International Law

Law As China Social Change Agent. I'm Getting Emotional.

By Dan

When I was just beginning as a lawyer, one of my clients complained that she had the sense I was not 100% convinced of the merits of her company's case. She was obviously troubled by this and so I was troubled by it too. I went to a senior partner and explained the situation with the slant that I must have been doing something wrong to have instilled such doubts in my client.

The senior lawyer chewed me out for not having chewed out the client. He told me that a lawyer's job is NOT to buy into a client's case 100%, but to be the client's voice of reason and counsel. He said that is what I should have told the client and if she did not like that explanation, she could walk and we would be better off for it. He was absolutely right.

And one of the things I love about the law is how logical and unemotional it is. It is based on applying legal principles to facts. Take the United States Constitutin's First Amendment as an example. It grants freedom of speech. Freedom of speech is easy to like when the person speaking agrees with it. Freedom of speech is not all that difficult to like when the speech is something you do not particularly like.  But when freedom of speech becomes difficult to like is when you get an evil bigot like the Fred Phelps of the Westboro Baptist Church (I am sure 99.999999% of all Baptists wish he would not use that moniker) preaching how God hates fags, and doing so at a funeral for an American soldier killed in Iraq. Phelps believes God has come to hate America because we are too lenient with homosexuals and therefore God takes pleasure in the death of our servicemen. 

But, as exasperating as it sometimes is, the First Amendment does not care who is doing the talking or what that person is saying. That is both the cause of the frustration, but also of its ultimate beauty. There is an old saying that the law is blind.

The law, almost by its very nature, trends towards equality. It is hard to be a lawyer and believe in the value of laws without also believing in the importance of their being enforced equally. Does that always happen? Of course it doesn't. In theory, I favor the death penalty. I have no moral problem with the execution of someone like Ted Bundy or Steven Hayes. In real life, I oppose the death penalty because it is more likely to be invoked against poor African-American males than against middle-class white females. The law is color blind, but human beings are not. I also cannot stomach the idea of even one wrongful execution.

I am rambling on about these things because China may soon have a landmark court decision regarding discrimination against those who are HIV positive. This case involves a school teacher in the city of Anqing in Anhui province. It is believed to be the first case in China regarding workplace discrimination against HIV carriers. Here are the central facts, according to the People's Daily:

The department of education in Anqing had rejected Xiao Wu's application for a job because he had tested HIV positive. Under the civil service's recruitment policy, HIV carriers cannot be recruited as civil servants, Wei said in court.

However, under the Employment Promotion Law that took effect in 2008, it is illegal to reject any job applicant on the basis of an infectious disease.

I believe (though I am not certain) that the civil service recruitment policy is a provincial policy, while The Employment Promotion Law is a national law.  

The national law should trump the provincial law and I fervently hope the court applies the law blindly and unemotionally and appropriately administers the laws as written and by doing so, rules in favor of the plaintiff and in favor of fairness.

Laws and court decisions have the power to change minds and a decision in favor of the HIV infected plaintiff in this case could have that same power. If the court rules for the plaintiff, I will get emotional -- in a good way. That will be okay because I am not a lawyer nor the judge in the case. 

What do you think?

Full post as published by China Law Blog on October 15, 2010 (boomark / email).