纽约时报：孔杰荣的“中国情”编辑对译文有修改和删节

nicholasxw

　　纽约--70年代初，哈佛大学法学院中国问题专家孔杰荣（Jerome Cohen）在北京与周恩来总理共进晚餐。
　　“我跟周说，'你应该在国际法庭安排个中国法官'，”科恩先生回忆道。“当时，周和席上其他中国官员哄堂大笑。他们把我当杰克·本尼（译者注：美国著名广播电视喜剧演员）了。共产主义中国怎么会想派代表到一个资本主义法官占绝对投票优势的法庭去呢？”

　　“但他们现在却这么做了，”科恩先生说，并举了一个现在看来十分正常、改革初期却几乎无法想象的例子。“所有国际组织都有来自中国的优秀法律人才。”
　　孔杰荣先生可以说开创了美国研究中国法律的先河。近半个世纪来，他始终关注中国的法制进程。最近他荣任纽约大学法学教授，并经常对中国司法、人权问题发表评论。
　　应该说，孔杰荣先生的研究刚起步时，美国对现代中国法律的研究一片空白，甚至中国也没有真正意义上的“法律”。他因此有幸见证了整个中国法律体系从无到有的显著发展。
　　孔杰荣先生刚刚庆祝完自己的80岁大寿，请他评价中国多年来的作为似乎正当其时。
　　多数人如果关注那些对中国侵犯人权的频繁报道，恐怕会回答：“中国做得不好。”在人权问题上，孔杰荣先生基本同意这一评价。过去的几年中，他已成为曝光中国**人权状况或人权缺失状况的重要信息来源，擅长发现中国违反本国相关法律的案例。
　　就在上个星期，孔杰荣发文评论中国政府的一桩“间*案”。一位已加入美国国籍华人的在中国被判8年监禁，原因是帮助其美国老板购得中国石油资源的商业数据库--这一行为被中国**部认定违反保守国家秘密法。
　　《南华早报》刊登了该文的英文版，中文版刊登在台湾《中国时报》上--两份报纸在大陆都颇受关注。文章列举了警方及检方本身在处理这一案件中至少6处违法行为。
　　比如，2007年11月这位美籍华人被中国警方拘捕后，连续数月被关在一处秘密监狱禁止通信，并遭到严刑逼供。近一年，他无法联系辩护律师。其审判过程不仅未对公众公开，连家人也毫不知情--这些全都严重违反了中国自己的刑事诉讼法。
　　此外，美国领事馆在这位美籍华人被拘后32天才得到通知，而依照两国领事协议这本该在4天内完成。
　　尽管孔杰荣先生十分专业地指出这些违法行为，并将其公之于众，但他对中国整体的法制进程却持温和、平衡的态度。他从一整套法制文化的创建中看到了希望--这在过去几乎是不存在的。
　　“中国目前有约20万名法官，近18万名检察官，约17万名律师，还有数千名法学教授。地市级、省级和中央政府机关和多数大型企业，都拥有数以万计的受过法律训练的员工，”科恩说。“虽然所持观点不同，但他们都有志于完善中国的法律体系。这一体系尽管在某些方面暴露了严重缺陷，但在另一些方面确有值得肯定之处。”
　　多年来，中国最高法院派出大量法律代表团访美，孔杰荣先生多次会见过代表团成员。下一个团很快也将赴美学习处罚政策--“因为他们希望有所改进，并且知道他们在国外因为死刑政策广受批评。”
　　“去年，一个团过来学习排除非法证据，希望消除刑讯逼供，”孔杰荣说。他还指出，就在上个月中国出台新法确保刑讯逼供取证不能作为定案证据。
　　“但是，”科恩说，“在‘每个政府都应尊重其公民'这一最基本的原则问题上，中国政府做得还不够。”
　　这是个悖论--孔杰荣将部分原因归结为中国法制建设的意外后果，政府的本意是想借此提高自己的可信度和合法性。
　　“他们大力培养法治观念和权利意识，也训练了一批希望用法律知识帮助普通民众维权的法律精英，”孔杰荣说。
　　但随着用法律挑战权威的人越来越多，如抗议房地产开发商强制拆迁，治安机构介入进来，确保“社会稳定”。
　　“领导的第一反应是打压，”他说。“一旦涉及国家安全，他们甚至不太遵守自己的法律了。”
　　孔杰荣在呼吁关注中国**人权问题方面，拥有所谓的“外国人优势”。他可以自由撰文、随意发表，这是其中国同行们所做不到的。虽然他无疑已多次惹恼当局，但他显然在中国欣欣向荣的法学界广受拥戴。
　　今年5月，清华大学法学院为纪念孔杰荣先生80大寿举行研讨会，探讨刑事司法和辩护律师的作用。这本可视作法制进步的一个表现，虽然一条来自上级通知成了本次活动的瑕疵：在研讨会即将开始的时候，官方要求撤回对一位中国知名刑法辩护律师的邀请，而且对此并未提供任何解释。

英文原文：


LETTER FROM AMERICA
A Scholar's Insight Into China's Budding Legal System
By RICHARD BERNSTEIN
Published: July 28, 2010，New York Times

It was the early 1970s, and Jerome A. Cohen, at the time a specialist on China at Harvard Law School, was having dinner with Prime Minister Zhou Enlai in Beijing.
"I told Zhou, 'You should put somebody on the International Court of Justice,"' Mr. Cohen recalled. "Well, he and the other Chinese officials at the dinner laughed uproariously. They thought I was Jack Benny. Why would Communist China want to put somebody on a court where they'd be outvoted by all those capitalist judges?
"But they've done it," Mr. Cohen said, illustrating one of the things that seems normal in China today but that was almost unthinkable when China's opening to the world was brand new. "They've staffed all international organizations with excellent legal talent."
Mr. Cohen, who essentially created the U.S. study of law in the People's Republic of China, has been following developments in Chinese law for roughly half a century, lately as professor of law at New York University and as a frequent commentator on various legal and human rights cases in China.
It's fair to say that when Mr. Cohen got started, the U.S. study of modern Chinese law didn't exist, and neither really did law in China. And so, he's had a privileged view of a remarkable development, the creation virtually from scratch of the entire Chinese legal system.
Mr. Cohen recently celebrated his 80th birthday, which seemed a good time to ask him to assess how China has done over the years.
Most people who follow the frequent accounts of human rights violations in China would answer that China hasn't done very well, and when it comes to human rights, Mr. Cohen largely agrees. In the last few years he has become a major source of information about human rights, or their absence, in China, his specialty being the instances where China fails to observe its own law.
Only last week Mr. Cohen published an article on the case of Xue Feng, a naturalized U.S. citizen recently sentenced to eight years in prison in China for helping his U.S. employer purchase a commercial database on Chinese oil resources - an act that the Chinese Ministry of State Security deemed to be a violation of the country's catchall state secrets law.
Mr. Cohen's article, published in The South China Morning Post and in Chinese in The China Times on Taiwan - both newspapers that are paid attention to inside China - listed at least half a dozen instances in which the police or prosecutors broke China's own law in their handling of Mr. Xue's case.
After he was seized by the Chinese police in November 2007, for example, Mr. Xue was held incommunicado for months in a secret prison. He was tortured. He didn't have access to legal counsel for about a year. And his trial was closed not only to the public but to Mr. Xue's family - all in blatant violation of China's own Criminal Procedure Law.
In addition, the U.S. Consulate wasn't informed of the arrest of Mr. Xue for 32 days, rather than the four days provided for in the two countries' consular agreement.
But while Mr. Cohen has the expertise to point out these violations and to publicize them, he takes a moderate and balanced view of the overall picture, seeing some promise in the creation of an entire legal culture that simply didn't exist before.
"There are now some 200,000 judges, close to 180,000 prosecutors, roughly 170,000 lawyers, and thousands of law professors, as well as tens of thousands of people with legal training who staff local, regional and central government agencies and most large enterprises," Mr. Cohen said. "And while they have different viewpoints, they all do have an interest in promoting a legal system that's blatantly inadequate in some respects, but does well in others."
Over the years, Mr. Cohen has met with members of numerous legal delegations organized by the Chinese Supreme Court that have visited the United States, including one soon to arrive to study punishment policies - "because they want to improve, and they know they are under enormous criticism abroad because of their death sentence policy."
"Last year a delegation came to study exclusion of illegally obtained evidence, an effort to stop coerced confessions and torture," Mr. Cohen said, pointing out that last month China published new rules trying to ensure that coerced confessions wouldn't be admitted in courts.
"But," Mr. Cohen said, "when it comes to the most basic questions of the fundamental decencies that every government should observe toward its own citizens, this government and this party have failed to cut the mustard."
It's a paradox, explained in part by Mr. Cohen as an unintended consequence of China's efforts to build a legal system, which its leaders want for the sake of credibility and legitimacy.
"They've done a lot to create an awareness of law and rights, and they've trained a series of overlapping legal elites that want to use their legal educations to help people defend those rights," Mr. Cohen said.
But with more and more people seeing the law as a means of challenging arbitrary authority - by protesting being evicted from their homes by real estate developers, for example - the security apparatus steps in to enforce what China often calls "social stability."
"The first reaction of the leaders is repression," he said. "And in cases that involve state security, they're not too fastidious about their own law."
Mr. Cohen has what might be called the foreigners' advantage in calling attention to China's human rights shortcomings. He can freely write and publish, where Chinese colleagues cannot. And, while he has no doubt angered the authorities from time to time, he is clearly held in high esteem by many in the budding Chinese legal world itself.
In May this year, Tsinghua University Law School in Beijing held a conference on criminal justice and the role of defense lawyers in honor of Mr. Cohen's 80th birthday, which would seem to be a sign of progress in itself, even if, as is often the case in China, a note of repression marred the event. At the last minute, one leading Chinese criminal defense lawyer was removed from the program by the authorities - no explanation provided.
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