legal world did not cooperate, how could these judicial dramas be perpetuated? Those who are participating might make excuses and say that they personally harbor doubts or even resist in their hearts, but how can you resist such overwhelming power? Admittedly, this is a very tangled problem. But there is still a clear line between passive obedience and active bootlicking. It is chilling the way some prosecutors with strict legal training have disregarded basic concepts of law, creatively endorsing various illegal actions. And it can be said that this is a sign of the failure of legal education [in our country].
Here I must especially express my feelings of disappointment with a number of law professors in the Chongqing. If the case in professional circles is such that owing to their professional roles they have no choice but to listen to their superiors, it is entirely within the power of these scholars to maintain at least a most minimal degree of independence. As for this trampling on basic standards of rule of law, you perhaps do not wish to directly voice your criticism, but you at least have the right to remain silent. The history of law in many countries shows that, in terms of protecting basic standards of rule of law, one important mission of scholars within the legal field is to provide theoretical support and reinforcement for professionals working in the field. At the same time, they have a sacred duty, as [German jurist] Rudolf von Jhering said, to “struggle for the law. Against intrusions on judicial independence, violations of legal procedure, and conduct damaging civil rights and freedom, scholars must issued clear and firm criticism and opposition. But regrettably, a number of my colleagues [in the legal world] have failed to do this. Quite the contrary, even before the verdict in the first instance came out, they were all singing in unison in official government newspapers, saying things that were completely at odds with the five procedural rules. You can all see online how much attention these obsequious remarks managed to get, doing damage to the dignity of academia and especially the dignity of Southwest University of Political Science and Law. I can’t for the life of me understand. What motivated these colleagues to act this way?
Finally, I have a few words for Chongqing’s police chief, Wang Lijun (王立军). In November 2010, you were given a concurrent post as a director of doctoral students at Southwest University of Political Science and Law. As it happens, I too am a director of doctoral students at the University. So at this point I may as well engage a fellow scholar in a bit of conversation. While you are only chief of police, your role has become quite prominent and you are a person of real consequence in light of the fact that authorities in Chongqing have given the “campaign against crime” such a high level of priority. I harbor a number of concerns about the thunderbolt that is this movement you are spearheading. First, if the guiding principle contains hints of social purification, the result could be quite dangerous. There are always aspects of human nature that cannot be changed, and a healthy society can perhaps only take an attitude of tolerance toward certain human weaknesses. There is an inherent tension between order and freedom, and if order is emphasized too strongly, then freedom will suffer in the balance.
Second, while we all bitterly hate criminal elements, and we encourage dealing with criminal activity in accordance with the law, we must also recognize that for “black society” [criminal gangs] to have developed in Chongqing to the terrifying degree you so enjoy declaring, this must surely mean that serious problems have emerged in “white society” [or “clean society”]. As justice has faltered, for example, enterprises have had to rely on means outside the law to ensure the safety of business. While campaigning against criminal elements is necessary, dealing with the problem at its root means building the relevant systems to ensure that government administration accords with the law and the courts are just.
Third, assuming that in the process of meting out justice the government employs means that are illegal, such as extraction of confession by torture, violating suspects’ rights in litigation, or even intimidating lawyers for the defense in criminal cases, the future consequences of this will be serious. Employing illegal means to strike out against illegal elements leaves people with the unfortunate impression that might is right, that black can be used to deal with black. Moreover, excessively severe penalties upset the expectation people have for equal treatment, and this breeds pent up anger among the family members of those already found guilty, and the guilty who might one day be released from prison, fostering a frightening anti-social force. For many years, we’ve seen that the perpetrators of many of the most grievous crimes [in our society] were those viciously treated in previous “strike hard” campaigns [against crime] and then released at the end of the terms. Having been in law enforcement for so many years, you must be even more clear about this than I am.
Fourth, even though under the current system, police organs have power surpassing that of the courts, I am confident you must understand as a director of doctoral students, that one important measure of rule of law in a country is the limiting of police power by the courts. Police must respect the courts, and they must accept the independent examination and supervision of prosecutors, and must protect the independence of courts and judges. Actually, respect for judicial independence is just as important for those who hold major power in their hands. While he was still in favor, Wen Qiang (文强) no doubt had little idea of the value of this independence, but once he had fallen afoul of the authorities, he must have had a rude awakening, realizing only too well that without judicial independence no one at all is safe.
My colleagues, as I write this letter, I think from time to time of death. While relevant numbers have not been completely released, since the “campaign against crime” was initiated [in Chongqing], aside from Wen Qiang, there have been many people in Chongqing who have been sentenced to death. Death comes to us all, but for the state to deprive a person of his life is a grave matter. I saw pictures on the internet of the city organizing citizens in the singing of “red anthems.” Red banners fluttered in the wind, red as far as the eye could see. The color of these flags is also the color of blood. The “singing of red anthems” and the “campaign against black” [or crime] are bathed in a common color, and one cannot suppress all sorts of complicated memories. Nevertheless, whether one is on top for a time, or lives in ignominy, death will visit us all in the end. Those criminals sentenced to capital punishment will only go there sooner than the rest [in such a system without the protection of laws]. Decapitations and firing squads leave behind dreadful scars, and the trauma is without a cure. The ancient Greek playwright Sophocles recognized this only too clearly. Let me use his words, then, to close this letter:
No ceremony, no wedding songs, no dances and no songs…
Just death! The end of us all is death.
The best would be not to be born at all.
But then, if he is born, the next best thing for him would be to try and return
to where he came from in the quickest possible time!
While youth and its careless mind lasts, no thought is given to what pain, what
misery will, most certainly, follow.
Murder, mayhem, quarrels, wars will come before the inescapable end.
The hateful old age, frailty, loneliness, desolation and
your own misery’s neighbour, is even more misery.
I wish you all happiness, and offer a salute to rule of law.
April 12, 2011
NOTE: The author invites the media to run the text of this letter online, and I extend the invitation particularly to Chongqing media. There is no need to ask permission.
[Link to Chinese original]
然而，时过三十多年，我们多么熟悉的这座城市里却发生了很多事情，令人恍然有时光倒流、文革重演之感，法治的理想正在沦丧。是的，我指的正是已经持续两年多的“打黑除恶”（当然也包括“唱红 ”，不过“唱红”这里就暂时不讨论了）。在整个“打黑”行动中，我们看到了运动式执法和司法在轰轰烈烈地开展。在短短八个月的时间里，当局发动社会密告（所谓“群众来信和检举”），抓获“涉黑”人员近五千人。随之而来的是数百个“专案组”突击工作，以“重庆速度”批量化地逮捕、起诉和审判。文强案二审之前出现在最高人民法院官方网站上的王立新法官的日记清楚地表明，公安、检察和法院之间是如何不分彼此、联合办案的。不仅如此，所谓“大三长会议”几乎是公开地登堂入室。对于一些重大案件，法院院长、检察院检察长、公安局局长开会协调，导致案件还没有开审，判决结果就提前决定了。最后的审理过程就是走过场。制度设计中所追求的三机关相互制约机制也就完全失灵了。各位同仁，你们不觉 得这种做法完全违反了我国宪法和刑事诉讼法所明确规定的检察权和审判权独立的准则么？