Last week, China Central Television and other Chinese media reported on a scandal at the state-run oil company Sinopec that involved the expenditure of more than a million yuan for the purchase of high-end Chinese liquor that sources say was used privately by company executives.
Shortly after the story broke, stemming originally from the posting online of a number of receipts from Sinopec detailing the purchases, Sinopec’s Guangdong branch reportedly held three meetings around basically two agendas. The first was an order to clean house, meaning that a thorough internal investigation would be carried out to find out exactly who had aired out the company’s dirty laundry. The basic assumption was that the wrongdoer was someone inside the organization, an “inside ghost” (内鬼), and they would be dealt with severely once the company had gotten to the bottom of it.
The second matter up for discussion, involving of course the company’s external relations people, was how to deal with the media. The result was a strict prohibition against any company employee speaking to the media without express approval from Sinopec.
Given all of this fishing about, one has to be concerned about what exactly might happen to this whistle blower if they are found out. And experience tells us that informants are generally subjected to all sorts of reprisals once they have been exposed.
We may all remember the case of Li Changhe (李长河), the former politics and law committee secretary of the Henan city of Pingdingshan, who hired muscle to kill the wife of a township official, Lu Jing (吕净), after Lu blew the whistle on his corrupt activities. Lu Jing’s wife was brutally murdered, and Lu was severely injured in the attack. Then there was Zhang Zhi’an (张治安), the former top district leader in the city of Fuyang, Anhui province — known as the “White House secretary” — who ordered police, prosecutors and discipline inspectors under his thumb to jail Li Guofu (李国福), a real-estate company executive, after Li spoke out about Zhang’s problems. Li Guofu eventually died an “unnatural death” in the custody of local authorities.
As corruption cases involving officials and the bosses of state-run enterprises (like former Sinopec chairman Chen Tonghai) continue to happen, calls for the control of corruption have grown steadily louder, and discipline inspection organs and society in general have grown to have much greater respect for the contributions of whistle blowers.
For the media, these inside informants are key sources of information, and without their help it is almost impossible to imagine breaking open many cases of corruption. The most famous inside informant, of course, was that source known in the United States as “Deep Throat” (深喉), who helped the Washington Post unravel the Watergate scandal in 1972. Deep Throat was identified only a few years ago as a former deputy director of the Federal Bureau of Investigation.
In a clear mark of progress, China’s National People’s Congress in 2005 ratified the United Nation’s 2003 Convention Against Corruption. In this international law, now in effect in China, Article 33 concerns the protection of informants. It reads: “Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.”
While China does not yet have a law protecting the act of whistle-blowing on unlawful activities, both Article 41 of our constitution and the United Nations Convention Against Corruption are sufficient to establish that whistle-blowing is a lawful activity. Well then, why is it that even today these courageous people are routinely branded with the label “inside ghost”, as though their acts were somehow shameful? This tells us that the institutions and individuals vested with special powers and privileges not only remain unchecked by the law, but they uphold the spirit of lawlessness in their actions and values.
[As a state-run enterprise with powerful backing], a large-scale enterprise like Sinopec is in a rather privileged position. If there are collusive acts of corruption within the organization, with the benefits shared out among those involved, shining light on these problems could be extremely difficult. This tells us just how important it is that informants, whose information we depend on in such cases, receive protection from anti-corruption officials and the public. They are in difficult positions indeed.
This editorial originally appeared in Chinese in Southern Metropolis Daily.

In a post made to his Chinese-language weblog on April 15, Ezzat Shahrour, chief correspondent for al-Jazeera Arabic in Beijing, voiced his frustration with Chinese state media reporting on the upheaval in the Arab world this year. Shahrour, an accomplished writer of Chinese who studied at China Medical University in Shenyang, has commented frequently on both Chinese and Western media during the past several years, and Chinese media have often sought his views, such as in this 2004 interview with Southern Weekend and this 2008 interview with People’s Daily Online.
Shahrour’s latest post received more than 100,000 visits by Monday morning, and drew over 1,300 comments (themselves well worth a read).
This post is a fascinating read particularly in light of China’s policy of “going out” in recent years, in which the government has reportedly invested heavily on state media to beef up its media presence globally and strengthen its impact on “global public opinion.” In a December 2008 speech, Li Changchun (李长春), China’s top media control official as the politburo standing, committee member in charge of ideology, said Chinese media needed “to accelerate the pace of ‘going out.’” We must, he said, have a comprehensive strategy to “take CCTV and other key central media and make them into first-rate international media with a global influence.”
Al-Jazeera has often been cited as the network whose success China must emulate as it seeks to expand its “cultural soft power.”
On the crucial issue of media credibility, and on the world’s biggest story this year, Shahrour’s perspective comes not from the so-called “Western media” that Party leaders and the official press so frequently set up in opposition to an ostensibly “Chinese voice” — one controlled and mediated by the CCP. It comes from a journalist with al-Jazeera, the very network China has so often cited as the best example of how credible non-Western voices can compete for global public opinion.

“The Arab People Have 100,000 Questions for Chinese Media”
By Ezzat Shahrour (伊扎特)
Every time I see Chinese media reports on the Arab revolution I feel like my blood pressure is starting to rise. My adrenalin starts to race. My colleagues advise me to cut back on my reading of Chinese newspapers, saying, “Look, reading those all the time does your health no good.” But all joking aside, I can’t change my habits. Reading the Chinese newspapers has already become a daily must for me. And while I know it’s harmful, I can’t help myself. It’s the same as with cigarettes and coffee, another of my “bad habits.” Of course, when I talk about “harm” done, I’m not talking about the Chinese media themselves, but rather about their position on issues in the Arab world, and their intentional misreading of the popular will.
I just don’t see what the point is of media spending so much money to prepare their journalists to go to a dangerous place like Libya when all these reporters do is simultaneous interpretation in China of Ghaddafi’s own television station. Can’t this sort of news coverage be done just as well from Beijing? Isn’t it a complete waste of money? In their live reports, the Chinese reporters constantly emphasize that the majority of Libyans support Ghaddafi, so I suppose those opposition members who are gathering daily on the streets and in public squares must be from some fairy wonderland (or the Chinese media believe, like Ghaddafi, that these demonstrators are just “rats”)? The Chinese media tell us how Ghaddafi’s forces are gaining ground on the opposition forces, but they don’t tell us that there are tens of thousands of foreign mercenaries killing Libyan people at Ghaddafi’s behest. They tell us that the people of Libya all enjoy free medical insurance, but they don’t tell us how many hospitals Ghaddafi has built in Libya during his 42-year rule. They tell us how the people of Tripoli are all so grateful to Colonel Ghaddafi, but they don’t tell us that in this country that exports 1.6 million barrels of oil a day, six million people live on daily rations of porridge. The so-called Great Socialist People’s Libyan Arab Jamahiriya is nothing more than a bad check.
The vast majority of Arabs accept the air campaign in Libya by coalition forces, even though this is a choice made of necessity only, with the hope that the intervention of the multinational coalition will extend a lifeline to the opposition forces that represent the true will of the Libyan people. But China’s media have misrepresented this. After the bombing began, these Chinese media, who originally paid no attention at all to the Arab revolution, sprang into action, assuming the air of stalwart fighters against hegemonism. They took UN Resolution 1973 out of context, applied a double-standard to the breaking of the ceasefire agreement, kept a tacit silence on the issue of [Ghaddafi’s] foreign mercenaries, intentionally misread the reasons for the air campaign. For those Chinese viewers who managed to gather the truth from various other sources, this only brought into sharp relief the line and position being promoted in China’s media — emphasize only the humanitarian disasters caused by Western air bombardments, and reporting sparingly if at all on the violent suppression and massacre of the people by Ghaddafi.
I noticed one Chinese journalist compared Ghaddafi to Saddam. My personal view is that there are no comparisons to be drawn at all between these two men. Saddam fell more than 10 years ago, his top officials and advisors have all been either killed or thrown into jail, and rarely do people ever mention criticism of him. As for Ghaddafi’s officials, it seems we haven’t seen a single one. Those who haven’t fled or switched sides have been detained by Ghaddafi. Anyone who could sneak away has. Ghaddafi’s most trusted foreign minister, Moussa Koussa, fled to Tunisia and surrendered to the Americans. Chinese media seem blind to the fact that their deliberate misinformation has already been found out by internet users. Not long after China Central Television quoted Libyan state television saying that Libya’s former interior minister, Abdul Fatah Younis, had not in fact defected (Libyan TV used old footage of Younis and Ghaddafi together to make a fake report), Younis appeared on Aljazeera personally to refute these rumors, saying that he had already joined the opposition camp. But the latter bit of news never made it onto mainstream television in China. The examples like this are too numerous to recount.
Chinese academics and media often exaggerate the importance of so-called revolutionary leaders, and Ghaddafi now has the honor of having becoming one of the “beneficiaries” of such treatment. Some have even compared Ghaddafi’s Green Book to China’s little red book [of Mao Zedong]. But if you really understood the Arab world, you would come to the complete opposite conclusion. The Green Book has long been a joke in Libya and even in the rest of the Arab world. The words in Ghaddafi’s book are not only at odds with his actual style of rule, but they often bewilder with their internal contradictions. No one has any idea how much Ghadaffi spent to have this book translated into different languages of the world — including languages many of us have never even heard of. Chinese versions of the book came out in China in the 1980s and 90s. I won’t say any more about this. Everyone can go and find it for themselves. You can note especially his words on the differences between men and women, which will provide you greater amusement than the latest pop hit.
As I see it, media have responsibility and an obligation to report events comprehensively. Media should report it how they see it and how they know it, no matter whether the facts suit their own value judgements. Libyan state television can be used as one source of information. Through it you can understand the situation with Tripoli and Ghadaffi’s faction. But this is definitely not the only source of information. The rebels in Benghazi are people too, and they are an important side of this conflict. What I actually see, though, is that Chinese journalists are active every day in the hotels and on the streets of Tripoli, accompanying Ghadaffi loyalists to streets, hospitals and schools that have been prearranged for the convenience of their reporting. Their [media] logos frequently appear in videos in which Ghaddafi is shouting out slogans, but it’s hard to find them at important press conferences given by the opposition party.
Information is the glue that links media and viewers together. For this reason, the reliability of information becomes the standard for judging a media’s credibility. Media are not about proselytizing, they are an industry, an industry whose responsibility is to transmit information. And yet, during each successive sudden-breaking story, the effect Chinese media have as a fourth estate falls far behind that of the internet and personal media. Those who know how to obtain richer information and reassemble it will turn to the internet to understand the situation in Libya. A number of people who dare to challenge the authority of the state media have already begun to act. The information they provide make it easier for Chinese to open their eyes and see the world. Take, for example, the Old Banyan Blog (老榕). Based on what I know, as change has gripped the Arab world about 170,000 Chinese web users have turned to the Banyan News Service for timely online broadcasts. Many Chinese are no longer satisfied with getting their information form a single source, and as a direct result of this is that the positions of Chinese on the war in Libya are no longer so unified as they were on the wars in Kosovo, Afghanistan and Iraq. One aspect of this can be attributed to the development of the web, but another aspect is the steady loss of credibility by Chinese media.

FRONTPAGE PHOTO: Ezzat Shahrour takes part in a 2009 dialogue on Tibet held by the Permanent Mission of the PRC to the United Nations.

The latest issue of Finance Week (理财一周), a magazine published by Shanghai’s Oriental Morning Post, has run the recent open letter by Chinese legal scholar He Weifang (贺卫方) expressing concern over steps backward on rule of law in Chongqing. In the open letter, posted to his blog earlier this week with an explicit invitation to Chinese media to re-publish without seeking further permission, He wrote with clear references to the abuses of the Cultural Revolution that rule of law in Chongqing has become over the past year a “furious unfolding of movement-style law enforcement and administration of justice.”
Chongqing has also gotten a lot of attention in China in recent months for changes in the media and propaganda sphere, particularly the promotion of so-called “red culture” (红色文化) and the roll out of more “red programming” on the local Chongqing Satellite TV. In his open letter, He referred briefly to these developments, but kept his attention focused on what he saw as clear threats to the independence of Chongqing’s law courts.
While He Weifang’s letter still seems to be readily available on various blogs in China, the choice to print it could be risky for mainstream media and major internet news portals. It is also accompanied by a rather strong lead editorial under the title, “A Market Economy Cannot Be Without Mavericks” (市场经济不能没有特立独行者).
Writing on Twitter today, journalist Peng Xiaoyun (彭晓芸), who was dismissed as opinion editor from Guangzhou’s Time Weekly earlier this year, praised Finance Week for its courage. “I salute this publication and the editors who put out this series of essays!” she wrote. And then, in an apparent reference to Guangdong media, which have been under consistent pressure lately: “This is why I say that there is no such thing [in China] as an eternally good newspaper, and no sacred organization that needs protecting. The space [for journalism] is on the move, always under pressure from those who censor themselves, and always being stretched by those journalists who are brave enough to push ahead.”
Frontpage Image: “On Line” by K.L. Macke posted to Flickr.com under Creative Commons license.

I apologize once again to those readers, web users and close friends for the mess that ensued as I suddenly lost contact with the outside world! Trust me, Old Yang isn’t finished yet, and some year, some month and some day I will have an opportunity to thank you face to face, thanking you for the way that you offered your sympathy, support and attention, and extended a warm hand in the midst of my sickness.
Once I reconnected with the world, a flood of information and letters came. And there were so many friends online I recognized and didn’t recognize who were trying to find me. Some friends couldn’t sleep at night, waiting for me to come back, and for that I am truly moved.
The predominating feeling in choosing to engage in writing like this and follow pursuits like this in China is one of loneliness. Your views make you somewhat alien. Your aspirations set you apart from the fold. Your family and friends start to view you as unusual. For many years, that feeling of loneliness buries not only one individual ideal after another, but ultimately destroys that dreams for which the Chinese people have struggled for for a century and still not grasped. We Chinese have grown accustomed to using cold indifference and isolation to destroy hopes and dreams. We’ve all at one time or another been accomplices.
And yet there, during the two loneliest days of my life, I received so much friendship and care. Thank you all. All of you have helped me to recognize what is right and what is wrong. All of you have helped me to recognize that my choices have not been wrong . . .
I’d also like to take this opportunity to express my feelings of thanks to people overseas, and particularly to overseas media and to the government of Australia. This thanks is mingled with a strong sense of guilt and shame. For years now, I’ve enjoyed the convenience and benefits of national treatment from Australia, and yet I have dedicated everything I have to China. I hope that some day they are able to understand me. A harmonious and stable China, strong and prosperous, and which respects human rights, conforms to the interests of the whole world.
At the same time, I wish to say to my readers, there are very special reasons why you have heard me say in various introductions that I am Chinese and that I hold Chinese nationality, and this is emphatically not a deception. Could anyone commit such a low-order mistake, least of all me, who has his Australian passport in hand when he travels in the West? Some day in the future you will hear me explain. But not now.
I want to reaffirm that wish to take full responsibility for my neglect, and ask that everyone please forgive me. But I don’t wish to expend too much time trying to explain. I must devote more time to continuing with my work and mission, which has already become my life.
Of course, this does not prevent us from observing the world around us through the window that this whole affair has opened. When I lost contact with the outside world because my mobile was off, perhaps everyone immediately guessed what the “facts” were, and they all knew the “truth.” Thereupon, my family began the rescue mission, web users searching, friends started rushing out with appeals, many overseas media moved on the story, the Australian prime minister and foreign minister started pulling strings, and China’s foreign ministry spokesperson leapt to a routine denial of rumor — and for its part, the Chinese media maintained collective silence, and a few website editors even discussed whether or not my essays should be taken down.
Perhaps everyone knew that this day would come, and the day did come on that day. In the aftermath, there are a couple of points we should think about: Who is it that made everyone believe that a patriotic writer, calm and moderate, who writes stories and reasons things out would eventually come to such a day? Why is it that no one actually supposed that I might have been “kidnapped” by criminals who wanted to hold me for ransom, sold out by traitorous “friends,” possibly suffered a fallout with a business partner, or even maybe even a jealous lover? In a country in which they say a socialist system of rule of law has been fully built, how is it that the rational line of thought for the Chinese media leads them directly to the government in a “kidnapping” case so that they maintain a shameless and numb distance?
Think about the Qian Yunhui case (钱运会), think about the recent hoarding of salt, think about my “kidnapping” case. How is it that they all come to the same point? What I want to say is that the role I have played all along, and will continue to play, is the role of the calm intermediary, connecting the past and the future, connecting domestic [China] to the outside world. Calmly, and progressing step by step, I want to build our nation into a harmonious and stable one, strong and prosperous, a modernized nation that is free and democratic.
The goal isn’t asking too much. And on some level every citizen should take responsibility for realizing this goal. But I don’t want to shoulder that cold and serious joke I hear at every meeting: How is it that you haven’t been arrested yet?
Having been through this experience, I have added another dream. I dream that when I silently take my leave of you all, you will sigh and exclaim, “He’s tired, let him rest. We don’t need him anymore.” I hope when word comes that I’ve been “kidnapped,” our [foreign ministry] spokesperson and government will say, “We can’t lose a single citizen!” I dream that disappearances and missing persons in this country of ours happen because someone is ill, or because their mobile phone ran out of juice. I dream . . .
This essay was originally posted on April 6 at Yang Hengjun’s Blog.

In this country of ours, the words “extreme”(偏激), “drastic” (过激) and “radical” (激进) are readily linked together with ideas and thoughts, and they all basically imply the same thing. If an individual is seen as someone with extreme ideas or as radical in some way, the general feeling is that something is wrong with this person. At the very least they are asocial, with ideas different from those of the rest of us. However, this idea itself is something that appeared only rather recently in our history.
In ancient times in China, people might say instead that this or that person was “impetuous” (狂狷), “eccentric” (怪癖), or “dissenting and strange to the extreme” (非常异议可怪). And if they reached such a point that they “denied all law and custom” (非圣无法), they could basically be given over into the hands of officials and killed.
What are “extreme ideas”? This is something that has never been clearly defined. In the closing years of the Qing Dynasty, as the very notion of “ideas” was just coming into vogue, one could be seen as harboring “extreme ideas” for cutting off one’s queue or reading banned books. In our ancient schools, of course, failing to respect one’s teacher, or having opinions about the meals served at school could be construed as having “extreme ideas.” For either of these extremes, one could be dismissed from the school entirely. Of course, in those days, if everyone got up in arms and opposed the school’s handling of its extreme students, school authorities were likely to soften under pressure, withdrawing their action and pretending nothing happened.
Things changed in the Beiyang Period (1912-1928) of the Republic Era. At that time, the label “extreme” tended to fall on the heads of girls and young women. If women cut their hair short, they risked not only stares on the street but possible expulsion from school. For men, the boundaries of “extreme ideas” had already widened somewhat. In the countryside, sure, carrying around a copy of the radical magazine New Youth might have been regarded as “extreme,” but the big city schools would look the other way so long as you weren’t advocating the overthrow of the government or calling for Chinese-style anarchism. So long as one stuck to words, and stopped short of taking action, even if the government placed a youngster under arrest schools could generally intervene and influence the outcome.
During the rule of the Kuomintang (KMT) in China (after 1928 to 1949), owing to strict KMT rule, there was an upsurge in students with “extreme ideas” in China’s schools. The vast majority of students dismissed from schools for extreme conduct were guilty of this extreme. Perhaps all of the progressive students and revolutionaries of that period had been expelled from their schools for harboring “extreme ideas.” Some transferred to other schools and continued their studies. Others leapt right into the work of revolution. But of course, the Republic Era was different from the Late Qing in the sense that the reading of this or that book, or this or that magazine, or criticizing the food at school, was all basically safe territory and wouldn’t lead one to be branded an “extremist.” When so-called extremists were turned out, it was usually for really big stuff — such as calling for class boycotts or public demonstrations, that kind of thing.
“Extreme” or “radical” ideas are actually things you can’t put your finger on. First of all, there is no set standard for deciding what is “extreme.” And secondly, no one can agree on exactly who gets to set that standard.
Having extreme or radical ideas is not a crime under the law. And if there is an insistence on assigning guilt on this account, other excuses must be found. In any age, a student branded as extreme or radical might suffer some form of punishment. But this punishment has no basis in the law, and can only arise when those offices wielding power become the law, using regulations as a pretext to settle scores and persecute others. This is the kind of thing we can readily see in the recollections of those who lived through the student movements of the Kuomintang era. In those years, many such evils were perpetrated by student spies and the dean’s offices of our schools.
Actually, when we talk about someone being extreme or radical, we are just talking about someone being a little different from everyone else, and letting this difference show. Let’s imagine, for example, that we have a rotten apple. And perhaps most people think it just needs to be trimmed a bit, cutting out the rotten parts. But along come these people who believe the only thing to be done is to throw the apple away, and the farther away the better. The latter become the extremes. For young people, disallowing extremes amounts to confinement. For a society, it means sclerosis. The extreme and the radical don’t necessarily equate to creativity, but many things that are rich with creative potential test the limits. For generations the creativity of youth has been strangled by the process of socialization. If to that process of socialization we add the pressures of ideology, the violence done to students’ ideas is all the greater.
The comedy and the tragedy of history lies in its tendency to repeat itself. Just as sad and comical is the way we have always gone to extremes in dealing with the extreme and the radical. Only when we as a nation emerge from this morass will we truly find hope. Otherwise, we will only cower in fear, generation after generation, spinning in place.
This article was originally published in Chinese at Southern Metropolis Daily.

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]
为了法治，为了我们心中的那一份理想
——致重庆法律界的一封公开信
贺卫方
尊敬的重庆市法律界各位同仁：
一年多来，我一直想写一封公开信与各位交流一下关于重庆“打黑”的看法。不过考虑到自己在博客等媒体上对于某些事件已经作出过不少评论，担心“说三道四”，饶舌惹厌，也就作罢了。但是，最近重庆的某些走势令人颇感焦虑，如鲠在喉。在我看来，在这座城市里所发生的种种，已经危及法治社会的基本准则，作为一个法律学者尤其是一直参与司法改革的学者，我觉得，公开地把自己的一些困惑和批评意见发表出来已经成为一个紧迫的义务。
促成我写这封公开信的另一个因素是，重庆是我的母校西南政法大学的所在地，是我魂牵 梦萦的一座城市。1978年，经历了“八千里路云和月”，在歌乐山下的这座校园里，自己开始了此后的法学生涯。当年上学的时候，我们的老师们也刚刚从“十年浩劫”中备受压制的状态里回到校园，谈起文革期间无法无天、生灵涂炭的一幕幕，一些老师不禁泪洒讲坛。其实，我们这些学生也都是文革的亲历者，所以每个人都是何等地珍惜法学这门专业。我们憧憬着祖国法治建设的前景，盼望着能够早日投身到这桩伟大的事业中，为保障公民权利与自由作出贡献，并下定决心，绝不让文革悲剧在这片土地上重演。
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？
在李庄案的审判过程中，我们分明看到，法庭基本的中立性已经荡然无存。庭审中，李庄及其辩护人请求证人出庭接受质证。我相信主持审判的付鸣剑法官深知这种当面质证的重要性，因为你在西南政法大学的硕士论文研究的主题正是证人出庭作证的必要性。然而合议庭却拒绝了被告方的要求，理由居然是证人不愿意出庭作证。请各位查一下刑事诉讼法，有没有证人出庭与否取决于他或她的意愿的规则？况且该案的七位关键证人均在重庆执法部门的羁押之下，他们提供的书面证词很可能出自于刑求或其他威逼利诱，必须通过面对面的核查印证，才能让李庄究竟是否唆使相关人员做伪证等真相大白。然而，江北区法院—— 这是我当年大学实习的地方——却硬是仅仅凭借这些无法质证的所谓证词作出了有罪判决。
在该案二审时，出现了极其蹊跷的一幕：李庄由一审绝不认罪到二审时突然完全认罪。我们无力深究这戏剧性转变背后的影响因素，不过当法庭宣布由于李庄的认罪，将刑期由两年六个月改为一年六个月时，李庄明显表现出受骗后的屈辱和愤怒，他大声说：“我的认罪是假的。希望法庭不要给我按认罪处理，认罪是在重庆公安机关和检察机关诱导之下进行的”（据“经济观察网”2010年2月9日报道）。李庄的言辞表明，他仍然没有认罪。这样一来，依据他认罪因而减轻处罚的二审判决就被釜底抽薪了。作为一个公正的法庭，必须立即宣布暂缓作出二审判决，查清李庄认罪是在自由意志支配的行为，还是确有背后交易导致以 认罪换缓刑。无论如何，既然李庄已经明确地拒绝认罪，二审合议庭需要在这一新情况出现之后作出新的判决。如果法官们确认一审所认定事实无误，那么就应该改为维持原判，而不是减轻处罚。当然，如果存在着警方和检察机关诱骗认罪的情节，法院也需要追究相关人员妨碍司法的罪责。但是，重庆市第一中级人民法院却任由法警将正在怒吼的李庄拖出法庭，对于合议庭依据虚假认罪基础上的判决无动于衷。这又是为什么？
看得出来，围绕着李庄案的审判，重庆方面做足了“功课”。法学界也无法置身事外。庭审现场，有学者应邀旁听。12月30日的庭审持续到凌晨一点多。接近尾声时，在法庭楼上的一间可以通过视频直播看到庭审现场的会议室里，“有关部门”连夜召开法学专家座谈会。“有关部门”是哪个 部门？深夜被叫来参加座谈会的西南政法大学教授梅传强告诉《南方周末》，是重庆市政法委召集的。第二天，《重庆日报》便刊出了庭审纪实和学者们力挺这次审判、批驳李庄及其律师在庭审中所提出各项质疑的发言摘要。基层法院的一次审判，直辖市的政法委亲自主导，星夜召集学者座谈，市委机关报第一时间为之造势。面对这一切，若还有人相信这样的审判以及后来重庆第一中级法院的二审有一丝丝审判独立、程序正义的意味，那实在是天真到可笑的程度了。
问题在于，假如没有法律界的配合，这一出出司法闹剧又如何可以顺利上演？参与者也许会辩解说，在目前的体制下，个人即便内心有疑问甚至抵触，但是你如何抗拒这种压倒性的支配力量？诚然，这是一件十分纠结的难题。但是，在消极顺从与积 极迎逢之间还是有着清晰的界限。某些受过严格法律训练的检察官那种罔顾法律概念，创造性地为一些非法行为背书的行为，实在令人齿寒，也可以说是法律教育失败的象征。
这里还要特别表达对于重庆法学界某些学者的失望之情。如果说实务界由于身份困难而不得不听命于上峰的话，学者们却完全可以保持最低限度的独立性。对于践踏法治准则的行为，也许你不愿意发表直率的批评，但至少还有保持沉默的权利。世界不少国家的法律史表明，在维护法治基本准则方面，法律学界都承担着为实务界提供理论和知识后援的使命，同时也肩负着耶林所谓“为法律而斗争”的神圣义务。面对干预司法独立、违反法律程序、损害公民权利与自由的行为，学术界需要作出清晰而坚定的批评和抵制。但遗憾的是，一些学界 同仁不此之图，反而在一审判决尚未作出的时候，就在官方报纸上集体合唱，发表对于五个程序事项一边倒的言论。你们可以看一下随后网络上各方人士如何评论，给学界尤其是西南政法大学带来了怎样的声誉损害。我不明白，促使诸位做这样事情的动机究竟是什么？
最后，我要对重庆公安局王立军局长说几句话。2010年11月，你被西南政法大学聘为兼职博士生导师，我恰好也是母校的兼职博导（查简历，还获悉你也是北大法学院刑法研究所的研究员，足见我们的缘分不浅），所以这里不妨做些学者间的交流。虽然只是公安局局长，但由于重庆当局将“打黑”运动作为工作的重点，你的角色就特别凸显，可谓举足轻重。对于你主导的这场雷霆万钧的运动，我颇有一些担心。一是指导思想上如果存有净化社会的观 念，结果可能是危险的。人性总有某些无从改变的特性，一个健康的社会也许只能对于某些人性的弱点采取容忍的态度。况且秩序与自由有着内在的紧张，过于重视秩序，未免偏于一端，令自由受到减损。
第二，尽管我们都痛恨黑社会，也赞成以法律制裁这类犯罪行为，不过还是要看到，黑社会在重庆能够发展到你们喜欢声称的那种可怕程度，那一定是我们的“白社会”出了严重问题。例如司法不彰，企业界只好依赖法外手段保证交易安全。打黑固然必要，但治本之策却是健全政府依法行政和司法正义的相关制度。
第三，假如政府在惩罚犯罪的过程中使用非法手段，例如刑讯逼供，剥夺嫌疑人的诉讼权利，甚至让那些从事刑事案件辩护的律师提心吊胆，朝不虑夕，势必会带来严重的后患。政府用 非法手段打击犯罪令人产生某种不好的感觉，那就是“以黑制黑”，强权即公理。而且，过于严厉的惩罚损害了人们的平等预期，对国家心存怨恨的已决犯亲属以及将来出狱的人们将形成一股可怕的反社会力量。多年来，很多非常恶性的犯罪的作案者都是此前“严打”中受到过于严厉打击的刑满释放者。你从事公安工作多年，对此一定有比我更多的了解。
第四，尽管在现行体制上，公安机关具有超越司法的强势，但是，你作为一个兼职法学博士生导师，我相信一定会理解，法治国家的一个重要标志就是警察权要受制于司法权；公安需要尊重司法权，要接受检察机关独立的监督和审查，要维护法院和法官的独立性。其实，尊重独立司法对于手握大权的人一样重要。文强在炙手可热的时候根本不会意识到这种独立 性的价值，但一旦沦为阶下囚，他也许幡然醒悟，深刻地感受到，没有独立的司法，没有一个人是安全的。
各位同仁，我在写这封信的时候，时时会想到死亡这件事。虽然相关数据没有全部公布，不过自从“打黑”以来，文强之外，在重庆还有不少人被判处死刑。人都不免一死，由国家公权力剥夺一个人的生命毕竟是很重大的事情。在网上看到你们的城市组织市民唱“红歌”的图片，真是红旗招展，满目赤色。旗帜的颜色也是血液的颜色。“唱红”与“打黑”两者行为都以同样的颜色铺陈渲染，令人不禁产生复杂的联想。不过，无论是权倾一时者，还是屈辱偷生者，生命注定是朝向死亡的。那些死刑犯不过比活着的人早走一些时日。砍头和枪杀都会留下可怕的伤痕，不过，那却是一种无需治疗的创伤。古希腊 伟大的戏剧家索福克勒斯对此看得很清楚，容我把他的诗句作为这封信的结语吧：
等冥王注定的命运一露面，
那时候，没有婚歌、弦乐和舞蹈，
死神终于来到了。
一个人最好不要出生；
一旦出生了，求其次，
是从何处来，尽快回到何处去。
等他度过了荒唐的青年时期，
什么苦难他能避免？
嫉妒、决裂、争吵、战斗、残杀接踵而来。
最后，那可恨的老年时期到了，
衰老病弱，无亲无友。
愿各位幸福，并致法治的敬礼！
2011年4月12日
附注：作者欢迎传统媒体和网络转载本文，尤其欢迎重庆市媒体转载，无需征求同意。