The Hong Kong Bar Association (“the Bar”) is the same age as the People’s Republic of China as both were born in 1949. Equipped with professional skills and knowledge of advocacy, members of the Bar are specializing in litigation in courts. The first two objects of the Bar are: (1) the maintenance of the honour and independence of the Bar and the defence of the Bar in relations with the Judiciary and the Executive and (2) the maintenance and improvement of the rule of law and the administration of justice in Hong Kong.
On Jan 18, 2018, Philip Dykes, who was chairman of the Bar from 2005 to 2007, defeated incumbent chairman Paul Lam Ting-kwok and was elected as the chairman of the Bar. Contrary to the convention of an automatic transition to the second term, Lam failed to secure a second term. Some legal practitioners attributed Lam’s defeat to the politicization of the election. Dykes denied this and regarded the allegation as an insult. Shortly afterward, Dykes turned the Bar into an anti-government lobbyist group and the Bar became entangled in the rough and tumble of local politics underneath a veneer of legal professionalism.
What is the difference between politics and law? When the interpretations of law are subject to the wild swings of serious social divergence, politics and law begin to get connected. Although Dykes stated that he was not affiliated with any political party, and although he further stated that there was no link between his political background and legal opinion, his statements did nothing for his credibility. Prior to the Bar election, both Dykes and Lam exchanged legal views on the co-location arrangements proposed by the government. Can the tough remarks by Lam on this issue be divorced from politics? The answer was in the negative. Under Dykes, the Bar also criticized the Co-location Arrangement of Hong Kong Section of Guangzhou-Shenzhen-Hong Kong Express Rail Link. Citing a Chinese mainland official source, Ronny Tong Ka-wah, an Executive Councilor, said mainland officials brushed aside the Bar’s criticism because they were similar to those made by the Civic Party. Criticism against the co-location arrangements must be rational and evidence-based.
From a Marxist perspective, politics and law did not exist in a primitive society. They are essentially irreconcilable products of class contradiction, representing governing instruments of the ruling class. In stark contrast to the Marxist interpretation, many Western countries place emphasis on an independent judiciary. The judiciary in some Western countries is now acting as an independent check on the executive and a guardian against violation of human rights in accordance with the principle of separation of powers. Though politics and law are still interrelated and interdependent, these countries see every advantage in maintaining an independent judiciary. The Bar should try its best to maintain the independence of the judiciary.
Although Dykes considers the maintenance of the rule of law as the mission of the Bar, he did not cease politicizing the Bar from 2019 to 2020. After introducing some exemptions to water down the extradition law amendment bill in April 2019, the Hong Kong SAR government still faced harsh criticism from the Bar. The Bar dismissed the exemptions to ease the business community’s concerns as a step backward. In August 2020, the Bar criticized the government for postponing the Legislative Council Election originally scheduled for September 2020 by at least a year because of the pandemic. The Bar questioned the legal and evidential basis of the delay.
After the departure of Dykes, the Bar continues to sail into stormy political waters. Paul Harris, the new chairman of the Bar, has recently raised a storm of controversy in Hong Kong. In his inaugural statement, he said he would campaign for changes to the National Security Law for Hong Kong (NSL). An editorial in Ta Kung Pao responded by accusing him of having a political mission to fulfill. When he criticized the NSL, he should not have lost sight of the polarized political situation in Hong Kong and the heightened attempts by Beijing’s strategic competitors to contain China. It would be the utmost folly for us to believe that the concern raised by these Western powers about human rights in Hong Kong after the promulgation of the NSL is the real consideration that has entered into the picture. Even if there is no “human rights concern”, these Western powers will probably still look at the NSL with accusing eyes.
Driving the Bar into the vortex of political polemics locally and internationally will not benefit the Bar. We cannot see a thin streak of light breaking through the self-created darkness that surrounds the politicized Bar. If the Bar and the central government are on opposing political stance, and if their divergent views prevent them from reaching a compromise, it will not benefit the development of Hong Kong.
The Bar can continue to play a leading role in the professional development of barristers. It deserves credit for improving the administration of justice and maintaining discipline among its members. But the above discussion reminds us that we should set up a separate Mainland-Hong Kong Bar Association to harmonize the two legal systems under the principle of “one country, two systems” in order to work for the well-being of Hongkongers. It is a long race ahead, testing the endurance of a horse.
Junius Ho Kwan-yiu is a Legislative Council member and a solicitor. Kacee Ting Wong is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic law Research Center.
The views do not necessarily reflect those of China Daily.
