(2008年,劉曉波因發起和參與起草《零八憲章》,而遭中國司法單位長期監視。隔年,中國檢察機關以劉曉波涉嫌「煽動顛覆國家政權罪」,批准將之逮捕。本文即為劉曉波遭捕後(2009年12月23日),面對司法審判所寫下的無罪辯護(《我的自辯》)。惟中國法院開庭審理此案隔沒幾天,劉曉波就被判處11年徒刑。[資料來源《上報》https://goo.gl/Fz4Ebf])

 

《起訴書》(京一分檢刑訴 [2009] 247號)列舉了六篇文章和《零八憲章》,並總中引述了 330 多字據此指控我觸犯了《刑法》第 105 條第 2 款之規定,犯有“煽動顛覆國家政權罪”,應當追究刑事責任。

對《起訴書》所列舉事實,除了說我“在征集了300余人的簽名後”的事實陳述不準確之外,對其他的事實,我沒有異議。那六篇文章是我寫的,我參與了《零八憲章》,但我征集的簽名只有70人左右,而不是300多人,其他人的簽名不是我征集的。至於據此指控我犯罪,我無法接受。在我失去自由的一年多時間裏,面對預審警官、檢察官和法官的詢問,我一直堅持自己無罪。現在,我將從中國憲法中的有關規定、聯合國的國際人權公約、我的政治改革主張、歷史潮流等多方面為自己進行無罪辯護。

一、改革開放帶來的重要成果之一,就是國人的人權意識的日益覺醒,民間維權的此起彼伏,推動中國政府在人權觀念上的進步。2004年全國人大修憲,把“國家尊重和保障人權”寫進了憲法,遂使人權保障成為依法治國的憲法原則。這些國家必須尊重和保障的人權,就是憲法第35條規定的諸項公民權利,言論自由便是基本人權之一。我的言論所表達的不同政見,是一個中國公民在行使憲法所賦予的言論自由權利,非但不能受到政府的限制和任意剝奪,反而必須得到國家的尊重和法律的保護。所以,起訴書對我的指控,侵犯了我作為中國公民的基本人權,違反了中國的根本大法,是典型的因言治罪,是古老的文字獄在當代中國的延續,理應受到道義的譴責和違憲追究。《刑法》第105條第二款也有違憲之嫌,應該提請全國人大對其進行合憲性審查。

二、《起訴書》根據所引的幾段話就指控我“以造謠、誹謗等方式煽動顛覆國家政權,推翻社會主義制度”這是欲加之罪。因為“造謠”是捏造、編造虛假信息,中傷他人。“誹謗”是無中生有地詆毀他人的信譽與人格。二者涉及的都是事實的真假,涉及他人的名譽與利益。而我的言論皆為批評性的評論,是思想觀點的表達,是價值判斷而非事實判斷,也沒有對任何人造成傷害。所以,我的言論與造謠、誹謗風馬牛不相及。換言之,批評不是造謠,反對更不是誹謗。

三、《起訴書》根據《零八憲章》的幾段言論指控我誣蔑執政黨,“試圖煽動顛覆現政權”。這指控有斷章取義之嫌,它完全無視《零八憲章》的整體表述,無視我所有的文章所表述的一貫觀點。

首先,《零八憲章》指出的“人權災難”都是發生在當代中國的事實,“反右”錯劃了50多萬右派,“大躍進”造成了上千萬人的非自然死亡,“文革”造成國家的浩劫。“六‧四”是血案,許多人死了,許多人被投入監獄。這些事實都是舉世公認的“人權災難”,確實為中國的發展帶來危機,“束縛了中華民族的自身發展,制約了人類文明的進步。”至於取消一黨壟斷執政特權,不過是要求執政黨進行還政於民的改革,最終建立“民有、民治、民享”的自由國家。

其次,《零八憲章》所申明的價值和所提出的政改主張,其長遠目標是建成自由民主的聯邦共和國,其改革措施是19條,其改革方式是漸進的和平的方式。這是有感於現行的跛足改革的種種弊端,要求執政黨變跛足為雙足,即政治與經濟同步並進的均衡改革。也就是從民間的角度推動官方盡快啟動還政於民的改革,用自下而上的民間壓力敦促政府進行自上而下的政治變革,從而形成官民互動的良性合作,以盡早實現國人的百年憲政之夢想。

再次,從1989年到2009年的20年裏,我所表達的中國政治改革的觀點,一直是漸進、和平、有序、可控。我也一貫反對一步到位的激進改革,更反對暴力革命。這種漸進式改革主張,在我的《通過改變社會來改變政權》一文中有著明確的表述:通過致力於民間權利意識的覺醒、民間維權的擴張、民間自主性的上升、民間社會的發展,形成自下而上的壓力,以推動自上而下的官方改革。事實上,中國30年的改革實踐證明,每一次具有制度創新性質的改革措施的出臺和實施,其最根本的動力皆來自民間的自發改革,民間改革的認同性和影響逐漸擴大,迫使官方接受民間的創新嘗試,從而變成自上而下的改革決策。

總之,漸進、和平、有序、可控,自下而上與自上而下的互動,是我關於中國政治改革的關鍵詞。因為這種方式代價最小,效果最大。我知道政治變革的基本常識,有序、可控的社會變革必定優於無序、失控的變革。壞政府治下的秩序也優於無政府的天下大亂。所以,我反對獨裁化或壟斷化的執政方式,並不是“煽動顛覆現政權”。換言之,反對並不等於顛覆。

四、中國有“滿招損、謙受益”的古訓,西諺有“狂妄必遭天譴”的箴言。我知道自己的局限,所以,我也知道我的公開言論不可能十全十美或完全正確。特別是我的時評類文章,不嚴謹的論證,情緒化的宣泄,錯誤的表述,以偏蓋全的結論……在所難免。但是,這些有局限性的言論,與犯罪毫無關系,不能作為治罪的依據。因為,言論自由之權利,不僅包括發表正確觀點的權利,也包括發表錯誤言論的權利。正確的言論和多數的意見需要保護;不正確的言論和少數的意見,同樣需要權利的保護。正所謂:我可以不贊成或反對你的觀點,但我堅決捍衛你公開表達不同觀點的權利,哪怕你所表達的觀點是錯誤的,這,才是言論自由的精義。對此,中國古代傳統中也有過經典的概括。我把這種概括稱為24字箴言:知無不言,言無不盡;言者無罪,聞者足戒;有則改之,無則加勉。正因為這24字箴言道出了言論自由的要義,才能讓每一代國人耳熟能詳,流傳至今。我認為,其中“言者無罪,聞者足戒”,完全可以作為當代國人對待批評意見的座右銘,更應該成為當權者對待不同政見的警示。

五、我無罪,因為對我的指控有違國際社會公認的人權準則。早在1948年,中國作為聯合國的常任理事國就參與起草了《世界人權宣言》;50年後的1998年,中國政府又向國際社會作出了簽署聯合國制定的兩大國際人權公約的莊嚴承諾。其中《公民權利和政治權利國際公約》把言論自由列為最基本的普世人權,要求各國政府必須加以尊重和保障。中國作為聯合國常任理事國,也作為聯合國人權理事會的成員,有義務遵守聯合國制定的人權公約,有責任餞行自己的承諾,也應該模範地執行聯合國發布的人權保障條款。惟其如此,中國政府才能切實保障本國國民的人權,為推動國際人權事業做出自己的貢獻,從而顯示出一個大國的文明風範。

遺憾的是,中國政府並沒有完全履行自己的義務和兌現自己的承諾,並沒有把紙上的保證落實為現實的行動,有憲法而無憲政,有承諾而無兌現,仍然是中國政府在應對國際社會的批評時的常態。現在對我的指控就是最新的例證。顯然,這樣的因言治罪,與中國作為常任理事國和人權理事會的成員的身份相悖,有損於中國的政治形象和國家利益,無法在政治上取信於文明世界。

六、無論在中國還是在世界,無論是在古代還是現當代,因言治罪的文字獄都是反人道反人權的行為,有悖於大勢所趨、人心所向的時代潮流。回顧中國歷史,即使在家天下的帝制時代,從秦到清,文字獄的盛行,歷來都是一個政權的執政汙點,也是中華民族的恥辱。秦始皇有統一中國之功,但其“焚書坑儒”之暴政卻遺臭萬年。漢武帝雄才大略,但其閹割太史公司馬遷之舉則倍受病詬。清朝有“康乾盛世”,但其頻繁的文字獄也只能留下罵名。相反,漢文帝在二千多年前就廢除過因言治罪的“誣謗罪”,由此贏得了開朝仁君的美名和歷代推崇的“文景之治”。

進入現代中國,中國共產黨之所以由弱而強,最終戰勝國民黨,在根本上源自其“反獨裁爭自由”的道義力量。1949年前,中共的《新華日報》和《解放日報》經常發文抨擊蔣家政權對言論自由的壓制,為因言獲罪的有識之士大聲疾呼。毛澤東等中共領袖也多次論及言論自由及基本人權。但1949年後,從反右到文革,林昭被槍斃,張誌新被割喉,言論自由在毛時代消失了,國家陷於萬馬齊喑的死寂。改革以來,執政黨撥亂反正,對不同政見的容忍度有大幅度提高,社會的言論空間不斷擴大,文字獄大幅度減少,但因言治罪的傳統並沒有完全滅絕。從四‧五到六‧四,從民主牆到零八憲章,因言治罪的案例時有發生。我此次獲罪,不過是最近的文字獄而已。

21世紀的今天,言論自由早已成為多數國人的共識,文字獄卻是千夫所指。從客觀效果上看,防民之口甚於防川,監獄的高牆關不住自由的表達。一個政權不可能靠壓抑不同政見來建立合法性,也不可能靠文字獄來達成長治久安。因為,筆桿子的問題只能訴諸筆桿子來解決,一旦動用槍桿子解決筆桿子的問題,只能造成人權災難。只有從制度上根絕文字獄,憲法所規定的言論自由權利才能落實到每一位國民身上;只有當國民的言論自由權利得到制度化的現實保障,文字獄才會在中國大地上滅絕。

因言治罪,不符合中國憲法所確立的人權原則,違反了聯合國發布的國際人權公約,有悖於普世道義與歷史潮流。我為自己所做的無罪辯護,希望能夠得到法庭的采納,從而讓此案的裁決在中國法治史上具有開先河的意義,經得起中國憲法之人權條款與國際人權公約的審查,也經得起道義的追問和歷史的檢驗。

 

謝謝大家!
劉曉波(2009年12月23日)

*自由亞洲電臺獲得授權發表 ∕ 2010年1月20日


 

My Self-defense – Liu Xiaobo

DECEMBER 23, 2009

The Indictment (Beijing Procuratorate Branch No. 1 Criminal Indictment [2009] No. 247) lists six of my articles and Charter 08—and then quotes some 330 characters from them—as the grounds for charging me with violating the provisions of Article 105, paragraph 2 of the Criminal Law of the People’s Republic of China, and committing the crime of “inciting subversion of state power,” for which there should be an investigation into criminal responsibility.

I have no objection to the facts listed in the Indictment, except for the inaccuracy of the facts alleged by the statement, “After collecting over 300 signatures . . . .” I did write those six articles. I [also] participated in [the drafting of] Charter 08. But I only collected some 70 signatures, not more than 300. The rest of the signatures were not collected by me. As for using this as the grounds for charging me with a crime, I cannot accept it. During the more than a year since I lost my freedom, as I faced questioning by pretrial police interrogators, prosecutors, and judges, I have always maintained that I am not guilty. I will now enter a not-guilty defense on behalf of myself, using multiple sources, such as the relevant provisions of the Chinese Constitution, the United Nations’ international conventions on human rights, my positions regarding political reform, historical trends, etc.

1. One of the important results of the Reform and Opening Up policy has been the increasing awakening of our countrymen’s consciousness of human rights and the recurrent civil rights defense, driving progress in the Chinese government’s views on human rights. In 2004, the National People’s Congress amended the Constitution to write into it that “the state respects and guarantees human rights,” thus making the guarantee of human rights a constitutional principle of running the country according to law. The human rights that the government must respect and guarantee are the various rights of citizens stipulated in Article 35 of the Constitution, and freedom of speech is one of those fundamental human rights. In expressing differing political views I am exercising the right to free speech conferred to a Chinese citizen by the Constitution. Not only can the government not restrict or arbitrarily deprive me of this right; rather, the state must respect it and guarantee it by law. Therefore, the charges against me in the Indictment are infringing on my basic human rights as a Chinese citizen and violating China’s fundamental state law. This is a typical example of criminalizing speech, a continuation of the ancient practice of literary inquisition in contemporary China. The practice should be morally condemned and investigated as a violation of the Constitution. Provisions in Article 105, paragraph 2 of the Criminal Law may also violate the Constitution and should be submitted to the National People’s Congress for a review of their constitutionality.

2. Based on a few passages it quotes from my articles, the Indictment charges me with “inciting subversion of state power and the overthrow of the socialist system . . . by means of rumor-mongering, slander, etc.,” which is a trumped-up charge. “Rumor-mongering” means fabricating or inventing false information to harm others. “Slander” means besmirching other people’s reputation and character by creating something out of nothing. Both involve the veracity of facts and other people’s reputation and interest. But my opinion pieces are all critical commentaries, expressions of my thinking and viewpoints. They are value judgments, not judgments of facts. They have not caused harm to anybody. Therefore, my opinion pieces have absolutely nothing to do with rumor-mongering and slander. In other words, criticism is not rumor-mongering, nor is opposition slander.

3. Based on a few passages from Charter 08, the Indictment charges me with slandering the ruling party and “attempting to incite subversion of the current regime.” These charges interpret my statements out of context, completely ignoring the views articulated in Charter 08 as a whole, and the consistent views articulated in all of my articles.

First, the “human rights disasters” mentioned in Charter 08 are all facts that have occurred in contemporary China: the Anti-Rightist Campaign wrongly labeled more than 500,000 people as rightists; the Great Leap Forward caused the unnatural deaths of as many as ten million people; the Cultural Revolution created a national catastrophe. June Fourth was an act of murder during which many people died, and many were thrown into jail. These facts are all universally acknowledged “human rights disasters” that indeed brought on crises in China’s development, “held back the development of the Chinese people, and hindered the progress of human civilization. . . .” As for abolishing the one-party monopoly of power, it is merely a request that the ruling party undertake reforms that would return power to the people and eventually establish a free country where the government is “of the people, by the people, and for the people.”

Second, the long-term objective of the values declared and political reform proposals raised in Charter 08 is the establishment of a free and democratic federal republic. It contains 19 reform measures and advocates a gradual and peaceful approach to reforms. In view of the various malpractices of the current lame-duck reform, it requests that the ruling party transform the lame foot into a second leg, namely, that it advance political and economic reforms together in harmony. That is, this should be a reform that comes from the civic angle that pushes the authorities to return power to the people as soon as possible, one that uses bottom-up civic pressure to urge the government to carry out top-down political transformation, thereby creating an interactive, beneficial cooperation between government officials and the people, so as to realize, as soon as possible, our countrymen’s century-old dream of a constitutional government.

Third, in the past two decades, from 1989 to 2009, I have always expressed the view that China’s political reforms should be gradual, peaceful, orderly, and controlled. I have also consistently opposed quick one-leap radical reforms, and even more so violent revolution. These positions on gradual-style reform are explicitly formulated in my essay “Changing the Regime by Changing Society”: Create bottom-up pressure to push forward top-down reform by government through efforts to awaken civil rights consciousness, expand civil rights defense, raise civic independence, and develop civil society. In fact, the implementation of reforms in China during the past three decades has proven that each time an innovative institutional reform measure was introduced and implemented, its most fundamental driving force has always been a spontaneous reform originated by the civic sector. As the recognition and influence of a civic reform gradually grow, they force the government to accept the innovative civic endeavor and turn it into top-down reform policy decisions.

In short, the key words in my approach to China’s political reforms are: gradual, peaceful, orderly, and controlled, with the interaction between bottom-up and top-down [efforts], because this approach is the least costly and most effective. I know the basic common sense of political transformation: that an orderly and controlled social transformation is bound to be better than a disorderly and uncontrollable transformation. Even social order under a bad government is better than total chaos without a government. Therefore, my opposition to dictatorship and monopoly on power as the governing method is not “incitement to subvert the current regime.” In other words, opposition does not equal subversion.

4. China has an ancient admonition: “One loses by pride and gains by modesty.” Among Western proverbs, there is a similar warning: “Pride goes before a fall.” I know my own limitations, and am therefore aware that my public statements cannot be perfect, or entirely correct. In my commentaries on current affairs in particular, it is hard to avoid sloppy arguments, emotional unburdening, misrepresentations, and sweeping conclusions. However, these statements with all their limitations have nothing whatsoever to do with criminal offense and cannot be used as a basis for criminal punishment, as the right to freedom of speech includes not only the right to publish the correct point of view, but also the right to publish an incorrect opinion. Correct opinions and majority views need to be protected; incorrect opinions and minority views need the same rights protection. As the saying goes: I may disapprove of or oppose your point of view, but I resolutely defend your right to publicly express your different viewpoint, even if the viewpoint you are expressing is wrong; only this is the essential meaning of the freedom of speech. There have also been classical summaries regarding this approach in China’s ancient tradition. I call these summaries a 24-character motto: “Say all you know and say it without reserve. Blame not the speaker but heed what you hear. Correct the mistakes you made and guard against those you did not.” It is precisely because this 24-character motto expresses the essential meaning of the freedom of speech that every generation of our countrymen has been familiar with it and passed it down to the present. I believe that the sentence “Blame not the speaker but heed what you hear” in the motto can absolutely be used as a maxim by our contemporary countrymen as they deal with critical opinion, and should, even more, be a warning for the authorities as they deal with differing political views.

5. I’m not guilty, because the charges against me violate the human rights standards universally accepted by the international community. As early as 1948, China, being a permanent member state of the United Nations Security Council, participated in drafting the Universal Declaration of Human Rights. Fifty years later, in [1997 and] 1998, the Chinese government made a solemn commitment to the international community in signing the two international human rights covenants drawn up by the United Nations. One of them, the International Covenant on Civil and Political Rights, lists freedom of expression as the most fundamental universal human right, and requires that various governments respect and guarantee it. As a permanent member state of the UN Security Council and a member of the UN Human Rights Council, China has an obligation to abide by the human rights conventions drawn up by the UN and the responsibility to honor its own commitments, and should implement the human rights guarantees promulgated by the UN in an exemplary fashion. Only in this way can the Chinese government guarantee the human rights of its own citizens in earnest and make its own contributions to the cause of advancing international human rights, thus demonstrating the civilized demeanor of a great nation. Regrettably, the Chinese government has neither fully fulfilled its obligations nor honored its commitments; it has not translated its pledges on paper into real action. China has a Constitution, but no constitutional government; it has commitments, but no action to make good on them. This is still the standard behavior when the Chinese government responds to criticism from the international community. The present charges against me are but the latest example. Obviously, such criminalization of speech runs counter to China’s status as a permanent member state of the UN Security Council and a member of the UN Human Rights Council and is detrimental to China’s political image and national interests, making it impossible for China to win political trust from the civilized world.

6. Whether in China or elsewhere in the world, in antiquity or in the modern and contemporary era, literary inquisition through the criminalization of speech is an act against humanity and human rights. It runs counter to the prevailing trends and the will of the people in our time. If we look back on Chinese history, even in the imperial era of family-based rule, from the Qin [221–206 BCE] to the Qing [1644–1911 CE] dynasties, the prevalence of literary inquisition had always been a stain on those in power in a given regime and a disgrace for the Chinese nation. The First Emperor of the Qin dynasty achieved the unification of China, but the tyranny of his “burning books and burying Confucius scholars alive” lived on in infamy. Emperor Wu of the Han dynasty was a man of great talent and vision, but his decision to have the Grand Historian Sima Qian castrated brought him blame and shame. The Qing dynasty experienced “the golden age of great prosperity from Kangxi to Qianlong emperors,” but the frequent literary inquisitions during their reigns left them with a bad name. Conversely, Emperor Wen of the Han dynasty gained a reputation as an enlightened and benevolent ruler for abolishing the practice of literary inquisition for “crimes of slander” more than two thousand years ago. His reign and that of his son, Emperor Jing (known as the “rule of Wen and Jing,” have been revered by successive generations.

Turning to modern China, the fundamental reason that the Communist Party of China (CPC) could grow from weak to strong, and eventually defeat the Nationalist Party, was the moral strength in its “struggle against dictatorship and fight for freedom.” Prior to 1949, the CPC’s Xinhua Daily and Liberation Daily constantly published articles attacking the Chiang Kai-shek regime for suppressing the freedom of speech and calling attention to visionary individuals who had been charged with speech crimes. Mao Zedong and other CPC leaders also repeatedly made references to the freedom of speech and fundamental human rights. But after 1949, from the Anti-Rightist Campaign to the Cultural Revolution, from Lin Zhao’s execution by a firing squad1 to Zhang Zhixin’s throat slashing,2 the freedom of speech disappeared in the Mao era and the whole country sank into deadly silence in an atmosphere of extreme political oppression. Since the reforms, the ruling party has restored order out of chaos and substantially increased its tolerance of different political views. The space for expression of public opinion in our society continues to expand and the incidence of literary inquisition has decreased substantially, but the tradition of the criminalization of speech is far from being completely extinct. From the April Fifth Movement [1976] to the June Fourth Movement [1989], from the Democracy Wall [1979] to Charter 08, cases of speech crimes have occurred periodically. My criminal arrest this time is but the latest example of literary inquisition.

Today, in the 21st century, freedom of speech has become commonly understood by the majority of our countrymen, and literary inquisition has been universally condemned. In terms of objective effect, it is more dangerous to stop people’s mouths than to dam a river. The tall prison walls cannot hold back free expression. A regime cannot establish its legitimacy by suppressing different political views, nor can it maintain lasting peace and stability through literary inquisition. For the problems that come from the barrel of a pen can only be resolved by the barrel of a pen; when the barrel of a gun is used to resolve them, this can only create a human rights disaster. Only through institutional eradication of literary inquisition can the constitutionally-stipulated right to freedom of speech be realized by every citizen. Only when the citizens’ right to freedom of speech receives actual institutional guarantees can literary inquisition be wiped out from the vast land of China.

Criminalizing speech does not conform to the human rights principles established by the Chinese Constitution, violates international human rights conventions promulgated by the United Nations, and runs contrary to universal moral principles and historical trends. I hope that the not guilty defense I have made will be accepted by the court, so that the ruling of this case becomes significant for setting a precedent in the history of rule of law in China, a ruling that can withstand examination against the human rights provisions of the Chinese Constitution and international human rights conventions, as well as withstand the moral scrutiny and test of history.

Thank you all!

Translator’s Notes

1. Lin Zhao (林昭, 1932–1968) was a writer who, in 1962, was sentenced to 20 years in prison after criticizing the government during the Hundred Flowers Campaign. In prison, Lin famously continued to write critical commentary in her own blood after her writing instruments were confiscated. She was executed in 1968. ^

2. Zhang Zhixin (张志新, 1930–1975) was a dissident member of the Communist Party of China who criticized Mao Zedong and the ultra-left during the Cultural Revolution. She was imprisoned in 1969, and was tortured and gang-raped. Prison guards slit her throat prior to her execution to prevent her from denouncing the government before her death. ^

Translation by HRIC, based on a translation by Wen Huang. https://goo.gl/cPTsbb

廣告