1883, Queen Victoria of England was shot, but she was not hit. After investigation, the court found that the gunman was insane and he was acquitted. The queen felt aggrieved that "he must be guilty, and I saw him shoot with my own eyes", but the judge still only sentenced the gunman to a mental hospital, not a prison.
This is a story that happened on the east coast of the Atlantic Ocean 13 1 years ago. Because of Her Majesty's power and respect, the judge refused to violate the law, because without individual and concrete justice, there would be no group justice and there would never be abstract justice. 13 1 year later, in China on the west coast of the Pacific Ocean, there appeared many stories contrary to the above stories ── stories of denying concrete justice and individual justice with so-called abstract justice, and the chief justice here even made a loud voice for this, threatening that Xia Junfeng, who is being executed, will continue to be executed in the future:
"It is very dangerous for such people not to kill!"
This is what Zhou Qiang, the current President and Chief Justice of the Supreme Court, said a few days ago when talking about the Xia Junfeng case, which caused widespread controversy. He said, "Xia Junfeng was a street vendor, killing two chengguan and seriously injuring one. However, just because Xia Junfeng is a street vendor and the other party is a chengguan, everyone is biased against chengguan, so some people, even some big V in society, encourage that this person can't be killed, but it is very dangerous for such people not to kill, just like two people quarreling behind closed doors and you kill someone. If this is also a legitimate defense, this society will be chaotic. " Zhou Qiang took this opportunity to emphasize the importance of fair justice.
The question is, what is fairness and justice? Is it justice, as Justice Zhou Qiang said, to kill all the people he thinks will cause "chaos" and "very dangerous"?
When we talk about the judicial justice of a specific case, we will involve many specific details of judicial procedures. Only when all the details can stand the test of human rights protection standards can we give a positive evaluation of the judicial justice of the case. Therefore, when we talk about judicial justice, it must be concrete, not abstract; Must be contextualized, not empty.
Specific to the Xia case, the original strict judicial procedure should be like this: the prosecution ruled out all possibilities except intentional homicide in Xia Junfeng through court investigation, court debate and cross-examination procedures-these possibilities include manslaughter, intentional injury to death, justifiable defense and excessive defense (including excessive defense without punishment and excessive defense with punishment), and the court can find Xia Junfeng guilty of intentional homicide. This is the principle of excluding reasonable doubt in criminal proceedings.
However, in the Xia case, the prosecution and the court persecuted Xia Junfeng from the beginning on the basis of presumption of guilt. An obvious procedural injustice is that the defense lawyer of the first instance applied to Shenyang Intermediate People's Court to allow six witnesses, including Shi, Ding Yulin, Shang Haitao, Jia and Jason, to testify in court within the validity period of the law, but Shenyang Intermediate People's Court rejected this request by ignoring inaction, which made the judicial procedure of the case always biased towards the victim and covered up their possible major faults. This violation of procedure continued until the second trial and the death penalty review stage.
Regardless of China's criminal procedure law, it doesn't even give every defendant the right to silence-this is the basic litigation right of the parties in criminal cases for a long time, that is, the criminal procedure law itself has failed to cross the line of human rights protection in China, which is also an unfair case with major procedural defects.
It is such a case with major procedural flaws and no justice at all, which is strongly described as a typical case of "judicial justice". It is said that the urban management is suspected of illegally detaining Xia Junfeng and violently attacking Xia Junfeng as "two people quarreling behind closed doors", thus saying that "it is very dangerous for such people not to kill" is extremely disproportionate to the identity and quality of the Chief Justice.
Although in China, where the judiciary is not independent, the Chief Justice is just a nominal empty label, in the constitutional history of constitutional countries, judicial independence, as one of the most important institutional equipment of constitutionalism, has always been not only the design of the system, but also the product of unremitting pursuit and efforts of the law. During this period, especially in the transitional era, judges have always been at the forefront of the history of judicial independence by resisting various forces to interfere in the judiciary through specific cases.
In today's China, the control and interference from the party power has always been the first reason why the judiciary cannot be independent. Compared with this factor, the severity of other forces' interference in judicial independence is almost negligible-such as the so-called "great public anger" and other public opinion. Even so, looking at the history of the rule of law in various countries, we can still see that judges who really love justice cannot completely bow to the interference forces from all sides. In addition to the famous proverb "A king is not subject to man, but to God and the law" written by Justice Blake of the English throne court as early as13rd century, there was a famous argument about this in Britain 406 years ago. Justice Kirk, who disobeyed King James I of England, left a famous quip in the history of English law, "... Your Majesty is not proficient in the laws of the Kingdom of England. The cases to be handled by judges often involve the life, inheritance, movable property or immovable property of subjects. Only natural reasons can't be handled well, and human reasons are needed. Law is an art that requires long-term study and practice before one can understand it. "
This has become one of the important historical chapters in the legal professionalization movement. In 16 17, in the famous wage agency case, the king-or James I-wrote to 12 judges, asking them to stop the trial before consulting with themselves. Other justices 1 1 expressed their willingness to take action, and only Justice Kirk replied, "If this happens, I am willing. Justice Kirk was later dismissed, but he said, "I don't want to do what the king asked me to do." "The judge should not postpone the trial of the case at the request of the king."
These famous stories in the history of law show that judicial independence has never been given by anyone, but has been won step by step, sweat and even blood.
Japan's judicial independence in modern times also experienced a hard struggle. 189 1 year, that is, just two years after the promulgation of the Imperial Constitution, the Russian Crown Prince Nicholas, who was visiting Japan, was seriously injured by the Japanese nationalist Sanzang Tsuda in Otsu. The serious diplomatic pressure caused by the Otsu incident made the Japanese government put pressure on the Supreme Court (Grand Court) for many times, asking them to sentence Tsuda to death. Although the Constitution has just been implemented and the system construction in all aspects has just started, Qian Wei Erdao, the president of the Grand Court, has never forgotten his duty, and refused every time on the grounds of "judicial independence, not subject to government orders", and Tsuda was finally sentenced to life imprisonment. This case, as praised by Japanese writer Koji Yamamoto in "The Highest Story-50 Years of Japanese Justice", "President Kojima defended judicial independence with courage and wisdom" has been shining like a beacon in the history of Japanese courts for a hundred years.
In fact, even in countries with mature constitutional systems, it is not uncommon for various forces to interfere with judicial independence, especially the power intervention from the executive branch, so that when the justices of the Supreme Court of the United States nominate their own presidents in violation of regulations, presidents often regret or even curse. For example, Truman cursed Justice Clark, who was nominated to the Supreme Court, and said, "There is no doubt, Tom? Clark is my biggest mistake ",even swearing" He is a stupid bastard "; Roosevelt Sr. berated Holmes, who was nominated by him as the Supreme Court Justice. "I can carve a judge with bananas, which is more backbone than him!" Justice Holmes is recognized as one of the few greatest justices in American history. Almost all American presidents have experienced the "betrayal" of their nominated justices, which is an excellent example of justices maintaining judicial independence without favoritism.
Justice is often regarded as the last line of defense of justice, and the highest judicial organ of a country is often regarded as the most serious expression of some ethical concepts cherished and advocated by this country, and it is the pantheon that defends the spirit of the rule of law and expresses human rights concepts. Although the power enjoyed by the Supreme Court and its justices is a kind of passive power "neither money nor sword", its final jurisdiction makes it have special sacred significance. Because of this, the words and deeds of the Chief Justice often represent the inherent quality of a country's justice.
When Justice Zhou Qiang said that "it is dangerous to kill such a person", he had forgotten his power and responsibility for justice, fairness and justice, returned to the chaotic identity of regarding justice as a tool of class struggle and a knife of party power, and even violated the basic beliefs that a legal person should have: justice and kindness. This is something that a judge in a normal country ruled by law cannot say. The thinking of maintaining stability contained in this kind of discourse is full of collectivism thinking that ignores individual justice and tramples on individual human rights, which is highly toxic and seriously betrays the specific justice quality of justice.
In China, where there is no judicial independence, being the Chief Justice does have many constraints, and it is difficult to fully conform to the spirit of the rule of law. This also means that the efforts of specific legal persons are needed, especially judges at all levels strive for judicial independence, and the Chief Justice of the Supreme Court has a special obligation to stand firm. Even in the harsh institutional environment, we cannot openly safeguard the spirit of the rule of law, and we cannot directly say no to various forces that undermine the rule of law. At least, we can try our best to remain silent, instead of attacking people who have not yet established the spirit of the rule of law. This is the bottom line, if you don't want to go directly from the chief justice to the chief murderer of the rule of law and the chief trampler of human rights.