By Grenville Cross
On January 20, there was a changing of the guard at the Hong Kong Bar Association (HKBA), when Philip Dykes SC was replaced as chairman by Paul Harris SC. Although, by convention, the chairman only serves for two terms, each of one year, the lack of interest among possible successors resulted in Dykes completing three terms. It was, in any event, time for a change.
However, those hoping for a new direction will be disappointed, with insiders describing Dykes and Harris as two sides of the same coin. Although the HKBA describes itself as "the professional organization of barristers in Hong Kong", it has come to resemble a political body. Given the policy failures of, for example, the Civic Party, which is lawyer-dominated, the HKBA has increasingly sought to fill the political vacuum which resulted, and this is unlikely to change.
Having opposed the Security Bureau's fugitive surrender bill, the HKBA persisted thereafter with its hostility to government policy, to the delight of the political opposition. Once the social disorder erupted on June 9 2019, it invariably displayed hostility towards the police force, the government, and the central authorities. Of course, after things turned violent, it mechanically criticized the protesters' attacks on, for example, the legislative council, the courts and public facilities, but its responses, when they came, were often half-hearted, even tepid, leading to an internal backlash.
When the HKBA's deputy chairman, Edwin Choy Wai-bond, abruptly resigned on October 12 2019, he said it was because of the association's failure to condemn protesters' violent acts during the anti-government demonstrations. He explained that many of the protesters had "been stirred into abandoning reason and replacing it with barbarism", resulting in destructive conduct "far beyond the set boundaries laid down by the law". He revealed that most members of the HKBA 's governing council were "reticent to state, with unequivocal clarity, that both the rioters and those who proffer excuses on their behalf should be condemned".
According to reports, Choy also felt the HKBA had not respected the wishes of its approximately 1,500 members. He considered that the association had hurt the good relationship between legal bodies in Hong Kong and mainland China, which was quite true. Indeed, the level of exchanges between the HKBA and other parts of the country has declined, just as the association has sought to enhance its ties elsewhere, including in the United States. Quite clearly, what Choy was saying needed to be said, although his remarks were not the wake-up call for which many had yearned.
In his farewell remarks, Dykes indulged in some grandstanding, which will have caused alarm locally and grabbed attention abroad. Earlier, on July 2 2020, the HKBA had announced that it was "greatly concerned with the contents of the National Security Law and the manner of its implementation", and he reverted to this theme. This time, however, Dykes concentrated on the judges, claiming that the new law "has diluted judicial independence", resulting in a Judiciary which is now only "substantially" independent. He reasoned that Hong Kong no longer has "a totally independent judiciary, as the judges are designated by the chief executive", which is obviously nonsensical. It will, however, now be picked up on by China's adversaries, who are always looking for fresh ammunition to fire at Hong Kong, and they will be delighted with Dykes' help.
What, however, Dykes failed to mention were the crucial assurances which the former chief justice, Geoffrey Ma Tao-li, provided on July 2 2020. Ma explained that all judges designated by the Chief Executive to handle national security cases come from the existing ranks of the Judiciary, and they are not, as Dykes implied, some alien breed. All judges, Ma noted, are appointed by the Chief Executive under the Basic Law (Art.88), on the recommendation of the Judicial Officers Recommendation Committee, which is chaired by the Chief Justice (Art.88).
In addition, said Ma, designated judges, like all judges, are appointed by the chief Executive on the basis of their judicial and professional qualities (Art.92). He explained that "these are the only criteria relevant to the appointment of judges. This therefore means, for example, that judges should not be designated on the basis of any political considerations. This reinforces the principle that in the handling or determination of any legal dispute, only the law and legal principle will be considered". Although this was immensely reassuring, Dykes ignored it, which did nothing to make his denial of having turned the HKBA into a political body any more credible.
There are, moreover, no signs that, with Dykes' departure, the HKBA will get back on track. Once it became clear that nobody, not even the deputy chairman, was prepared to step up, because, according to insiders, the role has become too quasi-political, it was announced that his successor would be Harris. Like Dykes, Harris is described as a "human rights lawyer", but is best known for having founded (1995), and then chaired, Hong Kong Human Rights Monitor (HKHRM), which, under the guise of human rights advocacy, has stoked concerns over government policy and national security legislation.
A check, moreover, with its Wikipedia entry, reveals that the "HKHRM receives substantial funding from the National Endowment for Democracy, an organization predominantly funded by the US Department of State". If accurate, this is fascinating, as the state department was, until January 20, headed by Mike Pompeo, who spearheaded the sanctions on Hong Kong and China officials, and stripped the city of its preferential trading status with the US. On January 21, moreover, Pompeo was himself sanctioned by China for having "seriously violated China's sovereignty", and, if HKHRM is in fact still taking money from the NED, this will surely require review, not least because of the NED's role in furthering US foreign policy objectives, covert or otherwise.
Upon his election, it came as no surprise that, instead of focusing on the future of the legal profession, Harris opened fire on the national security law. He said he hoped to "campaign" for changes to the new law, and to "explore" possible "modifications" with the government, not least because some of its provisions are at odds with the Basic Law. He was "particularly concerned" over Article 60, which confers certain exemptions on personnel from the Office for Safeguarding National Security while performing their duties, and Article 55, which, in exceptional circumstances, allows criminal suspects who cannot safely be tried in Hong Kong to be tried in mainland China.
This, quite clearly, was naïve in the extreme, as the national security law was enacted, after full deliberation, by the National People's Congress Standing Committee, and not even Harris can change this. Indeed, even if it wanted to, there is no way the Hong Kong government could seek to bring about amendments, unless, of course, manifest deficiencies in the law's application had arisen, which is not the case. As anybody who lived through the armed insurrection of 2019 should know, there can be no return to those days, and the city must be fully protected from any further depredations by China's adversaries, whether internal or external.
Unfortunately, Harris's comments were not simply a rush of blood to the head, and a day later he returned to the attack. Having referred to parts of the national security law as "profoundly offensive", he then turned his fire on the police force. Sounding more like a Civic Party hack than the head of a professional body, he announced that it was "fairly obvious" that the arrests of 53 individuals on January 6 were an abuse of the law, and a "deliberate intimidation of the democratic movement". Although this will play well in foreign parts, it is regrettable coming from someone who has not studied the evidence available to the police, and who appears unaware of the distinction between the arrest of a suspect and the charging, which may, depending on the investigation, never happen.
If, as he claimed, Harris wants to rebuild a dialogue with the mainland's legal authorities, he has got off to a dreadful start. Over the last three years, contacts dried up, and if he carries on like this they will not resume. The sad truth is that, given its track record, the HKBA has long since forfeited the confidence of its mainland counterparts, and nothing Harris has said so far will turn things around. If, however, he is prepared to stop using the HKBA for politicking, to adopt constructive approaches to legal policy objectives, and to concentrate on the professional interests of the membership, including greater opportunities for barristers in the Greater Bay Area, better relations may still be possible. It will, however, be a hard slog, as trust, once lost, is not easily restored.
Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of DotDotNews.
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