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Tuesday, January 25, 2022, 00:02
Hong Kong Bar Association: Restoring credibility and rebuilding trust
By Grenville Cross
Tuesday, January 25, 2022, 00:02 By Grenville Cross

On Jan 20, Victor Dawes SC replaced Paul Harris SC as the chairman of the Hong Kong Bar Association, and his priority must be to restore its credibility. Over the last four years, during which Philip Dykes SC was chairman for three years and Harris for one, the HKBA became highly politicized, and lost its way. It was shunned by legal bodies on the Chinese mainland and kept at arm’s length by the authorities at home, an inevitable consequence of behaving like a Civic Party offshoot. 

In 2019, the HKBA delighted anti-China elements in various ways, but principally by opposing the government’s fugitive surrender proposals, by criticizing the police force at every opportunity, and by its hostility toward the central authorities. Of course, it sought to maintain a veneer of objectivity, by, for example, condemning the protest movement’s attacks on the legislature, the courts and the railways, but its responses were mechanical and half-hearted, disappointing many of its own members. 

Although the HKBA has let itself down very badly in recent times, the situation is hopefully not terminal. If Dawes and his team can restore its credibility, this will be good not only for barristers and the wider legal world, but also for Hong Kong

On Oct 12, 2019, the HKBA’s deputy chairman, Edwin Choy Wai-bond, decided enough was enough, and resigned. He deplored its failure, under Dykes, to sufficiently condemn the violence of the protesters, and who can blame him. He pointed out that many of them 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 even disclosed 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”, and this was not all. 

Choy reportedly felt that the HKBA was not respecting the wishes of its approximately 1,500 members, and regretted the harm caused to its once cordial relations with mainland legal bodies. Indeed, while contacts with Beijing died a death under Dykes, he eagerly cultivated legal links elsewhere, particularly in the United States, even reaching out to the American Bar Association as national security legislation was being formulated in 2020. 

However, Choy’s wake-up call went unheeded. Once Dykes departed in 2021, in a blaze of publicity generated by his incendiary denunciation of the National Security Law for Hong Kong, things went from bad to worse. The HKBA, having apparently learnt nothing, replaced him with a foreign politician from an anti-China political party.

On Jan 20, 2021, Paul Harris became the HKBA’s new chairman, having been proposed (no surprises there) by Martin Lee Chu-ming SC and Lawrence Lok Ying-kam SC. He had, hitherto, been best known for establishing, and then chairing, Hong Kong Human Rights Monitor, which made no secret of receiving funding from America’s National Endowment for Democracy, itself largely funded by the US Department of State. Under the guise of human rights advocacy, Human Rights Monitor was a visceral critic of both the local and central governments.

Shortly before his election, Harris, on Jan 5, 2021, resigned his office as an elected city councilor in Oxford, England, where he had for three years represented the UK Liberal Democrats. He made it clear, however, that he had no intention of resigning from the party itself, to which he had belonged for many years. Given that the Liberal Democrats are committed to an anti-China agenda, having opposed the National Security Law, sought the imposition of targeted sanctions on Hong Kong officials, and advocated a British boycott of the 2022 Beijing Olympics, it beggared belief that anybody in the HKBA could have thought he was in any way suitable to assume the chairmanship. After all, the HKBA is supposed to be a politically neutral and professional organization, and the concerns that many felt over his election were immediately realized.

At his first media briefing, Harris, sounding for all the world like a Civic Party stooge, opened fire on the National Security Law, declaring that he would be seeking to have it modified. He was “particularly concerned” over the provisions which, first, confer exemptions on personnel of the Office for Safeguarding National Security, and, second, allow criminal suspects, in exceptional circumstances, to be tried elsewhere, and, third, enable three judges to try a national security case in lieu of a jury in some situations, as where jurors might face danger. 

Harris then savaged the police force, declaring that it was “fairly obvious” that the arrests of 53 national security suspects on Jan 6, 2021 were an abuse of the law, and a “deliberate intimidation of the democratic movement”. This, of course, was highly irresponsible, as he had not seen the evidence in the hands of the authorities, although it played very well with anti-government elements, both locally and abroad. Many people, however, recoiled in horror, realizing that, despite Dykes’ departure, there would be no improvement in the HKBA’s fortunes. 

In an attempt at damage limitation, the HKBA, within days of Harris’ remarks, tried desperately to restore public confidence. It publicly distanced itself from its own chairman, which, insiders noted, was unprecedented. Despite Harris’ antics, and those of Dykes before him, the HKBA declared that it was “not a political organization”, but nobody was fooled. It even claimed that Harris’ remarks were made in “his personal capacity”, which was also unconvincing, given that the only reason he had been interviewed at all was because of his chairmanship. 

From that point on, Harris’ leadership was dead in the water. He was condemned on all sides, and this left him wholly unable to influence events. This, inevitably, impacted upon the HKBA, which was increasingly viewed as a busted flush, irrelevant and untrustworthy. However, all was not lost, and, just as the HKBA imploded, so the Hong Kong Law Society stepped up to the plate. 

Under its previous and current presidents, Melissa Pang Wan-hei and Chan Chak-ming, the Law Society demonstrated that it was more than capable of filling the vacuum resulting from the HKBA’s shenanigans. Indeed, the Law Society has, in many ways, become the authentic voice of the legal profession, advocating legal standards while eschewing political activism. Quite clearly, this reflected well on the leadership qualities of both Pang and Chan, who more than rose to the exigencies of the situation.

There are, however, now signs that the HKBA membership has decided to get a grip on things, realizing that, if things are not sorted out, it will be forever marginalized. Harris, therefore, has now departed, after just one term, which is unusual, and this provides it with fresh hope. Wiser heads have apparently prevailed, although it will inevitably take time to rectify the disastrous legacy of the Dykes-Harris era. Any organization is only as good as those who run it, and the emergence of a new type of apolitical leader now suggests that the HKBA is getting back to basics. If so, it may be possible to restore confidence, and for the HKBA to again become a positive force in legal circles.

A new HKBA chairman, Victor Dawes SC, a commercial law specialist, was elected on Jan 20. He immediately distanced himself from the past, saying that upholding the rule of law would be his priority, and this was “not a political concept”. He added that “for political topics, that is not something the Bar Association should handle or discuss”, which will have been music to the ears of many of his members. He rejected any talk of the rule of law being “dead”, insisting instead that it must be preserved as “this is what gives Hong Kong our strength”.

Dawes said the HKBA would “actively participate” in the consultation exercise over the forthcoming national security legislation, as contemplated by the Basic Law (Art.23), but refused to follow the Dykes-Harris axis in condemning the National Security Law. Instead, he pointed out that it was still “early days” for the new law, and that the courts should be given time to consider and interpret its provisions. In other words, he had no time for any of the political grandstanding or rabble-rousing so beloved of Dykes, Harris and the Civic Party.

Although, until Dykes came along, there were friendly exchanges between the HKBA and mainland legal bodies, including an annual visit to Beijing, these have all long since dried up. However, Dawes says he wants to reverse this, and to improve opportunities for his members, both in the mainland and overseas. This clearly smacks of bridge-building, which should be welcomed by everyone who believes that the HKBA needs to be taken seriously again. 

Once, however, trust has been lost, it is not easy to restore, but a change of direction is nonetheless vital. From what he has said, it appears that Dawes, supported by his two new vice-chairmen, Derek Chan Ching-lung SC, a criminal law practitioner, and Jose-Antonio Maurellet SC, who specializes in commercial law, is determined to sort things out. He must, however, expect a backlash from those responsible for the problems of the past, who are still lurking in the background, and he must stand firm. Indeed, Dykes has already warned him that he should “not compromise” on “matters of principle”, and the capacity of the Dykes-Harris camp for troublemaking should not be underestimated. After all, it includes the likes of Martin Lee and assorted Civic Party provocateurs, who still regard the HKBA as being within their sphere of influence.

Although the HKBA has let itself down very badly in recent times, the situation is hopefully not terminal. If Dawes and his team can restore its credibility, this will be good not only for barristers and the wider legal world, but also for Hong Kong. People of goodwill, therefore, should wish them well.

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

The views do not necessarily reflect those of China Daily.

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