Alistair Carmichael of the UK’s Liberal Democratic Party (LDP) tabled a Bill late last year to grant all Hong Kong citizens the right of abode and a pathway to UK citizenship, citing the promulgation of the National Security Law for implementation in Hong Kong last June.
The move is blatant interference in China’s internal affairs and in violation of the 1984 Sino-British Joint Declaration. Under the Chinese Memorandum attached to the Joint Declaration, China regards holders of British Dependent Territories Citizens (BDTC) passports who are of Chinese descent as Chinese citizens. The BDTC passports were later converted into the BN(O) passports. The coming up with such a bill is obviously a grandstanding stunt by a marginalized political party to earn some political brownie points among its supporters. There is no greater nonsense than the suggestion that British politicians would prioritize the interests of Hong Kong people over those of Britain. Whatsoever, the hostility the LDP demonstrated toward China and its Hong Kong SAR has cast doubt on Paul Harris’s suitability for the chairmanship of the Hong Kong Bar Association, given his links with the LDP, especially after he himself also demonstrated a hostile stance toward the NSL.
In February, many public figures and commentators in Hong Kong asked Harris to resign after British media reported that he was a staunch Liberal Democrat and had only stepped down as an elected councilor of the Oxford City Council just before becoming the chairman of the Hong Kong Bar Association. Harris made no disclosure of his political affiliation beforehand. This has compromised his credibility to the detriment of the Bar Association. Therefore, we urge him to resign. Apart from the need to pay adequate attention to the risk posed to national security by Harris’s external political links, we should not overlook or, at least, fail to give appropriate weight to the important role played by the chairman of the Bar Association in influencing the government and the Judiciary.
It is worthy of note that the Bar Association often makes statements, usually through the chairman, on matters affecting the Bar Association and those affecting the framework of Hong Kong law. Harris’s stance on the NSL reminds us that he may make use of the Bar Association as a convenient platform to express his own political views under the guise of legal professionalism. Not to be neglected is the great influence of the Bar Association on Hong Kong’s barristers. The Bar Council has laid down its requirements for local admission to the Bar. After admission, all practicing barristers in the city are required to become members of the Bar. The Bar Council also ensures that its members comply with the Bar Code.
Apart from the need to pay adequate attention to the risk posed to national security by (Paul) Harris’s external political links, we should not overlook or, at least, fail to give appropriate weight to the important role played by the chairman of the Bar Association in influencing the government and the Judiciary
The important role played by the chairman of the Bar Association in the Judicial Officers Recommendation Commission (JORC) should also be kept in the forefront of our attention. The JORC consists of the Chief Executive, the Secretary for Justice, and seven members appointed by the Chief Executive, including two judges, one barrister, one solicitor and three laypersons. The Chief Executive is obliged to consult the Bar Association and the Law Society of Hong Kong on the appointment of a barrister and a solicitor to the JORC. In practice so far, the Chief Executive has always accepted the two organizations’ recommendations.
The convention is that the serving chairman of the Bar Association is always appointed as a member of the JORC. Although former Bar chairman Philip Dykes remains a member until July 2022, Harris has a good chance to become an appointed member of the JORC because the serving chairman of the Bar has a very high chance to serve a second term. Since all matters of judicial appointments and extension of appointments are within the purview of the JORC, the big unknown is whether Harris will be appointed as a member of the JORC in July 2022. If he becomes a member, once again his stance on the NSL reminds us that he may make use of the JORC as a convenient platform to express his own political views under the guise of JORC membership. What is more in doubt is whether the existing veto mechanism in the JORC will be abused by members with a personal political agenda. It is worthy of note that the JORC cannot pass a resolution if there are more than two dissenting voices.
Whether, or to what extent, Harris’s external political ties have infringed the red line laid down by Article 29 of the NSL is also a big question hanging over the Bar. Under Article 29 of the NSL, no one shall collude with external forces to endanger national security. According to Tsinghua University law professor Wang Zhenmin and other mainland legal scholars, the term “external force” should be broadly defined. Unofficial organizations shall be included (Wang Zhenmin, et al., A Handbook on the National Security Law of the Special Administrative Region of Hong Kong [in Chinese] (HK: Joint Publishing (HK) Co. Ltd., 2021), p.134-135). Finally, Harris’s sympathy and support for the Tibet separatist movement should also draw the Bar’s attention. Wang Zhenmin and other mainland law academics have pointed out that advocating secession shall attract criminal liability (Ibid,p.122-123).
To conclude, the most compelling argument in favor of Harris’s resignation from the Bar chairmanship is that his links with external political organizations and his stance on Tibet may attract the attention of the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region. In particular, the LDP’s recent proposal on the BN(O) scheme is intended to vilify China and sabotage Hong Kong’s stability. The above-mentioned risks, together with the influence of the chairman of the Bar Association on the government, particularly the Judiciary, add urgency for the Bar Association to keep a safe distance from Harris. Harris’s resignation would probably save the Bar from being included in the watch list of the Office for Safeguarding National Security. We are sure that no legal practitioners want the Bar to be under the suspicious gaze of the Office for Safeguarding National Security. For the sake of the Bar Association, Harris should quit if he still values decency.
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.
