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淺談「陳光誠事件」
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陳光誠事件發生後,我不打算在塵埃落定前憑空臆測。我原先估計需要一段相當長的「磨合」時間,但這個事件居然在不到一個月內暫時落幕我略表己見。

 

首先我想強調「法權」的概念。「法權」一詞通譯為「法治」(胡卜凱 2007),也請參考(Bequelin 2012)

 

一個國家的政策可以辯論;人民可以表達異議;政府領袖及其團隊可以,在一定程度內,堅持並推動他/她們認為「正確」的政策。但是,任何一個政府在推動任何政策時,必須根據「法權」的原則。簡單的說,執行政策的人不得「便宜行事」 -- 不能為了貫徹這個或那個政策而侵犯或傷害到人民其他受法律保障的權益。台灣流行的「程序正義」這個概念,我相信一部分在表達類似的觀點。

 

陳光誠先生所從事的「異議」或「抗爭」活動,基本上在堅持和維護「法權」的原則。而他本人及他所試圖保護的人群,則是「便宜行事」的受害者。根據以上我接受的前提和我所了解的事實,則中國大陸或中共政府在陳先生逃離山東前的行為,顯然違背了這個「原則」。我再度引用洛克認為「一群人民有抵抗不公不義政府的權力。」這個觀點。因此,(我認為)中國大陸或中共政府(今年五月以前)在處理「陳光誠事件」上應該受到譴責和批判。自然,他/她們的做法也就有修改或矯正的空間;從而,他/她們也給予外人介入的藉口或機會。

 

陳先生逃離山東是一個精密籌劃的行動,美國官方何時介入以及介入的程度,我不得而知。但美國(政府)「干預(中國)內政」則是事實。

 

這個事件的最大受益者是歐巴馬總統:由於「陳光誠事件」我估計他在募款額上會至少增加$5,000萬,在得票率上會凝聚2 - 3個百分點左右的游離票。提高歐巴馬總統連任的機率是中國領導人做出明快決定的原因之一。換句話說,胡主席幫了歐巴馬總統一個大忙。但是,「天下沒有白吃的午餐。」,歐巴馬總統這個IOU在未來四年內會加倍奉還。如果我的估計近於事實,台灣的(局部和/或短期)利益將會被衝擊到。(這是我上面說「暫時落幕」的原因。)

 

由於這次決策明快,而且這個決策在國內一定不被中級/地方官員和接受沙文主義的網民們歡迎,這個決策顯示兩個趨勢:一是胡溫體制完全掌握大權(Sisci 2012);一是中、美關係即使不能說如膠似漆,也是牢不可破。兩者都使得形象意識偏執這類不登大雅的因素和偶發事件,不再干擾雙方領導人務實和以共同利益為前提的合作關係(Paal 2012)

 

我難以估計陳光誠事件對一般人民和維權人士的鼓舞和鼓勵;但是,我可以預見類似的事件和抗爭的程度會因為這個事件越來越升高(「反寒蟬效應」)。這個形勢所產生的壓力和動向,很可能促成 - 至少會加速 - 胡溫體制以及習李體制在「政改」的腳步。根據我的觀點和了解,這是一個對中國社會有利的發展方向。

 

在此向陳光誠先生及幫助他逃離山東的那位何佩蓉女士表達敬意。

 

參考文章:

 

* Bequelin, N. 2012, Does the Law Matter in China? (「法」的概念在中國日被運用)https://city.udn.com/2976/4811914?tpno=0&cate_no=0

* Paal, D. H. 2012, U.S.-China Ties Survive Stress Test (中美關係持續穩定)https://city.udn.com/2976/4822666?tpno=0&cate_no=80786

* Sisci, F. 2012, Chen case hints at crack in old consensus mold (中共微調了其決策模式?)https://city.udn.com/2976/4804442?tpno=0&raid=4825359&cate_no=80786#rep4825359

* 胡卜凱 2007《淺談法律和相關概念》https://city.udn.com/2976/2392750



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陳光誠的呼籲 -- G. C. Chen
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How China Flouts Its Laws

 

CHEN GUANGCHENG, 05/29/12

 

SINCE I arrived in the United States on May 19, people have asked me, “What do you want to do here?” I have come here to study temporarily, not to seek political asylum. And while I pursue my studies, I hope that the Chinese government and the Communist Party will conduct a thorough investigation of the lawless punishment inflicted on me and my family over the past seven years.

 

I asked for such an investigation while I was hospitalized in Beijing, after I had left the refuge of the United States Embassy and American officials negotiated my reunification with my family. High officials from the Chinese government assured me that a thorough and public investigation would take place and that they would inform me of the results. I hope that this promise will be honored. But the government has often failed to fulfill similar commitments. I urge the government and people of the United States and other democratic countries to insist that the Chinese government make timely progress in this matter.

 

The central government and the authorities in Shandong Province, Linyi City and Yinan County have many questions to answer.

 

Why, beginning in 2005, did they illegally confine my family and me to our house in Dongshigu Village, cutting us off from all contact with other villagers and the world?

Why, in 2006, did they falsely accuse me of damaging property and gathering a crowd to interfere with traffic and then, after farcical trials that excluded my witnesses and defense counsel, send me to prison for 51 months?

On what legal basis, following my release from prison in 2010, did they turn our home into another, equally harsh, prison?

 

The fundamental question the Chinese government must face is lawlessness. China does not lack laws, but the rule of law. As a result, those who handled my case were able to openly flout the nation’s laws in many ways for many years.

 

Although China’s criminal laws, like those of every country, are in need of constant improvement, if faithfully implemented they could yet offer its citizens significant protection against arbitrary detention, arrest and prosecution. Countless legal officials, lawyers and law professors have labored for decades to produce constitutional and legislative rules intended to prevent a recurrence of the nightmarish anti-rightist campaign and other “mass movements” of the 1950s and the later abominations of the Cultural Revolution of 1966-76.

 

But those protections have been frequently ignored in practice, as they were in my case and in the case of my nephew, Chen Kegui. After the local police discovered my escape from my village in April, a furious pack of thugs -- not one in uniform, bearing no search or arrest warrants and refusing to identify themselves -- scaled the wall of my brother Guangfu’s farmhouse in the dead of night, smashed through the doors and brutally assaulted my brother.

 

After detaining him, the gang returned twice more, severely beating my sister-in-law and nephew with pickax handles. At that point, Kegui tried to fend them off by seizing a kitchen knife and stabbing, but not killing, three of the attackers.

 

Kegui, who is 32 years old, was then detained in Yinan County and, absurdly, charged with attempted homicide. No one has been able to reach him, and he has most likely been tortured even more severely than his father was. Although China signed the United Nations convention against torture in 1988 and has enacted domestic laws to implement it, torture to extract confessions is still prevalent.

 

Moreover, none of the lawyers his family has sought to retain have been allowed to work on the case. Instead, the authorities have announced that Kegui will be forced to accept the assistance of government-controlled legal-aid lawyers.

Although China has yet to enact any remedy similar to habeas corpus, which allows people to challenge a detention before the courts, its current justice system is based on the assumption that prosecutors have the independence to correct the misconduct of the police and the extralegal thugs they often employ. Judges, in turn, are supposed to independently correct misconduct by prosecutors and the police when cases reach the courts.

 

In real life, however, cases of any significance are controlled at every level of the judicial system by a Communist Party political-legal committee, rather than by legal officials. From the Yinan County Basic Court to the Supreme People’s Court in Beijing, it is this committee that directs the actions of the police, prosecutors and judges, transforming these ostensibly independent actors into a single, unchallengeable weapon. These political-legal committees have eroded decades of progress in implementing the rule of law.

 

While my wife and I now have the opportunity to study the law and meet freely with a broad range of American officials, law professors and legal reformers, the independent defense lawyers who tried to help me and now my nephew face daily danger and unfair treatment.

 

Any serious investigation of the injustices that we and hundreds of thousands of others have suffered must determine who is beating, kidnapping, disbarring and prosecuting these lawyers and threatening their families, and why defendants are compelled to accept the nominal legal assistance of government-employed lawyers instead of counsel of their choosing.

 

China’s government must confront these crucial differences between the law on the books and the law in practice.

 

This issue of lawlessness may be the greatest challenge facing the new leaders who will be installed this autumn by the 18th National Congress of the Chinese Communist Party. Indeed, China’s political stability may depend on its ability to develop the rule of law in a system where it barely exists. China stands at a critical juncture. I hope its new leaders will use this opportunity wisely. As an ancient Chinese proverb says, “If one is not righteous oneself, how can one rectify others?”

 

Chen Guangcheng is a special student at the U.S.-Asia Law Institute at the New York University School of Law. This essay was translated from the Chinese.

 

http://www.nytimes.com/2012/05/30/opinion/how-china-flouts-its-laws.html?_r=1

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