Randy Shek: The Real Challenge - Civil Rights Lawyers

The Real Challenge - Civil Rights Lawyers

Translated by Chen-t'ang 鎮棠, written by Randy Shek 石書銘 (Progressive Lawyers Group 法政匯思), edited by Karen L.
Original: http://www.pentoy.hk/%E4%B8%AD%E5%9C%8B-2/mpforum2013/2015/03/31/%E7%B6%AD%E6%AC%8A%E5%BE%8B%E5%B8%AB/ 

Back in 2012, on the People's Daily Overseas Edition, there is an article named "What Are the Real Challenges of China" which mentioned the potential threats against China in the next five to ten years. It said, the United States will adopt more "non-military tactics to attenuate or tamper the rise of China", precisely "...under the banner of Internet freedom, subverting the traditional model of the top-down Chinese democracy through the immersion of forces, for instance the civil right lawyers, underground religions, dissidents, online opinion leaders and the underprivileged community, infiltrating the men in the street and forcing China to change". What is more, there are Chinese-mouthpiece media referring these people as "The New Five Black Categories".

It is known among the ones interested in modern Chinese history that during the Cultural Revolution, Mao Zedong labelled the landlords, rich farmers, anti-revolutionists, bad-influencers, and rightists as "Five Black Categories". These people and their families were persecuted by the regime — some were forced to admit to various crimes in the struggle sessions, some were killed by lynching, and some were given re-education through labour and ideological re-moulding. And why, do the civil rights lawyers come first in the new “Five Black Categories”?

Pu Zhiqiang, a mainland Chinese civil rights lawyer.

Strictly speaking, each and every lawyer is supposed to be a civil rights lawyer. When a criminal defense lawyer is to provide legal support to his/her client in a police station, it is his/her responsibility to inform the suspect of one’s Miranda rights, so that the suspect would not wrongly regard one’s right as a behaviour obstructing the constables in exercising their authorities or would not make any confession which might harm one’s own interests. Before trial, the defense lawyer will require the prosecution to disclose all related documents and evidences, including the ones which might be conducive to the defendant. Added to that, the defendant has the right to know what related evidences the prosecution has. When the defendant is brought before the court, it is the defence lawyer’s duty to ensure a fair trial, so that the defendant's rights are protected. As for civil cases, it is a basic requirement for solicitors hired to protect a client’s legal interest. For property purchasing, the solicitors in charge should ensure the interests of their customers over certain property or properties be protected. For the solicitors providing legal services for public listings, it is their responsibility to protect the interests of both that company and its shareholders. And when the lawyers are hired, they should help their customers at best about their legal rights.

In Hong Kong, when most people think of "civil rights lawyers", they will naturally relate them to the ones handling cases involved the Basic Law or the Hong Kong Bill of Rights Ordinance (HKBRO). This kind of lawyers handles cases involving freedom of speech, assembly, demonstration or protest. Some others might help refugees to seek asylum in order to prevent them being repatriated by the Immigration Department, so that the refugees no longer have to live under inhumane treatment based on one’s political preference, race, religion or other reasons.

Another type of civil rights lawyers known by Hongkongers is the ones handling cases involved transsexual marriage, in which the lawyers quoted “equal marriage rights for all” and “the freedom to marry” justifying the right enshrined in the Basic Law and HKBRO. All of these cases are in common: by challenging the government departments or public organisations, it is to find out whether they exercise legally their public authorities — precisely whether they during the course, violate the public rights written in the Basic Law and HKBRO. To put it another way, civil rights lawyers maintain the boundary between human rights and the government's rights. 

It is believed that the major reason for these civil rights lawyers to be ranked the top of the new Five Black Categories is that they stand on the side defending this boundary which the regime is not allowed to cross. Besides the basic rights, such as freedom of speech, of the press, of assembly, of thought and of religion, The HKBRO and ICCPR affirm that some of the civil rights shall be upheld prior to anything else: the right to life, the refusal of any torture, inhuman treatment or medical or scientific experimentation on oneself, the right to be not slavery or servitude, the right to avoid imprisonment under breach of contract, full equality to a fair and public hearing and so on. The objective of these related provisions is to prevent an autocratic and despotic regime. The existence of civil rights lawyers is a necessity in a rule-of-law society. If the lawyers give in, then rule of law will inevitably lead to collapse.

But still, one may wonder: why would civil rights lawyers pose a threat to China's rise? Doesn't it mean the cost of China's rise is to infringe rights, shattering the right to life, the refusal of any torture, inhuman treatment or medical or scientific experimentation on oneself, the right to be not slavery or servitude, the right to avoid imprisonment under breach of contract, full equality to a fair and public hearing and so on? When a regime neglects such civil rights, doesn't it become less likely to implement democracy and freedom?

Eventually, the very question we should ask is not the one to figure out the potential influence new Five Black Categories will have on the way of the rise of China, but rather what sort of country China is when they resort to ways in suppressing these so-called 'New-Five-Black-Categories' threats?".

Progressive Lawyers Group is a group of Hong Kong lawyers dedicated to promoting core values of rule of law, judicial independence, democracy, human rights, freedom, and justice.