Opinion | Beijing exchanges: Visits by legal professionals in national interest

By Grenville Cross

Whenever a professional body loses its way, there are consequences. An obvious example is the Hong Kong Bar Association (HKBA), which became increasingly politicized after 2018. As its credibility declined, so did its clout, at least in the places that matter.

After 1997, the HKBA was initially taken seriously both locally and nationally, although this all changed when its higher echelons became radicalized. Once infiltrated by the Civic Party, it morphed from a responsible legal body into a quasi-political entity, unrecognizable to many of its members. In 2019, for example, when fanatics sought to destroy the "one country, two systems" governing policy, it showed more empathy with the wreckers than it did with the forces of law and order, and came to be seen as part of the problem.

Apart from opposing the government's fugitive surrender proposals and criticizing the Police Force whenever possible, the HKBA displayed increasing hostility toward the central authorities. Although it sought to maintain a semblance of objectivity by criticizing the violent attacks on the legislature, the courts and the railways, its comments were mechanical and halfhearted, and few were convinced. It seemed to be more interested in playing footsie with China-hostile organizations abroad than in calling out those seeking to ruin Hong Kong.

Things came to a head when, on Oct 9, 2019, the HKBA's deputy chairman, Edwin Choy Wai-bond, resigned, citing its failure to condemn the protesters' violence. He revealed that most members of the Bar Council were "reticent to state, with unequivocal clarity, that both the rioters and those who proffer excuses on their behalf should be condemned". At best, therefore, they were keeping their heads down for fear of criticism, and, at worst, they were providing tacit encouragement to the mobs.

As if this was not bad enough, the then-HKBA chairman, Philip Dykes SC, on May 25, 2020, wrote to the American Bar Association (ABA), and other foreign legal bodies, to let them know of the bar's "deep misgivings" over the proposed security law, and urged them to "keep an eye on things" (which the ABA promised to do). Once the National Security Law for Hong Kong (NSL) was enacted on June 30, 2020, it drew a line under the turmoil and restored hope, but this was not how the HKBA saw things. It announced that it was "greatly concerned with the contents of the National Security Law and the manner of its implementation", and this was just the start.

On Jan 20, 2021, when Dykes, whose term was ending, gave a valedictory interview, he again targeted the NSL, alleging it had "diluted judicial independence", and that there was no longer a "totally independent judiciary". This assessment, which was contradicted by the judiciary itself, could have been scripted for him by the Civic Party, whose foreign supporters must have relished his slurs.

With Dykes' departure, it was hoped that a barrister of stature would emerge as his successor, instead of which things went from bad to worse. A British politician, Paul Harris SC, who was an elected councilor on the Oxford City Council, representing the anti-China Liberal Democrats, was parachuted in, and immediately took up where Dykes had left off. He declared that he found parts of the NSL "profoundly offensive", and would be seeking "modifications".

He followed this up with a scurrilous attack on the Police Force, claiming, without having studied the evidence, that the arrest of 53 suspects for endangering national security by participating in unofficial election primaries (to which 31 of them subsequently pleaded guilty) was an abuse of the law, and a "deliberate intimidation of the democratic movement".

Having built up a head of steam, Harris then told the HKBA's members that the NSL was "not consistent with the rule of law," such being the view of his political party, the Liberal Democrats (from which he initially refused to resign). As anger mounted throughout the legal world (and beyond), the HKBA realized it could no longer stay silent over his antics. It, therefore, announced it was "not a political organization", and that Harris had spoken in a "personal capacity", but the damage had been done, including in Beijing.

Until 2018, when Dykes became its chairman, there were ongoing exchanges between the HKBA and legal bodies on the Chinese mainland, including an annual visit to Beijing, but these all dried up in the Dykes-Harris era. Through their political activism, they forfeited the trust of their counterparts elsewhere in China, which was bad for the "one country, two systems" principle, which is based on mutual understanding and respect.

Although, separately, some people also attempted to radicalize the Law Society of Hong Kong, they did not succeed. Its leaders kept their eyes firmly on the ball and were able to uphold its professional status. One of its functions involves offering "its views from time to time on legal issues that are of public concern and promote Hong Kong's legal services locally and internationally", and, throughout the unrest, it maintained constructive engagement with the Chinese mainland's legal agencies, thereby helping to fill the void created by the Dykes-Harris axis.

Indeed, in 2019-2022, it fell to two of the Law Society's presidents, Melissa Kaye Pang and her successor, Chan Chak-ming, to provide the sort of leadership traditionally expected of the HKBA. Between them, they were able to maintain the credibility of the legal profession at a time when their bar counterparts had fallen down on the job. This meant they alone had to hold the fort until the HKBA sorted itself out, which finally happened on Jan 20, 2022, when Victor Dawes SC, not before time, replaced Harris as HKBA chairman.

Dawes immediately announced his plan to restore the HKBA's credibility, and he said upholding the rule of law would be prioritized, emphasizing this was "not a political concept". He added that "for political topics, that is not something the Bar Association should handle or discuss", and rejected any talk of the rule of law being "dead". As for the NSL, he was, unlike his two predecessors, open-minded, pointing out that it was still "early days", and that the courts should be given time to consider and interpret its provisions.

Regarding legal exchanges with the Chinese mainland, Dawes made clear that he wanted them to resume, and this has now come to pass. In February, he was invited to Shenzhen to meet the director of the Hong Kong and Macao Affairs Office, Xia Baolong. He was reportedly reassured by Xia over the future of the city's barristers, thereby putting to bed the rumor that a merged legal profession was on the cards. On the back of this meeting, normal contacts are now being resumed.

In what will be the HKBA's first such visit since 2018, Dawes will be leading a 20-strong delegation to Beijing in April. A series of meetings are planned, including with the HKMAO, the NPC's Basic Law Committee and the Supreme People's Court. After a five-year hiatus, there will clearly be much to discuss, and there will undoubtedly be a frank and constructive exchange of views. Dawes clearly deserves full credit for turning things around, and for taking steps to repair the damage associated with the Dykes-Harris era.

The barristers who participated in the earlier exchanges always found them very useful, and they promise to be even more beneficial this time. After all, Hong Kong has now been assigned a key role in the development of the Guangdong-Hong Kong-Macao Greater Bay Area, and its lawyers will be facilitating greater integration, including in the Qianhai Cooperation Zone. If, therefore, enhanced trust and deeper understanding emerge from the exchanges, the country as a whole will be the winner.

Although the HKBA's trip is attracting all the headlines, the Law Society is also visiting Beijing, and this week's visit is, because of the COVID-19 pandemic, its first since 2019. Its president, Chan Chak-ming, who is taking his whole council with him, calls the trip "very important", and visits are planned to over 10 government departments and institutions, including the National Development and Reform Commission and the National Lawyers Association.

As Chan has chaired the Greater China Legal Affairs Committee, he understands the opportunities opening up for solicitors in the GBA. In 2021, moreover, he was in the first batch of lawyers to take the new examination that enables suitably qualified people to practice commercial law on the Chinese mainland. He will, therefore, be well-placed to provide the officials he meets with direct insights into the challenges posed by legal integration in the GBA, and this will undoubtedly enrich the various discussions.

These two trips by legal professionals to Beijing clearly bode well for Hong Kong, not least because they indicate their views are being taken seriously by the people that matter. It will be down to Dawes and Chan to take full advantage of the opportunities their visits afford, and they must make up for the time lost through the twin disasters of the Dykes-Harris era and the COVID-19 pandemic. After all, the central authorities have placed great faith in the city, and its lawyers, together with its judges, underpin its legal system, which remains the key to its success.

In 2022, President Xi Jinping confirmed that the common law will continue after 2047. In consequence, Hong Kong's legal professionals have a vital role to play in ensuring the legal system continues to work well, and in upholding the rule of law. If, moreover, the "one country, two systems" principle is to operate to best advantage in terms of national development, the city's lawyers must vigorously engage with their mainland counterparts, and the significance of the two trips cannot be overestimated.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.