Chen Chunyi, September 24, 2020
Due to the arrest of the 12 Hong Kong residents who were brought to Shenzhen to face charges, the phenomenon of “government-designated lawyers” (官派律师, i.e. those approved by the Chinese authorities to represent defendants in politically sensitive cases) has attracted widespread attention from the international community. In fact, this crude and malign method has long featured in mainland Chinese cases involving human rights issues or dissidents. From the cases of “709” mass arrests of human rights lawyers in 2015, to the cases of Zhen Jianghua (甄江华), the three NGO workers of Changsha Funeng NGO (长沙富能), lawyer Yu Wensheng (余文生); from Twitter netizen Ling Haobo@52ling (凌浩波 @52ling), to Terminus2049 (端点星) — all of which involved “government-designated lawyers.”
People in Hong Kong and other regions with democratic values are used to society with strong rule of law. They have not experienced the manipulation of justice under one-party dictatorship. It may be difficult for them to imagine and understand what is going on with the “government-designated lawyers.” What is their legal basis? What do they do or not do? What is their job? What similarities and differences are there between them and ordinary defense attorneys?
As the brother of Chen Mei (陈玫) in the Terminus2049 case, I have been fighting a months-long battle of wits and courage with the official lawyers, during which I read up up on some relevant info. Here I will attempt to answer some questions about the phenomenon of government-designated lawyers, in the hope that you may understand what they are. I also invite all netizens to make corrections to and supplement the information I’ve provided.
“Government-designated lawyers” is an informal popular term. It refers to the fact that in cases involving human rights and political dissent, the Chinese Communist Party (CCP) authorities employ so-called “legal aid lawyers” (法律援助律师) to the clients’ attorneys for the purposes of deception and coercion. The main legal basis for their existence is covered under the Criminal Procedure Law (刑事诉讼法) and the Legal Aid Regulations (法律援助条例).
The phenomenon of “government-designated lawyers” has long existed, but the CCP regime has always denied this. In 2017, the All China Lawyers Association (中华全国律师协会) went so far as to explicitly declare that it was “opposed to the labelling of attorneys as ‘government-designated lawyers’ or ‘diehard lawyers.’”
A spokesperson for the All China Lawyers Association said: “Every lawyer implements the laws and regulations of the People’s Republic of China and is a member of socialist legal workers. In this sense, the 330,000 Chinese lawyers are lawyers within the system. There is no such thing as a lawyer outside the system.”
Article 35 of the Criminal Procedure Law of the PRC stipulates:
“If the criminal suspect or defendant does not appoint a defense attorney due to financial difficulties or other reasons, the defendant or his close relatives may submit an application to the Legal Aid Agency. For those eligible for legal aid, the Agency shall designate an attorney to provide defense.”
“If the criminal suspect or defendant is blind, deaf, mute, or suffers from mental disability such as does not completely affect the defendant’s comprehensive ability or control over his behavior, and has not selected a defense attorney, the people’s court, people’s procuratorate and public security organs shall notify the Legal Aid Agency to designate an attorney to provide defense. “
“Criminal suspects and defendants may be sentenced to life imprisonment or death; if no defense attorney has been engaged, the people’s court, people’s procuratorate and public security organs shall notify the Legal Aid Agency to assign an attorney to provide defense”.
All the official lawyers who participated in the CCP’s persecution of human rights acted as so-called “legal aid lawyers.” We do not deny that in some cases that do not involve human rights or political dissent, some parties do need to apply for legal aid lawyers owing to financial difficulties or other reasons, and it is indeed possible that those legal aid lawyers can protect the legal rights of their clients
However, in cases involving human rights and political dissent, these so-called “legal aid lawyers” are definitely not there to defend the rights of the defendants, but to cooperate with the CCP regime in persecuting human rights. Therefore, in order to match terminology with reality, we cannot call them “legal aid lawyers,” but use the colloquialism “government-assigned lawyer” to distinguish them from true legal aid lawyers.
The persecution of human rights in the name of “legal aid” is a concrete manifestation of how the CCP regime operates: “Say all the pretty words, but commit all the worst crimes” (that is, lies and violence). The persecution of human rights in the name of “legal aid” is extremely deceptive, just like the name “People’s Republic of China” itself.
Below, I will compare the differences between “government-designated lawyers” and true defense attorneys in seven aspects, to help you better understand the sinister intentions behind the practice, the consequences thereof, and the importance of fighting for the right to fair defense.
(1) Defense attorneys are those voluntarily engaged by the parties or family members, while government-designated lawyers are unilaterally appointed by the CCP regime against the wish of both the parties and family members.
These lawyers are typically designated when the public security (police) or state security (intelligence) organs are conducting their investigations, but may also be assigned when the case gets to the procuratorate or the court. The authorities deceive or coerce the defendant into applying for legal aid, upon which the Legal Aid Center (which is usually affiliated with its respective Justice Bureau) agrees and sends for a lawyer.
When a person loses his personal freedom and faces an imminent threat of torture, he has little choice but to agree to the application for aid, which the CCP regime then terms “an individual’s voluntary application for legal aid.” During the events of the 709 mass arrests, human rights lawyer Wang Quanzhang (王全璋) remained steadfast in refusing an official attorney, which was a factor in his being tortured. We suspect that the government-designated lawyers in the Changsha Funeng and Terminus2049 cases were appointed after the clients were coerced into applying for legal aid.
The authorities sometimes threaten family members and ask them to dismiss the engaged defense attorney in a case so that the authorities can forcibly assign an official lawyer. In the case of Twitter netizen Ling Haobo, his father was forced to dismiss his original lawyer. Later, an official lawyer was sent to cooperate with the authorities in performing legal theatre, and Ling Haobo was tried in secret.
(2) Defense attorneys keep the relationship between them and the clients they represent public, while government-designated lawyers often conceal this relationship and represent clients in secret.
Among recent cases involving government-designated lawyers, the most typical is the Changsha Funeng case. The attorneys have never contacted the family of the clients, let alone communicated details about the case. The three defendants were tried in secret in early September, but the families still do not know exactly who the official lawyers are, and can only speculate based on some limited clues.
(3) Defense attorneys actively defend the rights of the parties and defend their innocence. (because they are all civil rights and political dissent cases), while government-designated lawyers occupy the number of lawyers allotted by the law and cooperate with the government to convict the parties.
According to the Criminal Procedure Law, each suspect or defendant can appoint a maximum of two attorneys simultaneously. To prevent an independent defense lawyer from representing the client, the CCP will send two official lawyers to occupy the allotted positions.
When government-designated lawyers are put on a case, it’s not to protect the rights of those involved, but to cooperate with the Party authorities to achieve a so-called “fair and just” farce. The Party does not want people to claim that it is unreasonable or doesn’t follow the law, so it needs a fig leaf like officially sanctioned lawyers to play the role. This sort of performance is no different from those that take place at the “democratic” National People’s Congress or National Committee.
Given that, in these cases, the Party has already decided the outcome, the crime and sentence aren’t determined by the prosecutor’s office or the court, one may wonder: Even if there weren’t any officially designated lawyers, or even if the defense lawyers engaged by the defendants or their families were actually allowed to appear in court to defend the client, the verdict would be the same. So what gives?
The answer: Indeed, there is almost no hope of changing a verdict. For example, in the Ilham Tohti (伊利哈木) case, even though lawyers Liu Xiaoyuan and Li Fangping appeared in court and mounted a solid defense, they were still unable to change the verdict. However in China, the importance of having a defense lawyer participate is not just in providing a legal defense (although this is the most important). It’s also in quickly making the case public and, within the limits provided by the law, helping those who are concerned about the case to understand it, and allowing clear communication between the accused and their friends and family. And these are all things that government-designated lawyers expressly would not do, as detailed below.
4) Defense attorneys will, within the limits set by law, promptly disclose information about the case and the defendant’s situation to the family, media, and all parts of society, while “government-designated lawyers” will only hide, will not disclose any of this information, and will turn cases into a virtual black-box.
In the Terminus2049 case, the government-designated lawyers even refused to disclose the name of the prosecutor to the family of the accused, and refused to provide details on the case.
5) Defense attorneys will actively work to contact families and apprise them of the situation, while government-designated lawyers often avoid family members and refuse to keep them informed. In the Terminus2049 case, the official lawyers flat-out refused to provide their cell phone numbers to the families, using only the office landline to contact them, which made it impossible for them to maintain contact and discuss the case in a timely fashion.
The government-appointed lawyers in the Changsha Funeng case were worse still; from beginning to end, they didn’t contact the families of the accused at all. When Shi Minglei (施明磊 @MindyShi227), the wife of Cheng Yuan (程渊), found out the identity of one of her lawyers and came to his door to inquire about the case, she was threatened and berated by the lawyer’s coworkers.
6) Defense attorneys help family members to pass along information when not prohibited by law, while government-designated lawyers refuse to help family or clients to pass along information, or only do so selectively.
This kind of selectivity is not a judgement based on the law, but based on the needs of how to better forge the case against the persecuted parties. For example, if family members want to tell their detained loved one “we believe you are innocent,” these lawyers would not help pass the message.
It is very important to help deliver enough useful information to someone in custody. They are completely isolated from the outside world, and rely solely on their lawyers for all communication therewith. If their lawyers can help pass along the concern, attention, and support of those outside to them, even if they cannot be released immediately, it will make them feel they’re not alone and abandoned, and they’ll be more confident. On the flip side, if lawyers refuse to help them maintain contact with the care and support coming from outside, it will cause them to spiral into despair.
7) Defense attorneys help both families and clients, providing encouragement and support, while the government-designated lawyers often lie to, insult, or even threaten families and clients.
The government-designated lawyers for the Terminus2049 case repeatedly lied to the families, for instance delaying meetings “because of the coronavirus outbreak,” when in fact Beijing had not halted meetings at detention centers during the outbreak.
Government-designated lawyers on the Changsha Funeng case even berated, insulted, and threatened family members in front of their young children.
On the whole, government-designated lawyers are basically running dogs for Party authorities, and the reason they are involved in cases is not to protect the rights of their clients, but to cooperate with the Party in putting on a show, cooperate with the prosecution and judiciary to conclude cases without transparency, and to quickly convict and sentence defendants in politically sensitive cases or those involving human rights.
You may wonder, if a defense lawyer handles a case, it won’t help a client to be released or lighten their sentence. If an officially designated lawyer is assigned to the case, it will not necessarily lead to a heavier sentence. So is it really necessary to reject an official lawyer?
Of course it’s necessary. As discussed earlier, even if a defense lawyer is unable to help reduce the client’s sentence, at least they will be able to publicize the case and avoid it being conducted in secrecy. Making cases open and transparent is very important in and of itself.
The phenomenon of “government-designated lawyers” is visibly increasing in frequency and speed, rapidly becoming a common method used by the Party to suppress civil rights and attack dissidents. I hope that international organizations and media outlets will continue to pay attention to this phenomenon, and to work together to prevent it from becoming even worse. The powerless have few cards to play, but we must always try. We have no other choice.
Diehard lawyers are a small number of lawyers known for fighting fiercely in the court, especially over procedural irregularities in power abuse cases.
Chen Chunyi (陈纯一) is the elder brother of Chen Mei, defendant in the Terminus2049 case.
Chinese internet users who uploaded coronavirus memories to GitHub have been arrested, quartz, April 27, 2020.
China Rights Lawyer Sentenced to 4 Years Following Secret Trial, Voice of America, June 17, 2020.
Zhen Jianghua: The Perilous Life of a Young Activist in China, Huang Yu, January 5, 2017.