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【 Why Defendants and their Families Resist Appointment of “Official Lawyers”?】(17 September 2020)

In Hong Kong, the Legal Aid Department will provide financial assistance to eligible applicants to subsidize the attorney's fees and litigation costs incurred by the applicants. Similar arrangements are also found in mainland China, which is under another jurisdiction. Legal aid agencies in the Mainland will arrange lawyers for defendants who are in financial difficulties, or they will arrange duty lawyers stationed in People's Courts or detention centers. The lawyers designated by the authorities to handle sensitive cases are collectively referred to by people as “official lawyers”.

For most cases in Hong Kong, all parties involved in legal proceedings will opt for legal aid. As once the application to the legal aid is successful, not only can the applicants obtain advice from competent legal representatives, their legal fees are also greatly reduced. If the application is not approved, the applicant can even review or appeal the decision. However, in mainland China, according to reports, "official lawyers" were not preferred or welcomed. Regarding the case of 12 Hong Kong citizens detained in Shenzhen, the families of the arrested persons held a press conference which pointed out that their reluctance to accept the appointment of “official lawyers” even their own appointed lawyers were rejected by the authorities. Why the difference, people may ask, if the “official lawyers” are supposed to be of the nature as a legal aid lawyer?

 

Reason (1): Defendant/ Family Members Fail to Believe that the “Official Lawyers” will Do their Best to Defend
There is a common distrust that many defendants or family members fail to believe that “official lawyers” are defending in good faith. On one hand, these lawyers generally all “appeared” after the family members had already arranged a lawyer for the defendant. On the other hand, the law enforcement agencies required the family members to hire “official lawyers” and dismiss the lawyer(s) they had originally hired. According to Article 30 of “Lawyers Law of the People's Republic of China”, the main duty of a lawyer is to defend a client. Since the duties of various lawyers should be similar, why do the authorities eagerly and strongly require their families to use “official lawyers”? Therefore, some family members are highly doubtful about the independence of these “official lawyers” and whether they are sincerely defending.

Moreover, “official lawyers” are assigned by law enforcement agencies (such as detention centers) in Mainland China. This mechanism in which the criminal prosecution department appoints a lawyer to defend the defendant is unusual in an advanced society under the rule of law, because the criminal prosecution department is responsible for prosecuting the defendant and completely conflicts with the work of lawyers defending the defendant.

 

Reason (2): The Works of “Official Lawyers” are Full of Flaws
These included failing to notify the defendants' families of the date of the trial and sentence, and refusing to meet. We cannot deny that certain “official lawyers” are sincerely fulfilling their responsibility, but there are also many of them who have made mistakes in their defense arrangements, which makes one wonder “who are they working for?”.

One example is the defendant in “Changsha Funeng Charity Case” whom has recently been convicted of “subversion of state power”. According to one of the defendants, Cheng Yuan's wife, Shi Minglei, the authorities have refused her lawyer Wu Youshui hired for her husband, instead asking an “official lawyer” to intercept the case. However, that lawyer never communicated with Shi, not even the news that her husband had completed the trial and was sentenced. It was only when she contacted the prosecutor's office has she learned this. She later went to the law firm of the this lawyer to request a meeting, which was in vain.

In fact, according to Article 30 of “Lawyers Law”, lawyers should strive to protect the rights of the defendant, who undeniably enjoys the rights to notify his/ her family of the arrangements for the trial. As the “official lawyers” deliberately evaded meetings with the defendant's family and refused to disclose all the details of the case to them, how can they gain reassurance?

 

Lacking Legal Basis: Neither Defendant faced Financial Difficulties, Nor Family Members Apply for an “Official Lawyer”
Article 35, Item 1 of “Criminal Procedure Law of the People’s Republic of China” stated, “Where a criminal suspect or defendant has not retained a defender for financial hardship or other reasons, the criminal suspect or defendant or his or her close relative may file an application with a legal aid agency.” Also, Article 11 of the “Legal Aid Regulations” promulgated by the State Council also clearly states that in criminal cases, “official lawyers” are only applicable when the defendant has financial difficulties.

Hence, the above regulations clearly state that “official lawyers” can only be appointed under two circumstances: (1) the defendant has financial difficulties; or (2) defending lawyers are not appointed for whatever reasons. For the case of 12 Hong Kong residents, it is obvious that none of the defendants has ever mentioned that they need to appoint an “official lawyer” because of financial difficulties, and their family members have already arranged lawyers to defend them. Therefore, if the authorities still insist that such arrestees must use “official lawyers”, such practices will undoubtedly distort the legal aid system and deprive the parties of "sensitive cases" and their families of the right to appoint lawyers by themselves. Therefore, the authorities should provide a legitimate basis of the appointment of “official lawyers” in such circumstances.

 

Expectation

China has claimed itself as a “Country of Rule of Law” time and again. In accordance with its principle of “governing the country by law”, we believe that all its decisions must be lawful. Yet, as aforementioned, the fact that currently relevant authorities mandatorily demanded the 12 Hong Kong detainees in Shenzhen to appoint “Official Lawyers” is not premised on sound legal foundation. Laws that China has promulgated denotes that at this moment, forcibly requiring those detainees to use “Official Lawyers” are not legal.

As a member of the United Nation, China is therefore obligated to strive to achieve the principles enunciated in “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”. Principle 19 therein clearly states that “A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world”.  

It is greatly wondered that whether the detainees have the right to autonomously elect defence lawyers. The names and offices of lawyers appointed by their family members are open and disclosed. In stark contrast, the names of the Official Lawyers are not known to the outside world, save to mention their offices and contact methods.

Warranting detainees the rights to autonomously elect competent lawyers to defend for themselves is the only way to align with China’s repetitive claims that it is a country of rule of law and it governs the country pursuant to laws. However, in the current case, multiple unanswered questions pose significant scepticism towards the comprehensiveness of China’s legal system. Why lawyers appointed by family members are refused? Why mandatorily demand family members to accept “Official Lawyers”? Do detainees truly elect the appointment of “Official Lawyers” upon knowing that family members have arranged lawyers for them? What is the legal basis of appointing “Official Lawyers”. The answers for these questions are still lacking.

It is hoped that China would comply with its “governing the country” through complying with its domestic laws and also international standards published by the United Nations, to provide all protection to detainees, so as to plant confidence among people regarding its legal system that it fully provides detainees the right of defence, and to be subject to fair, just and open trial.  

 

Sources

https://bit.ly/2RAyj1W (Report on Press Conference of Family Members regarding 12 Hong Kong People Detained in Shenzhen by The Standnews)

https://bit.ly/3mvYLYM (Laws on Lawyers of the People’s Republic of China)

https://www.rfa.org/mandarin/yataibaodao/renquanfazhi/gf1-09112020080543... (Reports on Changsha Funeng Charity Case by Radio Free Asia)

https://www.pkulaw.com/chl/5a06769be1274052bdfb.html (Criminal Procedure Laws on the People’s Republic of China)

http://www.moj.gov.cn/government_service/content/2017-01/27/643_149062.html (Legal Aids Rules of the People’s Republic of China)

https://www.un.org/zh/documents/treaty/files/A-RES-43-173.shtml (United Nation’s Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment)

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