由此可見，上述條例清楚指出只有在2種情況下才可以委任「官派律師」，分別為 (1) 被告人有經濟困難；或 (2) 因其他原因沒有委託辯護人。在12名港人被捕的案件中，暫時沒有任何被告人提出過因有經濟困難而需要委託「官派律師」，而他們的家屬亦早已安排律師為他們辯護。因此，若當局仍執意該等被捕人必須使用「官派律師」，此等做法無疑扭曲了法律援助制度，變相剝奪「敏感案件」當事人及其家屬自行委託律師的權利。故此，當局應提出確切的法理依據，向外界解釋在上述情況沒有出現下，委派「官派律師」為何合法。
In Hong Kong, once eligible citizens to Legal Aid made successful applications, not only can they obtain advice from competent legal representatives, their legal fees are also greatly reduced. Similarly, legal aid agencies in the Mainland China, which is under another jurisdiction, arrange lawyers (some stationed in People’s Courts or detention centers) for defendants who are in financial difficulties. The lawyers designated by the authorities to handle sensitive cases are collectively referred to by people as “official lawyers”. However, according to reports, these “official lawyers” were not welcomed. Regarding the case of 12 Hong Kong citizens detained in Shenzhen, their families 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): Distrust by defendants or family members 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. These practices made people 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: failing to notify the date of the trial and sentence, and refusing to meet
One of the defendants, Cheng Yuan in “Changsha Funeng Charity Case”, has recently been convicted of “subversion of state power”. According to his 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 this lawyer to request a meeting, which was in vain. In fact, according to Article 30 of “Lawyers Law of the People’s Republic of China”, 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. If the “official lawyers” deliberately evaded meetings and refused to disclose all the details of the case to them, how can one 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, both grounds are lacking. Therefore, if the authorities still insist that the detainees 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.
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.
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. 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. //