(Minghui.org)
“In a lawful society, the legislation should be supreme and neither political parties nor individuals should be above them. Dictators view laws as their servants or puppets, as decorations to cover their tyranny and tools to strengthen their power. The actions of the Chinese Communist Party (CCP) and the German Nazi Party proved this point.” – Preface
In 1935, German Minister of Justice Franz Gürtner insisted on prosecuting a high-ranking secret agent and a group of stormtroopers. Gürtner believed that he had enough evidence to prove beyond doubt, that these individuals committed the most terrifying crime of torturing prisoners in a concentration camp. When he turned in the evidence to Hitler, Hitler ordered him to drop the prosecution.
This shouldn't happen in a democratic country with an independent justice system, but this was the case in Nazi Germany, where the law was Hitler's slave that followed his orders without question. What Hitler said was the law, as Hermann Göring and many in Nazi Germany once indicated. Hitler himself even said in public that he was the supreme judge of the Germans, and had the power to put anyone to death.
During his reign, Hitler tainted the judicial system. He began by purging the judges he didn't approve.
During the Weimar Republic period, German judges were governed only by the law and couldn't be easily removed. After the Nazis took over, they promulgated the Civil Service Law on April 7, 1933. Jews were immediately removed from the judicial system, as was anyone who didn't believe in the Nazis, i.e. those who were “Not ready to speak up for the interests of the national socialist country at all times.” (*) Judges not completely obedient were threatened. On January 26, 1937, the Nazis promulgated a new article in the Civil Service Law, stipulating that public servants- including judges who were politically unreliable- should be dismissed. At the same time, all judges were forced to join the German National Socialist Legal Worker's Association controlled by the Nazis.
In 1936, in order to force the judges to loyally execute Hitler's will, the Nazi Justice Specialist and the leader of national legal system Hans Frank warned the judges, “The ideologies of national socialism, especially those explained in the Party Platform and the leader's speeches are the foundation of all basic laws.” Frank further explained, “There is no law independent of national socialism. Before you make a decision, you must think 'What would the leader do in my position?' In every decision you make, you must think 'Does this decision conform to the conscience of the German people's national socialism?' You will then have a very solid foundation. When you combine this foundation with conformance to a national socialist country and your understanding of the undying will of Adolf Hitler, the decision you make will then have the authority of the Third Empire, which exists forever.” (*)
On April 26, 1942, Hitler warned the judges at the last meeting of the Nazi Germany Parliament, that if any of their actions demonstrated that they didn't understand the current needs, that they would be dismissed from their positions - no matter how powerful they were. Hitler officially became the supreme judge in Germany at that meeting. He was “Not restrained by any current laws” and had the right to remove any official he deemed unfit. Later, the Nazis promulgated the General Guidelines which all judges were required to follow.
In July 1942, Joseph Goebbels claimed: “The concept of 'judges can not be recalled' came from a foreign concept that is in conflict with the Germans.” He also said that judges should “Not obey the law as much as obey a basic concept - criminals should be purged from society.” (*) That same year on August 22, Hitler appointed Otto Thierack as Minister of Justice, and authorized that he “was not restrained by current laws.” Martin Bormann and Hans Lammers then built the “National Socialist Judicial System.”
As Hitler rushed to tighten control of the judicial system, he also reduced the jurisdiction of the courts. According to the Party and State Unification Law promulgated on December 1, 1933, the court could no longer try the stormtroopers, Nazi Party members, or members of the Protection Squadron (the SS) who committed crimes. These individuals could be prosecuted only by a special Nazi institution. In 1935, the Breslau Procuratorate stipulated that no courts could rule on the constitutionality of any government action.
The Nazi government bypassed the judicial system and set up specialized courts to prosecute politically sensitive cases.
The Special Court was established based on a law passed on March 21, 1933. A Special Court was inserted within the supreme court of every state that was in charge of political cases that “Viciously attack the government.” The Special Court was composed of three judges who were required to be “loyal Nazi Party members” and no jurors, which abolished the pretrial system and limited the right of appeal of the accused. The accused was allowed to hire a lawyer, but the lawyer selection required approval by a Nazi Party official. A prosecutor decided whether a case went to a general court or a Special Court. In a law passed on November 20, 1928, the category of cases tried in the Special Court was further expanded. In addition to political cases, the Special Court also handled criminal cases. Pastor Martin Niemoller of the Confessing Church was tried in a Special Court in March 1938 for standing against the Nazification of the German churches. The Court accused him of abusing the forum to collect donations and sentenced him to seven months in prison. He was held in a concentration camp until Nazi Germany collapsed.
The People's Court was another specialized court. On April 24, 1934, the People's Court was established within the Berlin Court; its main task was to prosecute anti-Nazism cases and the anti-Nazi regime. On July 14, 1934, the People' Court replaced the German State Court. The People's Court consisted of two judges and five members from the Nazi Party, the SS and the armed military, and was basically responsible for secret interrogations. During an interrogation, the German national flag and emblem was not present behind the judges, but were instead replaced with pictures of Hitler, King Friedrich and the Nazi Party flag. Defense lawyers were required to be “qualified” Nazi Party members. The trial process was similar to that of a temporary court-martial during wartime. Most of the accused received death sentences. The case of Hans and Sophie Scholl, students of the University of Munich who stood against the Nazi ruling, was tried in the People's Court. The case of the attempted assassination of Hitler on July 20, 1944, was also tried there.
Considering that Hitler was the law in Nazi Germany, then in a communist country, the will of the Communist Party is the law. In China, a better description is: “The Party is above the law” .
Many Chinese people remember a very symbolic event which occurred during the Cultural Revolution. On August 5, 1967, after losing another brutal struggle with Mao Zedong, former Chinese statesman Liu Shaoqi protested with China's Constitution in his hand. He said, “It does not matter how you treat me as an individual, but I am the president of the People's Republic of China and I will guard the dignity of the country's president. No one can recall the president. This action requires a trial and it must be passed by the People's Congress. I am a citizen too. The Constitution assures the protection of my rights. Anyone who violates the Constitution will be severely punished by the law!”
Liu's protest was ignored, and the persecution of Liu escalated. Two years later, he died due to persecution. His name was not allowed to be announced when he was cremated.
In China, the Constitution is in theory, the foundational law which every individual must abide by. The president is elected by the People's Congress, and only Congress may recall him. Liu's protest was absolutely right! However, in reality under communist rule, the Constitution is not the fundamental law, but the will of the Communist Party reigns. During his rule, Mao's will determined the foundational law. The president was not elected by the People's Congress, but was appointed by the CCP. Mao appointed the president and he could appoint or recall anyone he desired. Mao insisted on launching the Cultural Revolution because he disagreed with Liu and perceived him as a threat, so he wanted him removed. As a result, Mao didn't obtain the Congress' approval to remove Liu. Ever since the CCP has ruled China, the Constitution has never protected citizens' legal rights - not even the president's. As for Mao, no matter how he violated the Constitution, he could never be severely punished by the “law”. He crafted the Constitution, and Liu clearly understood this, and his protest was simply releasing his anger towards Mao.
The case of Liu being persecuted to death is a pertinent example of how ineffective the law is in China.
The judicial system in China was never independent under the CCP's one-party rule. The CCP always acts above the law - since it makes all the laws and reflects its will within them. The entire political and legislative system resides under the CCP. The head of this system has always been the leader of the CCP, and CCP members hold most of the key positions.
The CCP's operations outside the law also manifests in their authority to make decisions in all significant, and especially political, cases.
Since the CCP came into existence, Party commissioners have decided on who gets arrested and killed. Jiang Hua, former president of the Supreme People's Court admitted, “In the past, Party commissioners approved whom to arrest and kill in the military and revolutionary bases. It's become systematic now.” The CCP kept the system following its takeover of China in 1949. The Party Commission decides on the cases and the Political and Legislative Affairs Committee (PLAC) under the Party Commission executes the decisions. The PLAC secretary at every level is usually the standing committee member or deputy secretary of the Party Commission of that same level.
The Party Commission hides behind the PLAC and manipulates its power. Controlled by the CCP, the PLAC is the highest organization of all public, Procuratorate, legal, judicial, and national security networks. The PLAC is an organization that is above the law, and is the highest and the last “judge” in important sensitive political cases. Since the Party Commission and the PLAC act outside of judicial procedures while interfering with cases, they do not leave a trace of their actions.
The Party Commission and PLAC work within a mysterious black box, so naturally, China has no real judicial independence or justice system. The Party Commission and PLAC are concerned only with politics and not laws. Many people do not know that not only are PLAC operations concealed, but so are the operations of the court. For special important or complex cases, there is usually a secret “judicial committee” which renders the final decision.
During the Cultural Revolution, the entire country of close to one billion people lived under only one law, which was “Mao's instruction.” The judicial, legal and administrative systems no longer existed. Mao surpassed Hitler, in that there was actually no law. Mao's will was everything.
Following the Cultural Revolution, the CCP brought back the “Rule by law” slogan and inserted it into the Constitution. The CCP promulgated many complicated laws, but “Party is above everything” remained unchanged.
For example, Falun Gong practitioners did not violate any laws in China, yet benefited society by being good people. Only because Jiang Zemin and his regime didn't approve of this practice, did they ignore the freedom of belief protected by the Constitution and subsequently persecute it. Falun Gong became the enemy of the government and the public - only because Jiang claimed “Falun Gong is a cult.”
In September 2009, Ms. Gao Deyu from Xichang, Sichuan Province was arrested simply because she practiced Falun Gong. Her family then hired a lawyer to defend her. The lawyer tried to meet with Ms. Gao but never succeeded, as a result of interference from all levels of law enforcement. Liu (first name unknown), deputy secretary of the PLAC of Xichang openly told the lawyer, “Don't talk to me about the laws, we don't follow the laws.” In September 2010, the Xichang City Court sentenced Ms. Gao to 12 years of imprisonment.
On December 16, 2009, the Qian'an City Court in Hebei illegally sentenced practitioners Ms. Liang Xiulan to eight years, Ms. Zhang Liqin and Ms. Shao Lianrong seven and a half years, Ms. Li Xiuhua, Mr. Sun Yongsheng, and Mr. Yang Zhanmin seven years of imprisonment. Facing questions from the practitioners' families, chief judge Feng Xiaolin confessed, “The trials of Falun Gong practitioners do not follow the law.”
Then what do the trials follow? The judge who sentenced Mr. Zhang Chunqiu from Yiyang, Hunan Province said, “Now, the CCP's power is overriding the laws to suppress Falun Gong. We only went along for the show. There is nothing we can do and you cannot blame us.”
On December 17, 2008, the Suzhou City Court in Jiangsu sentenced practitioner Mr. Lu Tong to four years of imprisonment. Mr. Lu's daughter appealed for her father and asked the court to retry the case. Judge Gu Yingqing told her, “Don't expect the law to be independent of politics. Why are you talking to me about the law? I am talking about politics.”
Director of the 610 Office in Nong'an County, Jilin Province Ma (first name unknown) told the family of an illegally sentenced practitioner, “We decide everything here and we care about the politics, not the law. You can sue us whenever you want.”
In the so-called “reformed, open China”, law and judgments by law are only for show; only politics are operational. Clearly, the will of the leaders is the law.
(To be continued)
(*) - Quotes with an asterisk were translated into Chinese for the original article, and then from Chinese to English for this article. Due to limited resources, we are unable to verify the original quotes with complete accuracy.
Category: Perspective
