中文版本
In this beating case, the eight Florida teenagers could spend the rest of their lives in prison. While this videotaped beating is absolutely despicable and the teens should be punished. But life prison? That is too inhumane, too harsh, and too cruel. True, the victim suffered injuries; but she did not die. And these are just teenagers. I guess America has never been about forgiving people and giving them second chances. Based on how the American legal system treats its citizens, it is fair to say that few places in the world violate human rights more atrociously than the U.S. does. And the U.S. always pretends to respect human rights and urge other nations to do so. What hypocrites Americans are.
Yet, on further thoughts, the heartless and merciless American legal system has once put a man accused on shoplifting videotapes (valued at US$150) in prison for 50 years to life. Using that case as an example, sentencing these kids to life in prison is actually not that surprising. The truly surprising part is this: the U.S. (including its political and judicial leaders) calls itself a Christian society. Jesus and Christian teachings emphasize forgiveness, seeing it as a cornerstone of Christianity -- but why is it that Americans value judicial revenge and legal retaliation so much more than forgiveness and giving second chances? Are Americans simply self-righteous liars who say one thing and do another? Or do they fundamentally hate Jesus' teachings in their hearts?
The U.S. spends billions of dollars per year on putting citizens in long term or life prison sentences (be the crime petty or hideous). That is one of the reasons why the U.S. economy is suffering. One one hand, many productive citizens are locked up, unable to produce; on the other, the billions spent on prisons and guards have little or no financial return. (Even its societal value is questionable.) With the U.S. economy getting worse every day, maybe that is exactly what it deserves.
Source: CNN.com
http://www.cnn.com/2008/CRIME/04/10/girl.fights/index.html
Eight Florida teenagers -- six of them girls -- will be tried as adults and could be sentenced to life in prison for their alleged roles in the videotaped beating of another teen, the state attorney's office said Thursday.
art.girls.fight.ho.jpg
The sheriff's office relased the video of a 16-year-old being attacked by other girls.
The suspects, who range in age from 14 to 18, all face charges of kidnapping, which is a first-degree felony, and battery, said Chip Thullbery, a spokesman for the Polk County state attorney. Three of them are also charged with tampering with a witness.
Everyone involved in the case was under a gag order imposed by a judge. The only attorney for the teens who has been publicly identified did not return calls from CNN, and his assistant cited the gag order as the reason. The teens are scheduled for their first appearance in court Friday.
The video shows a brutal scene: The 16-year-old victim is punched, kneed and slapped by other girls. She huddles in the fetal position, or stands and screams at her attackers, but the assault continues. Authorities say the eight teens said they were retaliating for insults posted on the Internet by the attack victim.
Polk County Sheriff Grady Judd called the March 30 attack "animalistic."
"I've been involved in law enforcement for 35 years, and I've seen a lot of extremely violent events, but I've never seen children, 14 to 18 years of age, engage in this conduct for a 30-minute period of time and then make these video clips," he said. Police say the teens planned to post the video on YouTube. Video Watch the disturbing video »
The victim, a 16-year-old from Lakeland, Florida, was hospitalized, and still has blurred vision, hearing loss, and a swollen face, her mother told CNN on Wednesday.
The video shows only girls doing the beating; Judd said the boys acted as lookouts.
The idea of girls administering a vicious beating so they can post the video online may seem shocking, but it's becoming an increasingly common scenario, according to experts and news reports.
Another example was also in the news this week: A high school art teacher in Baltimore told police a female student beat her up last week, and a video of the attack was posted on YouTube, according to CNN affiliate WBAL.
A search for "girl fight" on YouTube gets thousands of results, and a suggestion to also try "girl fight at school, boy girl fight" and other search terms. There's at least one Web site devoted exclusively to videos of girls fighting.
In 2003, 25 percent of high school girls said they had been in a physical fight in the past year, according to a survey by the Centers for Disease Control and Prevention. (The figure for boys was 40.5 percent.)
A Justice Department report released in 2006 showed that by age 17, 21 percent of girls said they had assaulted someone with the intent to cause serious harm.
Frank Green is executive director of Keys to Safer Schools, a group that studies and tries to prevent school violence. He said he's not sure whether girls have actually become more violent, or whether there's just more awareness of their fights.
"In one respect, girls have always been more vicious than boys," Green said. "Their violence is of a personal nature." He said boys usually have some focus and a concrete goal when they fight. "But girls want to cause pain and make the other girl feel bad," he said.
Judd, the Polk County sheriff, said an important part of the plan in the Lakeland attack was to post the video of the beating on YouTube to humiliate and embarrass the victim.
"It's the next stage of cyberbullying," psychologist Susan Lipkins said. "They want to show what they're doing."
"Our kids are being peer pressured, in another sense of a trend, to put these shock videos out there at other peoples' expense," said Talisa Lindsay, the victim's mother. "And I hope that it doesn't come to the point where there's more people's lives that are being affected by having to take a beating for entertainment, or possibly being killed." Video Watch mother describe how the victim is doing »
The suspects didn't have a chance to post the video online before police moved in and seized it, Judd said. The Sheriff's Department made it public, and it wound up on YouTube anyway. Judd recognizes the irony.
"In a perverted sense, we were feeding into exactly what the kids wanted," he said. "But according to Florida law, [the video] is public record, and it's going to be in the public domain whether we agree with that or not."
Judd said the suspects showed no remorse when they were arrested and booked.
"They were laughing and joking about, 'I guess we won't get to go to the beach during spring break.' And one ... asked whether she could go to cheerleading practice," he said.
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Lipkins, the psychologist, says there's a "disconnect between their actions and their thoughts."
"They think the entire society is doing it, and they think it's funny. So they put it on YouTube. And I don't think they expect kids to get really hurt, and they also don't expect to get really caught."
4.10.2008
美國八青年圍毆一青年--八青年可能被判終生監禁﹔難道美國人根本是非常憎恨耶穌的教導﹖
English version
在美國青少年打架可能被判終生監禁。多人圍毆一人﹐雖然行為可恥﹐應該受罰﹐但絕不致於判終生監禁。被毆者只是受傷﹐沒有死去。更可況﹐圍毆者只是14到18歲的青少年。美國社會不給人機會﹐還常假惺惺地說什麼人權第一。相信再沒有人權的地方的苛法也沒有美國的那麼嚴重。美國人真虛偽。
http://www.cnn.com/2008/CRIME/04/10/girl.fights/index.html
但想深一層﹐沒有人性的美國法律機制曾將一名在商店偷錄影帶(價值大約US$150)的人判50年至終身監禁。用之前案件為參考﹐這八位暴力少年可能判終身監禁也不足為奇。唯一奇怪的是﹐美國常稱(包括政治和法院的高層人士)自己為一個基督教社會。基督教主張寬恕--但為何美國人視報仇為上﹐寬恕為下﹖是美國人講一套﹐做一套﹖還是美國人根本是非常憎恨耶穌的教導﹖
美國每年花那麼多金錢時間將市民(不管案件大與小)判處長期監禁或終身監禁﹐難怪經濟衰退那麼嚴重--一方面﹐有大量有生產力的工人被關起來﹔另一方面﹐花在監獄和獄卒身上的金錢的實際回報是少或零。美國經濟一天差過一天﹐真是自作孽不可活。
Links:
- 在美國﹐每一百個成人就有一個在監獄中--還說美國是自由國家?
- 許霆ATM提款數案改判入獄五年--可證明中國法院仍然比美國有理性和人性
在美國青少年打架可能被判終生監禁。多人圍毆一人﹐雖然行為可恥﹐應該受罰﹐但絕不致於判終生監禁。被毆者只是受傷﹐沒有死去。更可況﹐圍毆者只是14到18歲的青少年。美國社會不給人機會﹐還常假惺惺地說什麼人權第一。相信再沒有人權的地方的苛法也沒有美國的那麼嚴重。美國人真虛偽。
http://www.cnn.com/2008/CRIME/04/10/girl.fights/index.html
但想深一層﹐沒有人性的美國法律機制曾將一名在商店偷錄影帶(價值大約US$150)的人判50年至終身監禁。用之前案件為參考﹐這八位暴力少年可能判終身監禁也不足為奇。唯一奇怪的是﹐美國常稱(包括政治和法院的高層人士)自己為一個基督教社會。基督教主張寬恕--但為何美國人視報仇為上﹐寬恕為下﹖是美國人講一套﹐做一套﹖還是美國人根本是非常憎恨耶穌的教導﹖
美國每年花那麼多金錢時間將市民(不管案件大與小)判處長期監禁或終身監禁﹐難怪經濟衰退那麼嚴重--一方面﹐有大量有生產力的工人被關起來﹔另一方面﹐花在監獄和獄卒身上的金錢的實際回報是少或零。美國經濟一天差過一天﹐真是自作孽不可活。
Links:
- 在美國﹐每一百個成人就有一個在監獄中--還說美國是自由國家?
- 許霆ATM提款數案改判入獄五年--可證明中國法院仍然比美國有理性和人性
4.09.2008
美國地區政府陷害無辜--13歲男孩被冤枉謀殺﹐被判終生監禁
美國一名年僅13歲男孩在2003年被冤枉謀殺﹐當作成人檢控和審判﹐罪名成立﹐被判終生監禁。(坐牢50多年後﹐當他65歲時﹐有可能假釋。) 連13歲男孩都逃不過美國苛法的毒手﹐美國人真變態。
Innocence Project 現協助男孩上訴重審。據稱﹐法醫部證人(法醫官)根本缺乏醫學常識﹐在庭上信口開河﹐導致孩子罪名成立(案件中並沒有其他證據)。現時﹐該法醫官被懷疑在其他數宗案件中因信口雌黃而導致無辜人士含冤--被判死刑或終生監禁。
在批評其他國家的人權問題之前﹐美國應該首先好好自我檢討。
詳情請看:
http://www.freetyler.org/
- 冤獄在美國越來越多 -- Innocence Project利用DNA技術幫助無辜人士翻案
- 美國八青年圍毆一青年--八青年可能被判終生監禁﹔難道美國人根本是非常憎恨耶穌的教導﹖
http://www.cnn.com/2008/CRIME/04/09/bite.mark.slayings.ap/index.html
News:
JACKSON, Mississippi (AP) -- A nonprofit group of attorneys that helps inmates believed to be wrongfully convicted has filed a formal complaint against a pathologist whose work has come under scrutiny.
Innocence Project attorneys said Tuesday they've asked a Mississippi board to revoke the medical license of Dr. Steven Hayne, who has worked as the state pathologist for several years.
Hayne came under scrutiny after DNA and other evidence cleared two men convicted in separate murder cases. The two men were cleared of the charges earlier this year after a third man allegedly confessed to both murders.
"Steven Hayne's long history of misconduct, incompetence and fraud has truly sent innocent people to death row or to prison for life. This is precisely why regulations are in place to revoke medical licenses," said Innocence Project co-founder Peter Neufeld.
Hayne didn't return a call to his cell phone seeking comment. A woman who answered Hayne's telephone at his office said the doctor was out of town and unreachable.
Hayne has said he conducts about 1,500 autopsies a year, which is four times the recommended standard. He's not certified in forensic pathology by the American Board of Pathology, Neufeld said. The board said on Tuesday that Hayne has general certification.
Don't Miss
Two cases that have called Hayne's work into question involve the rape and killing of two 3-year-old girls.
Levon Brooks was convicted and sentenced to life for the 1990 slaying of 3-year-old Courtney Smith. In an almost identical case, Kennedy Brewer was convicted and sentenced to death for the 1992 killing of his then-girlfriend's child, 3-year-old Christine Jackson.
In both cases Hayne had testified that human bite marks were discovered on the girls' bodies, according to the Innocence Project. Odontologist Dr. Michael West had testified at the trials that wounds on the girls were caused by the suspects.
A panel of forensic experts that later examined the Brewer case said the wounds on Christine were not human bites at all, but were probably caused by crawfish and insects nibbling on the corpse, decomposition, and rough handling when the body was pulled from the pond where it was found.
In its complaint, the Innocence Project points to other cases, including that of Tyler Edmonds, who was 13 when he was arrested for the 2003 slaying of his brother-in-law, Joey Fulgham.
Hayne had testified that Edmonds and his half-sister, Kristi Fulgham, both pulled the trigger when the victim was killed. Edmonds was convicted of murder and sentenced to life in prison. Kristi Fulgham was convicted of capital murder and sentenced to death.
Last year, the Mississippi Supreme Court ordered a new trial for Edmonds, saying a trial judge should not have allowed Hayne to testify about a two-shooter theory.
Hayne testified that the positioning of the weapon led him to believe that two people had pulled the trigger. But the court said there was no evidence to support the theory.
Innocence Project 現協助男孩上訴重審。據稱﹐法醫部證人(法醫官)根本缺乏醫學常識﹐在庭上信口開河﹐導致孩子罪名成立(案件中並沒有其他證據)。現時﹐該法醫官被懷疑在其他數宗案件中因信口雌黃而導致無辜人士含冤--被判死刑或終生監禁。
在批評其他國家的人權問題之前﹐美國應該首先好好自我檢討。
詳情請看:
http://www.freetyler.org/
- 冤獄在美國越來越多 -- Innocence Project利用DNA技術幫助無辜人士翻案
- 美國八青年圍毆一青年--八青年可能被判終生監禁﹔難道美國人根本是非常憎恨耶穌的教導﹖
http://www.cnn.com/2008/CRIME/04/09/bite.mark.slayings.ap/index.html
News:
JACKSON, Mississippi (AP) -- A nonprofit group of attorneys that helps inmates believed to be wrongfully convicted has filed a formal complaint against a pathologist whose work has come under scrutiny.
Innocence Project attorneys said Tuesday they've asked a Mississippi board to revoke the medical license of Dr. Steven Hayne, who has worked as the state pathologist for several years.
Hayne came under scrutiny after DNA and other evidence cleared two men convicted in separate murder cases. The two men were cleared of the charges earlier this year after a third man allegedly confessed to both murders.
"Steven Hayne's long history of misconduct, incompetence and fraud has truly sent innocent people to death row or to prison for life. This is precisely why regulations are in place to revoke medical licenses," said Innocence Project co-founder Peter Neufeld.
Hayne didn't return a call to his cell phone seeking comment. A woman who answered Hayne's telephone at his office said the doctor was out of town and unreachable.
Hayne has said he conducts about 1,500 autopsies a year, which is four times the recommended standard. He's not certified in forensic pathology by the American Board of Pathology, Neufeld said. The board said on Tuesday that Hayne has general certification.
Don't Miss
Two cases that have called Hayne's work into question involve the rape and killing of two 3-year-old girls.
Levon Brooks was convicted and sentenced to life for the 1990 slaying of 3-year-old Courtney Smith. In an almost identical case, Kennedy Brewer was convicted and sentenced to death for the 1992 killing of his then-girlfriend's child, 3-year-old Christine Jackson.
In both cases Hayne had testified that human bite marks were discovered on the girls' bodies, according to the Innocence Project. Odontologist Dr. Michael West had testified at the trials that wounds on the girls were caused by the suspects.
A panel of forensic experts that later examined the Brewer case said the wounds on Christine were not human bites at all, but were probably caused by crawfish and insects nibbling on the corpse, decomposition, and rough handling when the body was pulled from the pond where it was found.
In its complaint, the Innocence Project points to other cases, including that of Tyler Edmonds, who was 13 when he was arrested for the 2003 slaying of his brother-in-law, Joey Fulgham.
Hayne had testified that Edmonds and his half-sister, Kristi Fulgham, both pulled the trigger when the victim was killed. Edmonds was convicted of murder and sentenced to life in prison. Kristi Fulgham was convicted of capital murder and sentenced to death.
Last year, the Mississippi Supreme Court ordered a new trial for Edmonds, saying a trial judge should not have allowed Hayne to testify about a two-shooter theory.
Hayne testified that the positioning of the weapon led him to believe that two people had pulled the trigger. But the court said there was no evidence to support the theory.
3.31.2008
許霆ATM提款數案改判入獄五年--可證明中國法院仍然比美國有理性和人性
許霆ATM提款數案改判入獄五年。本人不清楚中國法律﹐不知道五年是否適當。但原判的無期徒刑必定是太重。從此看到中國法律仍相信理性﹐人情﹐人性﹐和仍會給人改過機會--不像美國有時沒有人性可言和不會給人機會的法律。曾經有人在美國因為在商店偷錄影帶(價值大約US$150)而被判50年至終身監禁。亦有人在美國因偷或搶幾百元的貨物而被判二十五年至終身監禁。在這些案件中﹐所有上訴已一概被駁回。有美國人居然還支持這麼沒有人性的判決。這些在權的美國人那麼沒有人性﹐難怪美國是全球最多囚犯的國家。
剛剛看到一編"美國首位華裔市長黃錦波"的意見。也許黃錦波住在美國太久了﹐變成只顧法﹐不顧情﹐不顧理的法律奴隸。我們不應該批評中國法院這次有理性和人性的判刑。在此希望中國不會變成美國那麼不人道﹐像美國那般只會執行苛法。關於黃錦波的意見﹐至少有以下兩個問題﹕
1. 黃錦波的"應該判20年"非常任意(arbitrary)。為何是二十年﹖為何不是三十年﹖為何不是十年﹖如果像黃錦波所言﹐"另外的15年可以用清還173826元去代替徒刑期。即是如全部款項交還，(親友或任何人都可代還) 15年徒刑期則自動除消，如交還一萬元則除消一年，如還回五萬元{剩下或收藏著五萬元的可能性很高} 則減少徒刑五年，如此累推"﹐為何黃錦波不說"到還清為止"--即是可能是無期徒刑﹖是黃錦波忽然顯示了基本的原諒和人性﹐還是他根本沒有想清楚自己的意見﹐只是在胡說八道﹖
2. 黃錦波所謂的"應該判20年"間接表示了他認為窮人犯罪要重判﹐富翁犯罪可輕判。窮人偷了錢(之後輸光沒有錢還)﹐坐完五年後要再坐牢十五年或直至有人幫助其還清錢為止。相反﹐一個犯了同樣罪行的富翁坐完五年後馬上可以出獄。這是人性良心道德可以接受的嗎﹖
Links:
- 美國八青年圍毆一青年--八青年可能被判終生監禁﹔難道美國人根本是非常憎恨耶穌的教導﹖
- 美國發表國際人權報告--再顯美國的虛偽--"識話人唔識話自己"
- 冤獄在美國越來越多 -- Innocence Project利用DNA技術幫助無辜人士翻案
- 在美國﹐每一百個成人就有一個在監獄中--還說美國是自由國家﹖
Source: Singtao.com
許霆案重審改判五年
(星島日報報道)備受關注的許霆因惡意取款十七點五萬元（人民幣，下同）獲判終身監禁案，昨日在廣州市中級人民法院再次開庭，法官當庭宣判：許霆以盜竊罪被判刑五年，追繳所有贓款，並處兩萬元罰金。許霆當庭表示不上訴。其辯護律師稱，重審判決顯示了「媒體的力量，輿論監督的力量。」
二○○六年四月二十一日晚，許霆在廣州某銀行的ATM取款機取出一千元後，帳戶卻只被扣一元，他利用ATM出錯取款一百七十一筆共十七點五萬元。其後，ATM生產商全額賠償了銀行損失，許霆潛逃一年後被抓。
去年十一月，廣州市中級法院一審以盜竊罪判處許霆終身監禁，引起法律界爭議，九成以上的網民認為銀行有錯在先，法院不該重
判許霆。今年一月十六日，廣東省高級法院發回廣州中級法院重審。
最高人民法院副院長姜興長也曾表示，許霆屬於惡性取款，定罪判刑是應該的。許霆的辯護律師楊振平前日預測，許霆將被判有罪，刑期為五至七年。
昨日重審中，公訴方仍堅持判許霆「無期」，許霆方則堅信「無罪」。廣州中院此前已向最高人民法院遞交過報告，要求給出指導判決意見。
法庭認為，許霆盜竊金融機構數額特別巨大，依法本應適用終身監禁或者死刑，但鑒於許霆惡意取款是在發現銀行自動櫃員機出現異常後的行為，其行為與有預謀，或者採取破壞手段盜竊金融機構的犯罪有所不同。從犯罪具有一定的偶然性看，許霆犯罪主觀惡意不是很大，因此判刑五年。
對此判決，許霆當庭表示不上訴。其父許彩亮表示「十分不滿意」，他仍堅持許霆應無罪釋放。楊振平律師則表示，重審判決顯示媒體的輿論監督起到很大作用，「這是媒體的力量，輿論監督的力量。」
雲南此前也曾發生過一宗與許霆案類似的何鵬案，何鵬最終被判無期，如今已服刑七年。何鵬的父母特地從雲南趕到廣州，期待何鵬案也能出現變數。
剛剛看到一編"美國首位華裔市長黃錦波"的意見。也許黃錦波住在美國太久了﹐變成只顧法﹐不顧情﹐不顧理的法律奴隸。我們不應該批評中國法院這次有理性和人性的判刑。在此希望中國不會變成美國那麼不人道﹐像美國那般只會執行苛法。關於黃錦波的意見﹐至少有以下兩個問題﹕
1. 黃錦波的"應該判20年"非常任意(arbitrary)。為何是二十年﹖為何不是三十年﹖為何不是十年﹖如果像黃錦波所言﹐"另外的15年可以用清還173826元去代替徒刑期。即是如全部款項交還，(親友或任何人都可代還) 15年徒刑期則自動除消，如交還一萬元則除消一年，如還回五萬元{剩下或收藏著五萬元的可能性很高} 則減少徒刑五年，如此累推"﹐為何黃錦波不說"到還清為止"--即是可能是無期徒刑﹖是黃錦波忽然顯示了基本的原諒和人性﹐還是他根本沒有想清楚自己的意見﹐只是在胡說八道﹖
2. 黃錦波所謂的"應該判20年"間接表示了他認為窮人犯罪要重判﹐富翁犯罪可輕判。窮人偷了錢(之後輸光沒有錢還)﹐坐完五年後要再坐牢十五年或直至有人幫助其還清錢為止。相反﹐一個犯了同樣罪行的富翁坐完五年後馬上可以出獄。這是人性良心道德可以接受的嗎﹖
Links:
- 美國八青年圍毆一青年--八青年可能被判終生監禁﹔難道美國人根本是非常憎恨耶穌的教導﹖
- 美國發表國際人權報告--再顯美國的虛偽--"識話人唔識話自己"
- 冤獄在美國越來越多 -- Innocence Project利用DNA技術幫助無辜人士翻案
- 在美國﹐每一百個成人就有一個在監獄中--還說美國是自由國家﹖
Source: Singtao.com
許霆案重審改判五年
(星島日報報道)備受關注的許霆因惡意取款十七點五萬元（人民幣，下同）獲判終身監禁案，昨日在廣州市中級人民法院再次開庭，法官當庭宣判：許霆以盜竊罪被判刑五年，追繳所有贓款，並處兩萬元罰金。許霆當庭表示不上訴。其辯護律師稱，重審判決顯示了「媒體的力量，輿論監督的力量。」
二○○六年四月二十一日晚，許霆在廣州某銀行的ATM取款機取出一千元後，帳戶卻只被扣一元，他利用ATM出錯取款一百七十一筆共十七點五萬元。其後，ATM生產商全額賠償了銀行損失，許霆潛逃一年後被抓。
去年十一月，廣州市中級法院一審以盜竊罪判處許霆終身監禁，引起法律界爭議，九成以上的網民認為銀行有錯在先，法院不該重
判許霆。今年一月十六日，廣東省高級法院發回廣州中級法院重審。
最高人民法院副院長姜興長也曾表示，許霆屬於惡性取款，定罪判刑是應該的。許霆的辯護律師楊振平前日預測，許霆將被判有罪，刑期為五至七年。
昨日重審中，公訴方仍堅持判許霆「無期」，許霆方則堅信「無罪」。廣州中院此前已向最高人民法院遞交過報告，要求給出指導判決意見。
法庭認為，許霆盜竊金融機構數額特別巨大，依法本應適用終身監禁或者死刑，但鑒於許霆惡意取款是在發現銀行自動櫃員機出現異常後的行為，其行為與有預謀，或者採取破壞手段盜竊金融機構的犯罪有所不同。從犯罪具有一定的偶然性看，許霆犯罪主觀惡意不是很大，因此判刑五年。
對此判決，許霆當庭表示不上訴。其父許彩亮表示「十分不滿意」，他仍堅持許霆應無罪釋放。楊振平律師則表示，重審判決顯示媒體的輿論監督起到很大作用，「這是媒體的力量，輿論監督的力量。」
雲南此前也曾發生過一宗與許霆案類似的何鵬案，何鵬最終被判無期，如今已服刑七年。何鵬的父母特地從雲南趕到廣州，期待何鵬案也能出現變數。
3.27.2008
荒謬的交通法律--安全帶﹐巴士﹐電單車﹐學校巴士
不久前﹐看到某香港議員談論規定巴士乘客用安全帶的法例。記得他大約說﹐"巴士設置企位﹐但強迫坐客用安全帶﹐這是什麼交通安全﹐真荒謬。"
我完全讚同他的說法。但我也明白有些交通法律根本沒有邏輯可言﹐只是隨立法者當時的喜惡--一個任意的決定(arbitrary decision)。有沒有想過﹕
- 為什麼坐汽車時要用安全帶﹐但又容許電單車的存在﹖電單車沒有安全帶﹐而且沒有"鐵皮"的保護。難道在汽車內比在電單車上更危險嗎﹖
- 為什麼體重輕或年幼的小孩子坐私家車時要用兒童安全座椅(Child safety seat)﹐但又容許小學學校巴士沒有兒童安全座椅(很多連安全帶也沒有)﹖難道校巴不會發生意外嗎﹖在私家車裡有父母或成年人貼身照顧(一對一﹐一對二﹐或一對少數兒童)﹐難道校巴司機對學生的照顧會比父母對子女的照顧更用心嗎﹖
在此聲明﹐我絕對支持坐車時用安全帶(不論前坐或後坐)﹔只是覺得法律對電單車和校巴的豁免真是荒謬到極。
我完全讚同他的說法。但我也明白有些交通法律根本沒有邏輯可言﹐只是隨立法者當時的喜惡--一個任意的決定(arbitrary decision)。有沒有想過﹕
- 為什麼坐汽車時要用安全帶﹐但又容許電單車的存在﹖電單車沒有安全帶﹐而且沒有"鐵皮"的保護。難道在汽車內比在電單車上更危險嗎﹖
- 為什麼體重輕或年幼的小孩子坐私家車時要用兒童安全座椅(Child safety seat)﹐但又容許小學學校巴士沒有兒童安全座椅(很多連安全帶也沒有)﹖難道校巴不會發生意外嗎﹖在私家車裡有父母或成年人貼身照顧(一對一﹐一對二﹐或一對少數兒童)﹐難道校巴司機對學生的照顧會比父母對子女的照顧更用心嗎﹖
在此聲明﹐我絕對支持坐車時用安全帶(不論前坐或後坐)﹔只是覺得法律對電單車和校巴的豁免真是荒謬到極。
美國機場警方令一名媽媽身亡--竟然用"按本子辦事"做免責理由﹐真可恥
美國鳳凰城機場警方在2007年9月拘留一名媽媽時導致她意外死亡。今早﹐那媽媽的家人決定向機場警方作民事索償。當日﹐警方將那媽媽獨自關在拘留室﹐用手銬將她雙手反鎖在背後﹐再用鐵鏈將手銬鎖在長鐵椅上。結果﹐在沒有警員看管的情況下﹐那媽媽意外地被背後的鐵鏈勒死。
警方堅持那媽媽的死是意外﹐又堅持警方沒有做錯﹐只是按照警方手則辦事。筆者當然相信這是不幸的意外﹐相信警方沒有故然殺死那媽媽。但用"按照警方手則辦事"來做免責理由真是不負責任的行為。一名媽媽在拘留室死了﹐拘留所負責人不單不用認錯﹐還堅持沒有做錯﹐真是美國警方的一貫本色。
人性和道德不容許有人性的人用"只是按本子辦事"為免責理由。難道我們可以接受日本皇軍士兵強姦殺害中國人後用"我們只是按本子辦事"為免責理由嗎﹖做錯事就應該認﹔做錯事還要用"只是按本子辦事"來辯護﹐美國鳳凰城機場警方簡直是一堆沒有勇氣又沒有人性的人類渣滓。
Links:
CNN news﹕Carol Anne Gotbaum
Thoughts on woman who died at Phoenix airport
美國再有虐待被拘留人士個案--被拘留四日﹐無水﹐無食物﹐無廁所
Source: Associated Press
PHOENIX (AP) — The family of a New York woman who died in police custody at the Phoenix airport in September filed an $8 million claim against the city Wednesday, the first step in filing a wrongful death suit.
The claim was immediately rejected by the city in a letter to lawyers for the family of Carol Anne Gotbaum, who died Sept. 28 in a police holding cell at Sky Harbor International Airport after being arrested for disorderly conduct. She was on her way by herself from New York to enter an alcohol treatment center in Tucson.
The claim, the legally required precursor to a lawsuit, seeks the money for Gotbaum's husband, Noah, her three children and her estate. Gotbaum's husband is the son of New York City Public Advocate Betsy Gotbaum.
"On that day, members of the Phoenix Police Department used excessive and unreasonable force on Carol, as if she was a dangerous criminal, rather than as the sick, intoxicated, and vulnerable person she was," the claim states.
An autopsy report released by the Maricopa County medical examiner's office concluded that Gotbaum accidentally hanged herself on her shackles while in the holding cell. The report said intoxication from alcohol and prescription drugs were contributing factors.
Gotbaum family attorney Michael Manning wrote in the claim that police erred by putting her alone and shackled in a holding room.
"In the process, they ignored the warning signs that their own policies, procedures and training materials told them could result in Carol's death," Manning wrote.
Police have contended that Gotbaum's death was accidental and that officers who took her into custody did nothing wrong.
Wednesday's letter from the city's legal department to Manning said the claim that police should have responded differently was wrong.
"The thrust of the Gotbaum family claim is that the City of Phoenix police officers should have been more supportive than Carol's own husband, more knowledgeable than her own family, and should somehow have known that she suffered from a private condition that she deliberately hid from the public," said the letter signed by attorney Stephen Craig.
"But the Gotbaum family has publicly admitted, not only that Carol hid her medical and mental condition, but that the officers responded to Carol exactly the way her husband knew they would respond because they did not have critical information known only to the Gotbaum family," the letter continued.
The city letter included transcripts of phone calls Noah Gotbaum made to the airport the afternoon of his wife's death, telling officials he was concerned about her whereabouts because she was depressed and suicidal.
The Phoenix Police Department will probably refuse settling in any way, said Sgt. Andy Hill, a spokesman for the agency.
"The promise that was made to the police officers involved by the city legal unit when this all began was if those actions by those officers were justified and were professional, that they would go to the furthest extent possible to protect those officers," Hill said. "That is what's happening today."
My comments on gadling.com:
a) "This is true but it is just as true that if she wasn't allowed to travel alone in the first place she wouldn't be dead."
Well, if we look at it that way, I guess it is also true that she wouldn't be dead if she wasn't born in the first place, or if her parents weren't born in the first place, or so on...
But seriously, while her traveling alone is related to her death, the chain put around her neck is the direct cause for her death. And who chained the handcuffed woman to a bench in a locked room?
When a parent leaves a twelve-year-old child alone in the house and the child dies in a kitchen accident, the parent will be arrested. Why should the police be left off the hook for causing a death? Just because they are following procedures, no matter how inhumane the procedures are?
In the hypothetical situation above, at least, the child is not powerlessly chained to a metal bench.
b) We read the same story - she died in an accident choking herself. I certainly didn't mean the police "put" the chain around her neck. Sorry for the confusion.
What I meant to say was that if the chain were not there, the chain-choking death would not have occurred. Without the chain, maybe she could have banged her head against the wall and died that way (and possibly, this was the reason the police decided to chain her handcuffed hands to a bench -- unfortunately, this "protection from herself" did not work out as planned). But then, we would be speculating. So we can only assign blame based on what actually happened: Without the chain, no chain-choking death. Any other factor (her husband's not being there, her temper and tirade, etc.) is secondary and indirect. Therefore, the main blame (if not all the blame) should be assigned to the police.
I hesitate to blame the husband or the family for the accident, for these reasons:
1. The woman was an adult; I doubt the husband is legally empowered to keep her in the house.
2. The husband could certainly have flown with her. And he could have gone with her everywhere. But when would she get agitated and lose her temper? Should he go with her to the locker room and the bathroom, too? Where to draw the line? What if she insisted to go alone?
3. Trust is important for recovering mental patients. If she said she was fine, what was the husband to do? I guess the husband could have tailed her.
Even if the husband had gone with her, no one can tell whether he could have calmed her. What if he couldn't control her? What if he got angry as well and started arguing with her? What if they were both arrested? What if they were both handcuffed and chained to benches? What if the airport police used the stun gun on both them and they both died with a bad reaction to the stun gun? The point is that in speculation, anything could have happened - so it's futile to speculate. We can be certain only about what happened. So what if she had a history of difficulties, so what if she flew alone, so what if she lost her temper, so what if she was detained; none of those really matters. The only thing that matters is that if there were no chain on the woman or if the police kept an eye on her, she would not have choked on the chain and died.
I bet this is not the first time that someone has been detained by airport security for "making a scene" - and I would bet that not all of them have a history of mental difficulties. People get agitated and angry (though some more so than others), especially with so many unreasonable rules at the airport these days. If a hundred "normal" people were handcuffed and chained to a bench, I won't be surprised if one of them tried to "get out" or into a more comfortable position. Carol Anne Gotbaum happened to be one who tried to "get out" and she died in a freak accident. So, maybe the "mental difficulties" factor is to shift the public's attention from "the city's problem" to "her problem" and "the husband's problem."
警方堅持那媽媽的死是意外﹐又堅持警方沒有做錯﹐只是按照警方手則辦事。筆者當然相信這是不幸的意外﹐相信警方沒有故然殺死那媽媽。但用"按照警方手則辦事"來做免責理由真是不負責任的行為。一名媽媽在拘留室死了﹐拘留所負責人不單不用認錯﹐還堅持沒有做錯﹐真是美國警方的一貫本色。
人性和道德不容許有人性的人用"只是按本子辦事"為免責理由。難道我們可以接受日本皇軍士兵強姦殺害中國人後用"我們只是按本子辦事"為免責理由嗎﹖做錯事就應該認﹔做錯事還要用"只是按本子辦事"來辯護﹐美國鳳凰城機場警方簡直是一堆沒有勇氣又沒有人性的人類渣滓。
Links:
CNN news﹕Carol Anne Gotbaum
Thoughts on woman who died at Phoenix airport
美國再有虐待被拘留人士個案--被拘留四日﹐無水﹐無食物﹐無廁所
Source: Associated Press
PHOENIX (AP) — The family of a New York woman who died in police custody at the Phoenix airport in September filed an $8 million claim against the city Wednesday, the first step in filing a wrongful death suit.
The claim was immediately rejected by the city in a letter to lawyers for the family of Carol Anne Gotbaum, who died Sept. 28 in a police holding cell at Sky Harbor International Airport after being arrested for disorderly conduct. She was on her way by herself from New York to enter an alcohol treatment center in Tucson.
The claim, the legally required precursor to a lawsuit, seeks the money for Gotbaum's husband, Noah, her three children and her estate. Gotbaum's husband is the son of New York City Public Advocate Betsy Gotbaum.
"On that day, members of the Phoenix Police Department used excessive and unreasonable force on Carol, as if she was a dangerous criminal, rather than as the sick, intoxicated, and vulnerable person she was," the claim states.
An autopsy report released by the Maricopa County medical examiner's office concluded that Gotbaum accidentally hanged herself on her shackles while in the holding cell. The report said intoxication from alcohol and prescription drugs were contributing factors.
Gotbaum family attorney Michael Manning wrote in the claim that police erred by putting her alone and shackled in a holding room.
"In the process, they ignored the warning signs that their own policies, procedures and training materials told them could result in Carol's death," Manning wrote.
Police have contended that Gotbaum's death was accidental and that officers who took her into custody did nothing wrong.
Wednesday's letter from the city's legal department to Manning said the claim that police should have responded differently was wrong.
"The thrust of the Gotbaum family claim is that the City of Phoenix police officers should have been more supportive than Carol's own husband, more knowledgeable than her own family, and should somehow have known that she suffered from a private condition that she deliberately hid from the public," said the letter signed by attorney Stephen Craig.
"But the Gotbaum family has publicly admitted, not only that Carol hid her medical and mental condition, but that the officers responded to Carol exactly the way her husband knew they would respond because they did not have critical information known only to the Gotbaum family," the letter continued.
The city letter included transcripts of phone calls Noah Gotbaum made to the airport the afternoon of his wife's death, telling officials he was concerned about her whereabouts because she was depressed and suicidal.
The Phoenix Police Department will probably refuse settling in any way, said Sgt. Andy Hill, a spokesman for the agency.
"The promise that was made to the police officers involved by the city legal unit when this all began was if those actions by those officers were justified and were professional, that they would go to the furthest extent possible to protect those officers," Hill said. "That is what's happening today."
My comments on gadling.com:
a) "This is true but it is just as true that if she wasn't allowed to travel alone in the first place she wouldn't be dead."
Well, if we look at it that way, I guess it is also true that she wouldn't be dead if she wasn't born in the first place, or if her parents weren't born in the first place, or so on...
But seriously, while her traveling alone is related to her death, the chain put around her neck is the direct cause for her death. And who chained the handcuffed woman to a bench in a locked room?
When a parent leaves a twelve-year-old child alone in the house and the child dies in a kitchen accident, the parent will be arrested. Why should the police be left off the hook for causing a death? Just because they are following procedures, no matter how inhumane the procedures are?
In the hypothetical situation above, at least, the child is not powerlessly chained to a metal bench.
b) We read the same story - she died in an accident choking herself. I certainly didn't mean the police "put" the chain around her neck. Sorry for the confusion.
What I meant to say was that if the chain were not there, the chain-choking death would not have occurred. Without the chain, maybe she could have banged her head against the wall and died that way (and possibly, this was the reason the police decided to chain her handcuffed hands to a bench -- unfortunately, this "protection from herself" did not work out as planned). But then, we would be speculating. So we can only assign blame based on what actually happened: Without the chain, no chain-choking death. Any other factor (her husband's not being there, her temper and tirade, etc.) is secondary and indirect. Therefore, the main blame (if not all the blame) should be assigned to the police.
I hesitate to blame the husband or the family for the accident, for these reasons:
1. The woman was an adult; I doubt the husband is legally empowered to keep her in the house.
2. The husband could certainly have flown with her. And he could have gone with her everywhere. But when would she get agitated and lose her temper? Should he go with her to the locker room and the bathroom, too? Where to draw the line? What if she insisted to go alone?
3. Trust is important for recovering mental patients. If she said she was fine, what was the husband to do? I guess the husband could have tailed her.
Even if the husband had gone with her, no one can tell whether he could have calmed her. What if he couldn't control her? What if he got angry as well and started arguing with her? What if they were both arrested? What if they were both handcuffed and chained to benches? What if the airport police used the stun gun on both them and they both died with a bad reaction to the stun gun? The point is that in speculation, anything could have happened - so it's futile to speculate. We can be certain only about what happened. So what if she had a history of difficulties, so what if she flew alone, so what if she lost her temper, so what if she was detained; none of those really matters. The only thing that matters is that if there were no chain on the woman or if the police kept an eye on her, she would not have choked on the chain and died.
I bet this is not the first time that someone has been detained by airport security for "making a scene" - and I would bet that not all of them have a history of mental difficulties. People get agitated and angry (though some more so than others), especially with so many unreasonable rules at the airport these days. If a hundred "normal" people were handcuffed and chained to a bench, I won't be surprised if one of them tried to "get out" or into a more comfortable position. Carol Anne Gotbaum happened to be one who tried to "get out" and she died in a freak accident. So, maybe the "mental difficulties" factor is to shift the public's attention from "the city's problem" to "her problem" and "the husband's problem."
3.03.2008
碩士與父母反目還百萬留學費--會變成政府或機構取回獎學金和助學金的案例嗎﹖
不提父母是否決絕﹐不提兒子是否不孝。星島報導沒有細節﹐所以不清楚這案件是關於口頭承諾(即兒子在反目後答應歸還學費)﹐還是父母給子女的留學費要還﹖假設是後者﹐恐怕這案會成為將來政府或其他機構用來取回獎學金和助學金(假設沒有寫明是餽贈)的案例。
陳父因為不滿意兒子行為(兒子減給家用)﹐數年後獲法院裁定可向兒子索償。同一道理﹐政府或某機構將獎學金和助學金給予學生留學;如政府或機構不滿學生學成後的某些行為(例如反對和抗議政府或機構政策)﹐可利用這案例向學生取回獎學金(假設沒有寫明是餽贈)嗎﹖
另外﹐會否因為此案而有大量父母向子女索取多年的養育費﹖今後父母會開始將撫養子女的一切開支做一本數簿嗎﹖而子女會否今後不停問父母﹕"這零用錢是餽贈還是借貸"﹖
碩士與父母反目還百萬留學費 (香港)
"因給父母家用驟減，機械工程碩士與父母反目，被追百萬留學費，區院法官裁定父母得值，兒子須要清還。住所一半業權屬代父母託管，業權亦敗訴。
現年三十七歲姓陳的機械工程碩士，本與父母同住，二千年結婚入住父母新購的青衣住所，承諾每月給父母七千五百元作租金，並按年遞增至最高一萬四千元，夫婦每晚回父母家吃飯，至○三年陳誕女後，嬰兒一度交母照顧。
○五年六月起，陳新聘印傭照顧女兒，每月給父母的款項亦下調至七千五百元，令父母大為不悅。召開家庭會議又不歡而散，反目後，陳父要求兒子歸還赴英留學費用，陳當時答應，終對簿公堂。"
Source: Singtao.com
http://www.singtao.com/breakingnews/20080303a210729.asp
陳父因為不滿意兒子行為(兒子減給家用)﹐數年後獲法院裁定可向兒子索償。同一道理﹐政府或某機構將獎學金和助學金給予學生留學;如政府或機構不滿學生學成後的某些行為(例如反對和抗議政府或機構政策)﹐可利用這案例向學生取回獎學金(假設沒有寫明是餽贈)嗎﹖
另外﹐會否因為此案而有大量父母向子女索取多年的養育費﹖今後父母會開始將撫養子女的一切開支做一本數簿嗎﹖而子女會否今後不停問父母﹕"這零用錢是餽贈還是借貸"﹖
碩士與父母反目還百萬留學費 (香港)
"因給父母家用驟減，機械工程碩士與父母反目，被追百萬留學費，區院法官裁定父母得值，兒子須要清還。住所一半業權屬代父母託管，業權亦敗訴。
現年三十七歲姓陳的機械工程碩士，本與父母同住，二千年結婚入住父母新購的青衣住所，承諾每月給父母七千五百元作租金，並按年遞增至最高一萬四千元，夫婦每晚回父母家吃飯，至○三年陳誕女後，嬰兒一度交母照顧。
○五年六月起，陳新聘印傭照顧女兒，每月給父母的款項亦下調至七千五百元，令父母大為不悅。召開家庭會議又不歡而散，反目後，陳父要求兒子歸還赴英留學費用，陳當時答應，終對簿公堂。"
Source: Singtao.com
http://www.singtao.com/breakingnews/20080303a210729.asp
2.26.2008
The legal system is not about right or wrong, just legal or illegal
The legal system is not about right or wrong; it decides only what is legal and what is illegal. How did that come to be? Maybe the legal system was born solely because of the subjectivity involved in deciding what is morally right and morally wrong. But anything with humans involves subjectivity, but there is a loophole in the legal system - with this new system, the subjectivity is no longer on right versus wrong, but rather, on legal versus illegal.
In discussing Edison Chen's case, it is alright to discuss whether he is wrong or right and it is alright to discuss whether he is legally negligent or not, but it does not make sense to mix the two together. (To relate grounds for legal action to a wrongness is even more illogical, as people sue for almost any reason. Want some examples? Go to: http://www.overlawyered.com.)
The legal system is a game of procedures, lawyers, and expert witnesses. As Mr. Lam said, even if Mr. Chen wins the potential tort case, it will not mean he was right (morally right, I presume). But the reverse should also be mentioned, that is, even if Mr. Chen loses the potential tort case, it will not mean that he was in the wrong, morally.
With layers of courts, a legal action can easily turn into an illegal one on appeals and vice versa. A right action certainly would not turn into a wrong action that easily, on the words of a mere few.
In discussing Edison Chen's case, it is alright to discuss whether he is wrong or right and it is alright to discuss whether he is legally negligent or not, but it does not make sense to mix the two together. (To relate grounds for legal action to a wrongness is even more illogical, as people sue for almost any reason. Want some examples? Go to: http://www.overlawyered.com.)
The legal system is a game of procedures, lawyers, and expert witnesses. As Mr. Lam said, even if Mr. Chen wins the potential tort case, it will not mean he was right (morally right, I presume). But the reverse should also be mentioned, that is, even if Mr. Chen loses the potential tort case, it will not mean that he was in the wrong, morally.
With layers of courts, a legal action can easily turn into an illegal one on appeals and vice versa. A right action certainly would not turn into a wrong action that easily, on the words of a mere few.
2.23.2008
練乙錚對美國保護私隱權不明白﹐ 和美國憲法保障私穩權的某些細節
(註﹕寫了英文版本後才翻譯到中文。筆者中文差﹐翻譯未必完全達意。)
從每日一膠﹐看到練乙錚的文章--關於私隱權和美國最高法院。以下是有關想法﹕
1. 基辛格的例子是一個很差的例子。基辛格是一位公眾人物﹔在美國﹐公眾人物的私隱權保障很低--相比起非公眾人物(即普通人)。這可能是基辛格沒有提出訴訟的原因--用"私隱受侵犯提出起訴"的話﹐他當時輸的機會很大。輸了的話必然會變成反面教材。所以練乙錚用基辛格作為 "不以私隱受侵犯提出起訴，不僅放棄自身的權利...不僅害己害人，還遺害社會" 論點的例子很有問題。(見#5)
2. 美國憲法是一份非常模糊的文件﹐私隱權並沒有被寫在美國憲法裡--只可以說是存在於憲法意思裡。私隱權是由幾個案例確立的(只是大多數法官的決定﹐不是一致決定)。雖然他們的理據可以說是有些牽強﹐但筆者非常讚同牽強理據達到的結果--私隱權。
3. 因為美國憲法裡沒有例明私隱權而最高法院的法官近年變得更保守(Roberts and Alito是非常保守的新任命法官), 有些私隱權(例如﹐墮胎和不合理搜查和沒收)有很大可能在不久的將來被否決或限制。
4. 香港的私隱權法律要細緻地被列明﹔否則﹐太容易被少數的法官否決了。而且﹐法例要建基於多個國家的私隱權﹔如果只是建基於一個國家﹐當那一個國家的法院決定否定那法例﹐香港的法例豈不是失去了可信性﹖
5. 美國憲法保證的私隱權是防止政府(美國聯邦政府和各州府)侵犯人民的私隱權。很多人(即使是美國人)不明白美國憲法保證的私隱權與非政府個體(公司﹐傳媒﹐鄰居﹐等等)沒有關係。
有關為何美國警察沒有保護Paris Hilton的私隱權﹐有以下幾點﹕
A. 侵犯Paris Hilton私隱權的不是政府--美國憲法只是防止政府侵犯私隱權
B. 私隱權是公民權。侵犯公民權是透過民事訴訟。如果沒有刑事罪行﹐警方不會插手。
C. 明星和公眾人物的私隱權在美國差不多不存在。
值得看的有關書籍﹕
- The Next 25 Years: The New Supreme Court and What It Means for Americans, by Martin Garbus
- Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have, by Daniel Farber
From Mr. Lam's blog, I saw 練乙錚's article on the right to privacy and references to the U.S. Supreme Court and the U.S. Constitution. Here are some thoughts.
1. The Kissinger example in the article is a bad one. In the U.S., the right to privacy for public figure (of which Kissinger was definitely one) is little protected compared to a non-public figure -- a private citizen. That may have been the reason Kissinger did not sue; even if he had sued on privacy grounds, he would likely have lost. Also, it would not have been a constitutional issue, as neither the federal nor the state government was the intruding party (see #5).
2. The right to privacy is not stated in the U.S. Constitution, a highly vague document, though this right is considered inherent in several of the amendments. As the right was established via several court cases by a majority of judges (not unanimous), some would consider this right created out of controversial legal reasoning (and I tend to agree, although I like the resulting right to privacy).
3. Since the right is not explicitly stated in the Constitution, with the recent shift toward a more conservation U.S. Supreme Court (Roberts and Alito), certain privacy rights (e.g., abortion right, right against unreasonable search and seizure) may well be reversed or limited in the future.
4. Hong Kong privacy law should state the right to privacy explicitly; otherwise, it would exist only at the mercy of a few judges. Also, model the law after its counterpart in multiple nations; if it is based on country XYZ's law only (e.g., U.S.), this right would be on shaky ground if such right is reversed by the court in XYZ.
5. The right to privacy per the U.S. Constitution is a protection of the people against intrusion by the federal government, and by extension under the 14th Amendment, the protection against intrusion by state governments. To suggest that this right to privacy is protection against non-government entities is a misunderstanding or a misconstruction.
As to the question of why U.S. police did not "protect" Paris Hilton's right to privacy, there are several things to consider:
A. The government was not the intruding party - constitutional protection of the right to privacy is a protection against government intrusion only.
B. The right to privacy is a civil right. Civil right violations are addressed in litigation where the injured party sues. Unless other criminal violations occur, the police would likely not be involved.
C. The right to privacy is virtually non-existent to a celebrity or public person in the U.S.
Recommended books:
- The Next 25 Years: The New Supreme Court and What It Means for Americans, by Martin Garbus
- Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have, by Daniel Farber
從每日一膠﹐看到練乙錚的文章--關於私隱權和美國最高法院。以下是有關想法﹕
1. 基辛格的例子是一個很差的例子。基辛格是一位公眾人物﹔在美國﹐公眾人物的私隱權保障很低--相比起非公眾人物(即普通人)。這可能是基辛格沒有提出訴訟的原因--用"私隱受侵犯提出起訴"的話﹐他當時輸的機會很大。輸了的話必然會變成反面教材。所以練乙錚用基辛格作為 "不以私隱受侵犯提出起訴，不僅放棄自身的權利...不僅害己害人，還遺害社會" 論點的例子很有問題。(見#5)
2. 美國憲法是一份非常模糊的文件﹐私隱權並沒有被寫在美國憲法裡--只可以說是存在於憲法意思裡。私隱權是由幾個案例確立的(只是大多數法官的決定﹐不是一致決定)。雖然他們的理據可以說是有些牽強﹐但筆者非常讚同牽強理據達到的結果--私隱權。
3. 因為美國憲法裡沒有例明私隱權而最高法院的法官近年變得更保守(Roberts and Alito是非常保守的新任命法官), 有些私隱權(例如﹐墮胎和不合理搜查和沒收)有很大可能在不久的將來被否決或限制。
4. 香港的私隱權法律要細緻地被列明﹔否則﹐太容易被少數的法官否決了。而且﹐法例要建基於多個國家的私隱權﹔如果只是建基於一個國家﹐當那一個國家的法院決定否定那法例﹐香港的法例豈不是失去了可信性﹖
5. 美國憲法保證的私隱權是防止政府(美國聯邦政府和各州府)侵犯人民的私隱權。很多人(即使是美國人)不明白美國憲法保證的私隱權與非政府個體(公司﹐傳媒﹐鄰居﹐等等)沒有關係。
有關為何美國警察沒有保護Paris Hilton的私隱權﹐有以下幾點﹕
A. 侵犯Paris Hilton私隱權的不是政府--美國憲法只是防止政府侵犯私隱權
B. 私隱權是公民權。侵犯公民權是透過民事訴訟。如果沒有刑事罪行﹐警方不會插手。
C. 明星和公眾人物的私隱權在美國差不多不存在。
值得看的有關書籍﹕
- The Next 25 Years: The New Supreme Court and What It Means for Americans, by Martin Garbus
- Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have, by Daniel Farber
From Mr. Lam's blog, I saw 練乙錚's article on the right to privacy and references to the U.S. Supreme Court and the U.S. Constitution. Here are some thoughts.
1. The Kissinger example in the article is a bad one. In the U.S., the right to privacy for public figure (of which Kissinger was definitely one) is little protected compared to a non-public figure -- a private citizen. That may have been the reason Kissinger did not sue; even if he had sued on privacy grounds, he would likely have lost. Also, it would not have been a constitutional issue, as neither the federal nor the state government was the intruding party (see #5).
2. The right to privacy is not stated in the U.S. Constitution, a highly vague document, though this right is considered inherent in several of the amendments. As the right was established via several court cases by a majority of judges (not unanimous), some would consider this right created out of controversial legal reasoning (and I tend to agree, although I like the resulting right to privacy).
3. Since the right is not explicitly stated in the Constitution, with the recent shift toward a more conservation U.S. Supreme Court (Roberts and Alito), certain privacy rights (e.g., abortion right, right against unreasonable search and seizure) may well be reversed or limited in the future.
4. Hong Kong privacy law should state the right to privacy explicitly; otherwise, it would exist only at the mercy of a few judges. Also, model the law after its counterpart in multiple nations; if it is based on country XYZ's law only (e.g., U.S.), this right would be on shaky ground if such right is reversed by the court in XYZ.
5. The right to privacy per the U.S. Constitution is a protection of the people against intrusion by the federal government, and by extension under the 14th Amendment, the protection against intrusion by state governments. To suggest that this right to privacy is protection against non-government entities is a misunderstanding or a misconstruction.
As to the question of why U.S. police did not "protect" Paris Hilton's right to privacy, there are several things to consider:
A. The government was not the intruding party - constitutional protection of the right to privacy is a protection against government intrusion only.
B. The right to privacy is a civil right. Civil right violations are addressed in litigation where the injured party sues. Unless other criminal violations occur, the police would likely not be involved.
C. The right to privacy is virtually non-existent to a celebrity or public person in the U.S.
Recommended books:
- The Next 25 Years: The New Supreme Court and What It Means for Americans, by Martin Garbus
- Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have, by Daniel Farber
2.18.2008
法律的條文從來就只是配角﹐主角一向都是法官的釋法
法律的條文從來就不是法律的主角--條文一向只是配角﹔法官的釋法才是主角。因為法律是人寫的﹐一定有漏洞﹔因為法官是人﹐一定有自己的思想觀念。即使高院(或美國上訴庭)有權推翻地區法官而最高法院又有權推翻高院決定﹐一個最高法院又怎會有時間處理那麼多有爭議的案件呢﹖即使有時間處理﹐一個被地區法官因私人理念而受到無理定罪的人又要坐多久冤獄才等到翻案﹖最後﹐假如最高法院的決定才是歪理﹐人民又可以做到什麼﹖
其中一個好例子就是2000年美國總統大選﹐由美國最高法院以5比4票數將總統之位送給布殊。最高法院用的法律解釋非常convoluted而且非常有選擇性--支持布殊的一方在釋法說明﹕"此案決定只對此案有效﹐不能做將來案件的案例"。雖然有大量法律學者指責法院做了錯誤的決定﹐但法院的決定是最終決定。
法律是根據幾百年來的法例和案例(尤其是common law)--最荒謬和最不合理的決定也可以從歷來的法例和案例中找到"說得通"的理據。一個法官可以用一條法例的細節來支持一個決定﹐亦即時可以用另一個細節來支持一個完全相反的決定。最重要的不是法例說什麼﹐而是有權釋法的人在想什麼﹐決定怎樣運用那法律。In practice, the letter of the law is not what is important, the interpretation of the law is.
都是一位前美國最高法院法官William J. Brennan, Jr. 講得好--又簡單﹐又誠懇﹕有一次他被問到法律是什麼﹐他舉起五隻手指﹐之後解釋--我們五個人(即是指五個最高法院法官)說法律是什麼﹐法律就是什麼。因為美國最高法院有九名法官﹐得到五票的一方必定是最終贏家﹐一個在短期內無人能否決(overrule)的贏家。
法律的字眼故然重要﹐但最終﹐主角永遠是法官的釋法。
其中一個好例子就是2000年美國總統大選﹐由美國最高法院以5比4票數將總統之位送給布殊。最高法院用的法律解釋非常convoluted而且非常有選擇性--支持布殊的一方在釋法說明﹕"此案決定只對此案有效﹐不能做將來案件的案例"。雖然有大量法律學者指責法院做了錯誤的決定﹐但法院的決定是最終決定。
法律是根據幾百年來的法例和案例(尤其是common law)--最荒謬和最不合理的決定也可以從歷來的法例和案例中找到"說得通"的理據。一個法官可以用一條法例的細節來支持一個決定﹐亦即時可以用另一個細節來支持一個完全相反的決定。最重要的不是法例說什麼﹐而是有權釋法的人在想什麼﹐決定怎樣運用那法律。In practice, the letter of the law is not what is important, the interpretation of the law is.
都是一位前美國最高法院法官William J. Brennan, Jr. 講得好--又簡單﹐又誠懇﹕有一次他被問到法律是什麼﹐他舉起五隻手指﹐之後解釋--我們五個人(即是指五個最高法院法官)說法律是什麼﹐法律就是什麼。因為美國最高法院有九名法官﹐得到五票的一方必定是最終贏家﹐一個在短期內無人能否決(overrule)的贏家。
法律的字眼故然重要﹐但最終﹐主角永遠是法官的釋法。
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