On 27 August 2020, 12 Hong Kong Citizens were detained in Yantian Detention Centre in Shenzhen by Chinese authorities for violating Article 322 of “The People’s Republic of China Criminal Law”. Many of their family members have retained lawyers to act for them, but most of these lawyers’ request to meet the detainees had hitherto been rejected by the authorities mostly because of (1) these representing lawyers lack notarised proof; or (2) these detainees had already arranged other official lawyers for defence.
Reason (1): Lack of Notarised Proof
Article 2 of “Notary Law of the People’s Republic of China” clearly enunciates that “Notarization means an act performed by a notarial institution, upon the application of a party concerned, such as certifying the authenticity and legality of a (N.B. the word “civil” does not appear here, but appears in the Chinese version of the text) legal act, a document or a fact of legal significance according to the statutory procedures”. Relevant domestic laws in China clearly denote that the preparation of notarised proof is only relevant to civil cases. As such, relevant authorities shall put forward clear legal foundation, which is arguably lacking at the moment, as no notarised proof is needed for lawyers to meet the detainees.
If the authorities seek to rely on the wordings of “a document or a fact of legal significance according to the statutory procedures” in Article 2, then the point of dispute becomes a matter of interpretation of law. Article 69 in “Civil Procedure Law of the People’s Republic of China” clearly recognises the legal authority of a notarised proof in a civil case. Yet, a similarly drafted article does not appear in “Criminal Procedure Law of the People’s Republic of China” whatsoever. In fact, upon perusing the whole text of the “Criminal Procedure Law”, except the phrase “notarising official” appears in Article 33 section 3, the word “notary” does not appear in the “Criminal Procedure Law” at all. Pursuant to a basic rule of interpretation of law, the absence of an Article which is similar to the Art 69 of “Civil Procedure Law” very likely means that the rule in Art 2 “Notary Law” does not apply to the procedure of criminal cases.
Furthermore, Article 34 Section 3 of “Criminal Procedure Law” clearly explicates that relatives can arrange lawyers for detainees without mentioning the requirement of preparing a notarised proof at all. As such, the relevant authorities should speedily and expediently arrange meetings for detainees with their legitimately appointed lawyers in accordance with the laws as aforementioned.
Reason (2): Detainees have alternatively appointed official lawyers
It is indisputable that detainees do have the rights to appoint their own lawyers. Yet, according to multiple reports, similar situations have repetitively happened where lawyers representing for sensitive human rights cases are allegedly disengaged by detainees. One of the recent example is Chinese human right lawyer Yu Wensheng, who has nearly been detained for 1,000 days. Albeit Yu Wensheng clearly stated in a video that “he would never give up his right to choose his own lawyer”, relevant authorities repetitively claimed that it was him who demanded the disengagement of lawyers retained for him by his wife Xu Yan. As such, most of the commentaries think that such “disengagement” is likely made involuntarily under intimidation.
Other Comments
Some comments from newspapers argue that arranging official lawyers are helpful to the current cases, saying that “persons from the pro-establishment camp wonder, these civil rights lawyers have bad relationship with legal enforcement agencies in the Mainland, and situation may turn sourer if they represent (these detainees)”. It is regretfully submitted that this kind of commentaries clearly contradict to the “Criminal Procedure Law of the People’s Republic of China”, since Article 5 therein clearly enunciates that “The People’s Courts shall exercise judicial power independently... and they shall be free from interference by any administrative organ, public organization or individual”. Hence, even though defences lawyers have unpleasant relationships with the legal enforcement agencies (not admitted), it would not intervene the People’s Court which exercises an independent adjudication power. Those commentaries preaching the disengagement of civil rights lawyers are largely inaccurate in understanding China’s judicial procedure.
Lu Siwei and Ren Chuenniu, both appointed by the detainees’ family members, faced cyber-attacks which claimed that Lu had stood against the Chinese people for representing the detainee, and received officials’ calls claiming that “representing a detainee who advocated Hong Kong Independence would be deemed unpatriotic” respectively. Yet, according to Article 11 of “The People’s Republic of China Criminal Procedure Law”, “a defendant shall have the right to defence, and the People’s Courts shall have the duty to guarantee his defence”. Article 12 therein similarly stipulates that “no person shall be found guilty without being judged”. Therefore, to correctly manifest the comprehensiveness of China’s legal system, people should argue for the rights of defence and fair trial for those detainees instead of the other way round.
Expectation
In view of the current case, China should handle the case with correct legal procedures by complying with the aforementioned domestic laws. According to the analysis above, detainees should have the right to accept lawyers appointed for them by their family members.
Furthermore, according to Article 39 Section 2 of the “Criminal Procedure Law”, detention centres should arrange meeting for detainees with their defence lawyers within 48 hours after the defence lawyers have made such a request. Thus, it is hoped that relevant authorities can accordingly organise meetings which are legally allowed for those detainees with their defence lawyers.
China is one of the United Nation’s State Member, and therefore it is obligated to strive to achieve standards promulgated in the United Nation’s “Basic Principles on the Role of Lawyers”. Article 5 therein clearly states that “Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence”. Article 16 also reads that “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference… and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics”.
Therefore, it is expected that relevant authorities in China can handle the current case in accordance with the international standards and domestic laws as enlisted above. To strive to ensure that they and their lawyers can receive a lawful criminal procedure, as well as fair, just and open trial of the case.
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/2RAjgFK（Notary Law of the People's Republic of China）
https://bit.ly/2RBRLLI（Civil Procedure Law of the People's Republic of China）
https://www.pkulaw.com/chl/5a06769be1274052bdfb.html (Criminal Procedure Law of the People's Republic of China）
https://www.un.org/zh/documents/treaty/files/OHCHR-1990-2.shtml（United Nation's "Basic Principles on the Functions of Lawyers"）