The Hong Kong Bar Association Has Reached a New Low
The HKBA's statement today ignores its own past assessment that the National Security Law is unlawful
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I haven’t posted much here recently while I work with others on a couple of longer, in-depth investigations on the Hong Kong government—more on these soon, and I hope to return to some short form articles in the coming weeks and months.
In the meantime, I want to share a brief follow-up to this article that I wrote in May about the Hong Kong Bar Association’s transformation since Victor Dawes became its chair from a respected voice on the law into…well, not that. Yesterday, the HKBA released a new statement commenting on the Hong Kong government’s decision (almost certainly on Beijing’s instruction) to “request” authorization from Beijing to simply disregard a Hong Kong Court of Final Appeal ruling. In that ruling, the Court (in a correct ruling, but one nonetheless in line with its typical spineless approach of avoiding actually ruling on anything controversial) refused to hear an appeal from the government seeking to bar Jimmy Lai from hiring a foreign lawyer, instead dismissing the appeal on technical grounds. The Court’s order leaves a lower court ruling in favor of Lai intact. Now, Beijing is virtually certain to declare formally that the ruling should be disregarded.
The government’s contempt for judicial independence isn’t surprising, but the Hong Kong Bar Association’s statement today on the matter is a sad new low point for the organization:
In the statement, the HKBA declared that Beijing, via the National People’s Congress, has absolute authority to overrule Hong Kong’s formerly independent judiciary on its NSL rulings. In criminal cases, governments are a party to the litigation—hence the case name “HKSAR v. Defendant”—not arbiters. What the HKBA is saying here is that it has no problem with a party to a case—or to put it charitably, an affiliate of a party to a case—having the final say in whether court rulings should be respected. In doing so, the HKBA is betraying the entire Defense Bar that is purports to represent.
Think of where this will inevitably lead: Let’s say a court acquits (correctly) Benny Tai or one of the other so-called “ringleaders” of the Hong Kong 47. Pro-Beijing media would be relentless in its attacks on the defendants, their lawyers, and the judges who issued the decision. Beijing can then simply have the NPCSC “reinterpret” the law and disregard the ruling, sending the innocent defendant back to prison. Of course, given the Hong Kong Judiciary’s track record in recent years, the more likely result is that even more judges will bend over backwards to convict innocent political defendants on baseless evidence, just to avoid finding themselves in Beijing’s firing line.
And according to the HKBA, this is fine.
Compare the HKBA’s statement today to its statement in May 2020, when the National Security Law was on the cusp of passage. Then, the HKBA stated the obvious point that the NSL is illegal under the terms Beijing had agreed with respect to Hong Kong’s autonomy:
In two short years, the Hong Kong Bar Association has gone from “The NPCSC has no power to add the HK National Security Law under Annex III of the Basic Law” to “The NPCSC is entitled to exercise such power in circumstances that it sees fit.”
And to what lawyer do we owe this spineless abandonment of duty and principle?
This freakin’ guy:
Sad but true. John Austin would be right on the definition of law here in HK.
Thanks for your work.