「官派律師」正式啟動

【文:鄒幸彤】

「官派律師」正式啟動 | Here Come The “Government-assigned Lawyers”

法律援助署終於不給刑事案件的當事人自己提名律師了。雖說之前早有跡象,但終於來到時還是覺得難以接受。「官派律師」的時代終究還是要到來了。

The Department of Legal Aid has finally decided that applicants in criminal cases cannot nominate their own lawyers. Though we saw it coming our way, it was still hard to accept when it eventually arrived. The time of “government-assigned lawyers” has after all fallen on us.

在「十二港人」案中,大家已見識過官派律師的「威力」。而如果有跟進過內地的良心犯案件,就不難發現,官派律師簡直是阻斷當事人和家人、支持者、甚至外界接觸的不二利器,讓案件能在完全秘密的狀態,完成一個「有律師」的所謂公平審訊,並讓當事人或家人自行選擇的律師完全沒有插手的機會。

In the case of “Hong Kong Twelve”, we have all seen the “power” of the government-assigned lawyers. If you have been following cases of political dissidents in mainland China, it won’t be difficult for you to find that the government-assigned lawyers are the best tools to block the way between the defendants, and their families, supporters and other people outside. Hence the cases can, in a completely secretive manner, complete so-called fair trials “with lawyers’ presence”. There is also no opportunity left for the defendant or his/her family to choose their own lawyers.

香港要做到秘密關押和審訊的難度比較高(但也別以為絕不可能,從而放鬆警惕),但律師仍是佔據著和還押、定罪在囚者的一條非常重要的溝通渠道。這麼一個對在囚者封鎖圈的「漏洞」,自然得想辦法堵住了。

It’s relatively more difficult to carry out secretive detention and trials in Hong Kong (however, never say never and never drop your guard). But lawyers are still occupying a very important communication channel of the defendants on remand or in prison. Such a “loophole” in the seal ring around those in jail of course must be plugged in one way or another.

我在想,假如我就「煽動他人顛覆國家政權」案申請法援,給我派個謝偉俊何君堯容海恩之類的律師,要我怎麼吞得下?先不論會否覺得他們必須聽從上意逼迫我認罪,也並不質疑他們的專業能力;但每個人自由選擇律師的權利之所以重要,就是因為律師與當事人之間的信任,不僅是「專業」兩字就夠的。就算你派來湯家驊如此資深的大律師給我,我也不可能對他完全推心置腹,把我案中甚至支聯會的一應事務都交代給他聽罷?

I have been thinking, if I apply for legal aid for my “incitement to subversion” case, and then I was assigned someone like Paul Tse, Junius Ho or Eunice Yung, how can I work with them? Not to mention whether I would believe that they would follow their superiors’ instruction and force me to plead guilty, nor that I have any doubt of their professional qualities, but the significance of free choice of lawyers lies exactly in trust between the lawyers and their clients, and it’s not just a matter of professionalism. Even a counsel as senior as Ronny Tong was assigned to me, I could still hardly confide in him and tell him everything about my case or the Hong Kong Alliance.

所以法援的這個改革,真不僅是把案件分得平均些那麼輕描淡寫的一件事,而是實實在在地損害了被告人的法律權利,甚至影響了公平審訊。尤其在性質比較敏感的--或者在當權者已經未審先判,以其他方式宣告了被告「有罪」--的案件中,被告人能信任其會繼續不畏權勢地去辯護的律師真的不多。如硬要指派一個當事人無法信任和溝通的律師,根本無法進行任何有實質意義的辯護。

So this reform of the legal aid system is not as simple as making case distribution more even but in fact undermining the lawful rights of the defendants as well as the fairness of trial. Particularly in some cases of relatively more sensitive nature - or when the authorities have come to a judgement before trial and declared that the defendants are “guilty” in other ways - there are very few lawyers whom the defendants can believe would fight the case without fear. If a defendant is forced to accept a lawyer he/she cannot trust or communicate, no meaningful defense can be carried out.

更需留意的是,法援的這次改革,是由被告人可以提名律師,一步退到被告人只能接受被指派的律師,連否決權都沒有留給被告人。被告人的意願一下子就變得不值一文,而這麼極端的改動,其實當局從沒有提出過任何必要的理由。即使是想把案件分給更多的律師,難道就不能有折衷些的方案?例如讓被告人提名多一些律師、或法援給多些選擇予被告人、或最起碼署方表示儘量考慮被告人意願?

Another point to note is that, this reform of legal aid is taking one step back from that defendants can nominate lawyers to that defendants can only accept the lawyers assigned to them without any right to say no. Instantly the will and preference of the defendants is rendered to something valueless. And for such a radical change, the government has not raised any reasons of necessity. Even if they want to share the cases among more lawyers, can’t there be any mid-way solution? For example, they can ask the defendants to nominate more lawyers, or the Department of Legal Aid can provide more options, or at least the department should take the defendants’ will into account?

於我本人來說,實際的效果就是,你要不允許我選擇律師,那我就很難申請法援了,只能靠自己的資源啦。如果真的請不起律師,那就自辯好了!誰叫我窮得響叮噹?

As for myself, the actual effect of the reform is that, if you do not allow me to choose my own lawyers, it would be difficult for me to apply for legal aid. Hence I can only rely on my own resources. If I can’t afford to hire a lawyer, I will have to defend myself in person because I am so poor.

可確實不是每個人都能夠說自辯就自辯,我是幸運地有法律背景才會有信心如此選擇。而其他人可能只能吞下「官派律師」;或者聘請了私人律師後,為避免法律費用不停攀升,只好趕快認罪了事。從政治審訊和社會運動的角度看.兩者都是很「傷」的選項,更不用說對個人公義的影響!

It’s also true that not everyone can simply stand up and defend themselves in person when necessary. I am merely lucky to have that option because of my legal background. Other people perhaps will have to accept the “government-assigned lawyers”, or after they hire someone in private, they must hurry to plead guilty and close the case to avoid the soaring fees. From the perspectives of political trial and social movement, both options are very hurtful, needless to say the impact on personal justice.

若然決心以政治姿態面對政治審訊,不想讓自己在審訊中被極可能具建制派政治背景的律師代言,那學會自辯,或許也是這個時代的必修課吧。只要不執著於法律論點的爭拗和勝敗,自辯也就並非一件那麼恐怖的事。只要把事實和道理說清楚就好,就像我們平時搞社會運動也要做的公共論述一樣。另一個選項,就是籌集到足夠的律師費,但觀乎政府對各個募捐平台的打壓和攻擊,一時三刻似乎也不大可能。

For someone determined to face a political trial in a political manner, it may be a compulsory course to learn to defend oneself so that he/she doesn’t have to be represented by a lawyer with pro-government political background. As long as the defendant can let go of the debates of legal points and the result of the trial, defense in person is not something too scary. Focus on making clear of the facts and reasons just like us presenting public narratives in social movements. Another option is to raise funds to pay the lawyers. Yet considering the government’s crackdown and attacks on different fund-raising platforms, this seems rather impossible for now.

很快就會有一堆國安相關案件要上區域法院和高等法院了,要不要法援,要不要自辯,可真是迫在眉睫的選擇。

Soon a bunch of national security law related cases will be heard in the District Court and High Court. To have legal aid or not, to defend in person or not, are becoming imminent choices to make.

不知道會不會有律師朋友願意給政治犯們上一上自辯課?

Would there be any lawyer who would like to teach the political prisoners how to defend themselves in person?

 

原文刊於作者 patreon

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