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将薄案公开审理的经验提升为普适性制度

【这是笔者应邀为中美交流基金会(the China-United States Exchange Foundation )出版的China-US Focus写的评论文章的中文原稿,英文本附后,亦可见http://t.cn/z8I56GY

举世瞩目的薄熙来受贿、贪污、滥用职权案已经结束了庭审,正等待宣判。

薄熙来案5天的庭审,给世人印象最深的,或许莫过于其所展现的公开、透明程度。在这方面,与薄熙来先生有许多恩怨的前律师李庄先生的看法很有代表性,他说:“济南中院通过微博把庭审笔录进行公布,基本做到了公开、透明,给全国的法院做了一个示范”;“公布全部庭审笔录,把它放到阳光下,让全社会监督,这是一种大胆的突破”,“值得赞扬和推广。”

过去对中国官方行为偏好苛责的贺卫方教授,这次也出乎意料地对薄案庭审的公开透明程度给予了肯定。他说,“尽管对于民众和媒体旁听的自由还是有明显的限制,但是,最令人意外的是,法院通过微博把庭审中的基本情况都显示出来。从文字数量与庭审时间的比例看,有所筛选,但似乎大多数法庭言辞都发布出来了。这在同类案件中是史无前例的。”

就连被告人薄熙来自己,也在该案庭审的最后陈述阶段赞扬了审判程序的公开公正性。他说,“这次审判历时五天,让控辩双方都有机会充分发表意见,还有微博传送了信息,表明了中央搞清事实、追求公正的决心,也使我对中国司法的未来又增添了信心。”

不过,我也注意到,社会上有一种带有相当普遍性的议论,其大意是:如此公开透明的审理程序,只有薄熙来这样的前高官才能享受到,对于普通被告人或当事人来说,这种公开性还无异于司法上的“奢侈品”。这种说法不太符合实际,因为,过去许多年来,所有案件审理的公开透明度通常都很低,包括被告人也曾是政治局会员的陈良宇等人的案子。但是,这种说法中也确实饱含着一种合理的担忧:法院现在审大人物的案子就公开透明,今后审普通被告人或当事人的案子可能还是一如既往地神神秘秘、藏藏掖掖,让他们享受不到受公开审理的权利。确实,中国法院过去长期实行的那种半公开、不公开乃至秘密的审判,背离了宪法关于法院审理案件公开进行的规定和精神,也严重损害了司法的公信力和权威。这种情况应该改变。

为实施好宪法相关规定和精神,推进司法公正,也为消除公众的上述担忧,中国非常有必要以薄熙来案的审理为契机,将薄案公开审理的经验加以体系化,提升为全国各级法院审理各类案件都必须遵循的制度。

中国宪法第125条规定:“人民法院审理案件,除法律规定的特别情况外,一律公开进行。”宪法规定法院审理案件公开,目的有两个:一是保证公民在受到刑事追诉或陷入其它法律纠纷中时享有获得公开审判的权利。在世界宪法史上,这是公民的一项基本权利。在我国宪法中,它也应该理解为宪法间接确认的基本权利。宪法规定法院审理案件公开的第二个目的,是把法院、法官对案件的审理活动置于社会大众的监督之下,预防司法腐败和裁判不公。

严格实施宪法关于法院公开审理的规定,对于中国建设权威的和有公信力的司法体制,意义重大。法院审理案件公开透明,直接有利于保障审判独立。法官立场是否中立,真审还是假审、演戏,以及案件是否存在法外干涉、未审先定等违法情形,在公开审理中都会在公众面前暴露无遗。因此,公开审理会极大地增加通过法外路径影响审判结果的成本,从而必然减少对审判的法外干涉。

审判公开也是推进司法公正、减少司法腐败的保障措施。很大程度上可以说,司法不公开即司法无公正,司法公开程度与司法公正程度成正比。而且,司法不公与司法腐败是孪生兄弟,司法公正程度与司法腐败程度成反比。这些都是世界司法史经验地证明了的规律。

另外,公众若能直观地看到法院、法官依法裁断案件,解决纠纷,落实正义,法院、法官在公众心目中自然不怒而威。公开审理案件的法院,是对公众进行法律教育的最生动课堂。法院、法官公开透明审理案件,无异于以案说法,而说法者自然能从公众那里获取一份对法律“教师”的尊重或尊敬。

薄熙来案的庭审,客观上为中国法院公开审理案件树立了一根获得社会广泛认同的标杆。但中国若要以此为契机,将其中的公开审理经验加以体系化,提升为法律制度,则还需要做许多努力。

前面说到,公民受刑事追诉或陷身法律纠纷时能得到法院公开审理,是公民的一项基本权利。因此,在中国这样一个严格实行制定法制度的国家,公民该项基本权利应该用立法措施来保障,不可以任由法院处置。将来这方面的立法措施至少应该包括公民旁听自由、新闻报道自由和法院充分披露信息等方面的内容。但是,考虑到制度形成的渐进性,我们又不得不承认在立法机关采取措施之前,公民行使这项基本权利还只能先由法院以内部规定等形式加以规范。

我认为,现在到了中国最高人民法院展现对公民涉案受公开审理这项基本权利的尊重,并为保障这项基本权利而制定全国统一的案件审理公开规则的时候了。当然,最高法院制定和实施这方面的行为规范,应视为最高国家权力机关运用立法手段保障这项基本权利之前的一项过渡措施。

Institutionalize the Practice of Open Trial in the Case of Bo Xilai

Tong Zhiwei

The case of Bo Xilai, who was accused of bribery, corruption and abuse of power, has captured the world's attention. Now, the trail was over with the verdict to be announced at a later date.

What Bo’s five-day public trial has impressed the public most is its fairness and transparency, as has been typically pointed out by Li Zhuang, a former lawyer who developed both gratitude and resentment toward Bo Xilai, “through microblogging records of the trial on its official site of Sina Weibo( most popular microblog website in China), the Jinan Intermediate People’s Court has set an example for other courts in terms of openness and transparency;” “To bare all trial records for public review and scrutiny is an audacious breakthrough”, “that should be applauded and popularized. ”

He Weifang, a professor known for his relentless criticism of the behaviors of Chinese officials, has also come up unexpectedly to affirm the fairness and transparency of the trial, “For all the noticeable limit of attendance at the trial by the general public and the media as observers, the court has surprised us all by microblogging the basic proceedings of the trial,’ he pointed out, “adding that although a comparison of the number of the words of the records and the length of the time of the trial points to some omissions, most of the statements and arguments heard in the court have been made public, a step never taken by any other court when handling similar cases before.”

Even Bo, the defendant himself, took the chance of his final statement in the court to praise the openness and fairness of the trial. “Offering both the accuser and the accused an opportunity to fully air their opinions and microblogging all information about the hearing, the five-day trial has demonstrated the determination of the Party Central Committee to clarify facts and uphold justice and further increased my confidence in the future of our country’s judicial system,” he concluded.

This author has also noticed, however, a common public view that roughly comes down to the point that such openness and transparency is possible only during the hearing of cases involving high-ranking officials such as Bo Xilai and will remain a legal ‘luxury’ for ordinary defendants and other parties. This viewpoint does not tell the reality. For many years in the past, there had always been a low degree of openness and transparency during the hearing of almost all cases, including that of political bigwigs such as Chen Liangyu, the former mayor of Shanghai. There is also an element of justified concern, however, in this viewpoint that our courts, for all their openness and transparency when hearing cases of bigwigs, will still handle cases involving ordinary defendants and parties in a secretive and covert manner as in the past and deny the latter the right to public trial. Indeed, the up-to-date practice of Chinese courts hearing cases in a semi-open, covert and even secret manner has violated the constitutional mandates and spirit calling for public trial of all cases and greatly jeopardized the creditability and authority of our judicial system, and should be terminated right away.

In order to execute pertinent constitutional mandates and spirit, promote judicial fairness, and free the general public from their aforesaid concern, it is absolutely necessary for China to take the opportunity of Bo’s trial to systematize the experiences of public trial of cases and sublimate them into a rule governing the hearing of all cases by courts at all levels.

China’s Constitution prescribes in Article 125 that except in special circumstances as specified by law, all cases in the people’s courts are heard in public. By demanding the public hearing of cases, the Constitution is driving at two purposes. First of all, it guarantees the right of all citizens to public trial in case of criminal prosecution or involvement in other legal disputes, a fundamental right enjoyed by citizens throughout the constitutional history of the world. In the framework of our constitution, it should also be taken as a fundamental right indirectly affirmed by the constitution. The second purpose of the above-mentioned constitutional provision is to submit the work of all courts and judges to public supervision and avert judicial corruption and unfair ruling.

Observation of the constitutional mandates on public hearing of cases by courts is of great significance to the development of a judicial system of authority and creditability. Hearing of cases in public and with transparency contributes directly to independence of trial and decision because the public will see clearly whether the judges have remained impartial, whether the hearing has been conducted in great earnest or as a farce, whether there has been any extrajudicial intervention, or whether verdicts have been reached before hearing. Public trial will tremendously increase the cost of extrajudicial maneuvers to manipulate the results of trial and decision, and greatly cut the number of instances of extrajudicial intervention.

Public hearing of cases is also a safeguard for promoting judicial fairness and reducing judicial corruption. To a great extent, judicial covertness begets judicial injustice, and the degree of judicial openness determines the extent of judicial fairness. Judicial injustice and judicial corruption come in pair, while the extent of judicial fairness and that of judicial corruption vary inversely. All these have been rules proved time and again by experiences in the world judicial history.

Also, courts and judges will naturally win awe and respect from the general public if they hear cases, settle disputes and uphold justice right under the latter’s eye. A court hearing cases in public will be a classroom offering live legal lessons to the broad masses of people. By hearing cases in public, courts and judges are actually teaching law to the public through these cases and win respect and esteem from their ‘law students.’

Objectively speaking, Bo Xilai’s trial has set a model for Chinese courts to hear cases in public, a model that has won widespread support and acknowledgement from the broad masses of people. There is much more to be done, however, if China hopes to take this opportunity to systematize the experiences accumulated therein and sublimate them into a legal regime.

As has been pointed out above, access to public trial in case of criminal prosecution or involvement in other legal disputes is a fundamental right enjoyed by all citizens. As a country that sticks closely to the system of statutory law, China should take legislative measures to guarantee the enjoyment of this basic right by all its citizens instead of leaving it to willful disposal by courts. These legislative measures, when taken in the future, should include at least contents such as free attendance by the public as observers, freedom of media coverage, and total disclosure of information by courts. In view of the process of formation of a system, however, exercise of this basic right by the public will still be decided by courts through internal regulations before endorsement of such legislative measures, we have to admit.

As believed by this author, it is now high time for the Supreme People’s Court to respect the basic right of Chinese citizens to open trial in case of law violation and formulate a unified national code governing public hearing of cases for this end, although formulation and implementation of such a code of conduct by the Supreme People’s Court will only be counted as an interim step taken before the adoption of any legislative measures by the highest organ of state power to guarantee public enjoyment of this fundamental right.

(Tong Zhiwei is a professor of constitutional studies at the East China University of Political Science and Law.

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