What's Going On with the Hong Kong Bar Association?
Chairman Victor Dawes promised to keep the Bar Association apolitical, but he's doing the opposite.
My Hong Kong activism and writing are supported by optional subscriptions from readers. Please consider becoming a paid subscriber to help fund my work. Thanks for your support.
When Victor Dawes took over as Chairman of the Hong Kong Bar Association in January, he told the media that “political topics [are] not something the Bar Association should handle or discuss.” Earlier this week in an interview with the South China Morning Post, Dawes once again “vowed to stay away from politics.”
In both instances, Dawes’ implication was that his approach would be less political than the approaches of the two previous chairmen, Paul Harris and Philip Dykes. Harris and Dykes led the Bar Association through Hong Kong’s protests and subsequent government crackdown, and frequently released statements on legal and constitutional issues.
But in truth, it was during the Harris and Dykes administrations that the Bar Association steadfastly avoided taking sides in political disputes, focusing instead on legal and constitutional issues irrespective of political viewpoint. Dawes, in contrast, has taken the Bar Association down a worrisome path in which the Association is using increasingly aggressive political language to support the Government’s priorities, while remaining silent on issues of traditional concern to the legal community.
Defenders of the Law: The Bar Association During the 2019-2020 Unrest
During the 2019 protests, Philip Dykes was the chairman of the Bar Association. At the time, the Association was well-known for releasing statements pertaining to issues of law and rights. In the second half of 2019, HKBA released statements on a wide range of legal and constitutional matters, sometimes critical of the Government and sometimes critical of protesters. To highlight a few of the these statements:
On June 6, 2019, HKBA expressed concern about the legal effect of the Extradition Bill proposed by the government, which soon spawned massive protests.
On June 13, 2019, HKBA condemned acts of violence on both sides during the June 12, 2019 Tamar protests, and expressed concern about videos showing police officers using excessive force.
On July 5, 2019, HKBA called for an independent inquiry to look into the violent incidents of June 12 and July 1 at the Legislative Council Complex, and to determine who broke the law on both sides.
On July 24, 2019, HKBA condemned the July 21, 2019 attacks by pro-government forces on passengers at Yuen Long MTR Station, and raised concerns about the failure of the Police to respond to the incident in a timely fashion.
On September 2, 2019, HKBA condemned protesters who had violated a court injunction by protesting in Hong Kong International Airport and the MTR.
On September 3, 2019, HKBA expressed concern about various recorded instances of police violating the Police General Orders during the protests, including the August 31 police assault on passengers at Prince Edward MTR Station.
In September 2019, HKBA condemned members of the public—presumably protest supporters—who it said had verbally abused a government lawyer prosecuting a protester.
In separate November and December 2019 statements, HKBA condemned acts of arson and vandalism at the Court of Final Appeal, High Court, and Shatin Law Courts, presumably by protest supporters.
In 2020, as Beijing and its agents in Hong Kong began their clampdown on civil liberties, frequently disregarding the Basic Law and Bill of Rights in the process, the Bar Association continued to expressed legal views in a measured fashion:
On April 20, 2020, after Beijing’s Hong Kong Liaison Office appeared to be taking charge of various anti-protest and national security matters from the Hong Kong Government, HKBA released a statement reminding Beijing and the public that Article 22 of the Basic Law prohibits Beijing’s interference in Hong Kong’s affairs.
On May 25, 2020, HKBA released a statement pointing out the illegality of Beijing’s proposed National Security Law under Article 18 and other provisions of the Basic Law.
On June 19 and 23, 2020, HKBA released two statements expressing “deep concern” and “worry” about several reported aspects of the secretive proposed National Security Law.
On July 1, 2020, after the NSL was imposed on Hong Kong overnight, HKBA expressed “grave concern with both the contents of the NSL and the manner of its introduction.”
On August 2, 2020, HKBA again expressed “grave concern” about Beijing’s unconstitutional activity in Hong Kong, this time after the government delayed the Legislative Council election for a full year.
Throughout 2019 and 2020, the Bar Association, as the foremost professional legal association in the city, was focused on preserving rule of law and the integrity of the justice system. Irrespective of whether one agreed with their positions, every single press release in this period plainly addressed legal concerns, rather than advancing the interests of one political side.
Yet, this wasn’t good enough for Beijing or the Hong Kong Government. In January 2021, Paul Harris was elected Chair of the Bar Association. In a statement at the time, Harris pledged to encourage the government “to agree to some modifications” to the national security law. In response to this modest statement, Chinese Government proxies piled on with threats and histrionic abuse. Beijing’s liaison office in Hong Kong attacked Harris for ignoring the “unquestionable and sacred power” of the National People’s Congress, and charged that he had “blatantly challenged the city’s constitutional order.” The State Council’s Hong Kong and Macau Office also accused Harris of “using his British nationality to collude with foreign forces in interfering with Hong Kong affairs”—a potential imprisonable violation under the NSL.
Dawes Turns the Bar Association Towards Beijing
In January of this year, with most potential candidates scared off by Beijing’s unreasonable and harsh treatment of Harris, Victor Dawes was elected unopposed as Chairman. He was the only senior barrister willing to take on the role.
Dawes is known among Hong Kong lawyers as a bit of a chameleon, which could have been suitable for the leadership of a lawyers’ organization under threat from authoritarians with little regard for law or lawyers. Chameleons are often seen as unprincipled, but they are survivors. Many barristers of all political stripes recognized the potential benefits of such a leader during these difficult times, with pro-Democracy veterans Margaret Ng and Martin Lee, as well as both preceding Chairmen Harris and Dykes, expressing support for Dawes after his election.
Thus, all might have been forgiven if Dawes stuck to his word and avoided politics in order to steer the Bar Association through choppy waters. But instead, he is increasingly using the Bar Association as a tool to promote Beijing and Hong Kong Government positions, while ignoring matters like unjustified arrests and judicial misconduct that should be of concern to the city’s barristers.
Since Dawes’ election, the Association has released only four statements—a similar rate to the eight issued in all of 2021 under Harris, but far fewer than the 20 issued in 2020 and 19 issued in 2019. In previous years, as I’ve recapped above, HKBA statements expressed concern about threats to rule of law from all political corners. Yet all four statements under Dawes support the Government’s position—three parroting the government’s stance on judicial independence and integrity, and one endorsing the Government’s rejection of HKBA’s appointment of a qualified senior counsel to the Judicial Officers Recommendation Commission. And each successive statement departs further from the measured legal language typical of Bar Association statements in favor of sweeping, unsupported political claims.
HKBA’s Statement on JORC Appointment
The Judicial Officers Recommendation Commission, or JORC, is an important government body that, in accordance with Article 88 of the Basic Law, has exclusive right to recommend judge and magistrate appointments. The Bar Association appoints one of its members. After former Association chairman Dykes resigned from JORC in August 2021, the Association nominated Neville Sarony as his replacement. Though Sarony, a Senior Counsel, was plainly qualified for the post, the Chief Executive rejected the nomination and only agreed to move forward when Dawes was named as a replacement. This rejection of a Bar Association nominee was unprecedented. The Chief Executive gave no explanation as to why Sarony was not acceptable, but it is notable that both Sarony and the Bar Association Chairman at the time, Paul Harris, were non-Chinese, and both were attacked as “foreigners” in state media.
As a legal industry group, this would have been a natural time for the Bar Association to publicly defend its choice of Sarony and express concern at the unprecedented, unexplained refusal of the Chief Executive to accept a qualified Bar Association nominee. But on March 25, The Association released a statement “welcoming” the Chief Executive’s appointment of Dawes to the JORC. The statement characterized the Chief Executive’s rejection of Sarony as merely an “invitation…to make another recommendation for consideration.” The statement offered no defense whatsoever of Sarony, leaving his defamation by the Administration and state media to stand uncontested.
HKBA’s Statements on the Judiciary
In two statements on 30 March and 2 April, the Bar Association expressed “regret” at the resignation of two UK foreign judges from the Court of Final Appeal, and “welcomed” statements by nine other foreign judges that they would remain on the Court. In principle, there’s nothing unusual about this position. Yet what’s strange about these statements is that they focus little on the resignations, and instead seem to have been issued primarily as a means for the Bar Association to declare, without evidence, that the judiciary remains independent and is operating with integrity—a key priority of recent Hong Kong government and state media propaganda.
In the 30 March statement, the Bar Association wrote that the experience of lawyers and judges in Hong Kong “is consistent with a strong and independent judiciary and the rule of law being well.” And the 2 April letter highlighted a declaration by five foreign judges that they were “entirely satisfied of the independence and integrity which [their] colleagues on the CFA bring to [maintaining the rule of law and reviewing the acts of the executive].”
For the record: As I have covered at length in this newsletter, there is good reason to believe the proper functioning of the judiciary is under threat and warrants grave concern. As a senior counsel, Dawes knows this better than most.
Then, last week, the Bar Association released a statement about proposed US sanctions that was truly off the rails. Seven US members of Congress—out of 535 total—have proposed sanctioning Hong Kong national security judges in a letter to the US President. Members of Congress issue public letters like this often, and they are usually intended only as lip service to help win votes from particular groups of constituents. They are not US policy, or anything close to it.
Despite this, the Bar Association took the opportunity to abandon years of cautious, lawyerly statements designed to maintain trust in the Bar Association and Hong Kong’s barristers. The Association wrote that it “deplores and condemns in the strongest terms any attempts by anyone, anywhere, to interfere with the operation” of the judiciary. “There can be no question,” the statement continued, “on the integrity and independence of Hong Kong judges, whose selection, appointment and discharge of their constitutional role and duties are free from any political considerations and interference.”
There can be no question? Tell that to the millions in Hong Kong and across the world who very much doubt the judiciary’s continued integrity.
Championing the government while refusing to criticize it
Of course, one does not have to always agree with the Bar Association’s position to respect their duty to offer an opinion on rule of law issues. But there are two things that make the Association’s recent activity concerning.
First, the language used is sloppy and political, not lawyerly. Previous Bar Association statements follow a familiar legal pattern: measured and cautious claims, followed by evidence to back them up. But the recent statements are neither measured nor backed up by evidence. Angry, absolutist statements about foreign interference and the integrity of entire categories of officials are more commonly found in “wolf warrior” screeds from Chinese Government spokespeople or state media, not a trusted and admired association of lawyers.
Second, while parroting Government talking points, the Bar Association has remained silent on numerous abuses of law by the Government—blatant cherry-picking. Here is just a sampling of legal and constitutional abuses that Dawes’ Bar Association has chosen not to comment on:
In March of this year, former HKBA Chairman Harris was called to a meeting with the national security police, where he was reportedly “warned” that he may have breached the NSL and told to leave Hong Kong. He was on a plane hours later, likely never to return. There are few issues of more concern to the Bar Association, and more worthy of a condemnation, than the unjustified detention and harassment of its former Chairman. Yet, the Bar Association made no comment.
On the same day that the Bar Association commented on the sanctions letter from seven US Congressmen, an esteemed member of the Association, Margaret Ng, was arrested for taking part in an organization to help poor political defendants pay their legal bills. The Bar Association had nothing to say about the political arrest of their member, despite releasing a letter in 2019 lauding the International Bar Association’s decision to give Ng and Martin Lee an award for their “tireless dedication to the protection of human rights and the pursuit of justice.”
Last month, two court spectators were arrested, charged with sedition, and imprisoned without trial for allegedly clapping in court in response to a speech by another defendant. Despite the arrests reaching well beyond any fair reading of the sedition law, and despite the incident’s relevance to the proper functioning of the courts—an issue on which Dawes’ Bar Association has made previous comments—the Bar Association made no statement.
The Association had no comment on the constitutional problems with the farcical “election” of policeman John Lee as the city’s Chief Executive, in which Beijing undermined the one-country-two-systems constitutional system by refusing to allow even any pro-authoritarian competitors, much less any pro-democracy ones.
Numerous unjustified political arrests, convictions and imprisonments of Hongkongers including journalists, radio presenters, and a cardinal in the Catholic Church have elicited no comment from the Bar Association.
Yet, Dawes’ HKBA found the time to rail against an obscure letter by seven US Congressmen of little note.
If the Bar Association won’t speak out on government abuses of law, it shouldn’t speak out at all
The HKBA is an old institution, long admired for its credibility and independence. But in recent years we have seen many established institutions co-opted by Beijing’s political machine, and I fear the Bar Association is heading in the same direction.
My issue is not with Dawes’ vow to remain apolitical. Rather, it is that he has not stuck to that vow. Like many others in the pro-authoritarian establishment, he and his Bar Association now appear to classify pro-Government positions as apolitical while any criticism of government actions is too political to touch.
After what Beijing’s agents did to Paul Harris, it is understandable that the Bar Association would want to avoid angering Beijing. But it is better for the Association to remain silent entirely than to allow itself to be co-opted as a political tool of lawless authoritarians.
Thanks indeed for your effort!
I sigh too but well, maybe Dawes decided that the best way to retain some substantive independence, protect its members and functionality is to mouth some pro-Beijing slogans. We do live in tough times.
It may also be an overcorrection in response to Beijing's previous temper tantrums. To give Beijing its legitimate due, from its point of view, the Common Law trained lawyers of the HKBA don't have a good (or perhaps even basic) understanding of the Continental Law system in general, let alone China's. Thus they are not arguing from a position of technical expertise. Yet their Unexpert statements are going to be treated like gospel by the rest of the world, and even to criticize or correct them will only bring more blowback from "the West".
As an example, it's not hard to see the error in Harris' statement. First, as far as Beijing is concerned, the NSL Is Fine. It strikes an appropriate balance between the Individual and the State (they insist), at least for Hong Kong's present and near future conditions. But this one wasn't the primary problem. It received to my memory a more moderate reception, with a Chinese commentator basically saying "It won't happen in the near future" but without furore.
Second, more clear-cut and importantly from a legal viewpoint, Harris' statement reads like he thinks the Hong Kong government can just amend the National Security Law on *its* initiative. That crossed the line.Even if the Hong Kong Government is convinced the NSL is wrong, even if it is *objectively* wrong, the HKSAR has no right to amend a law passed by the National People's Congress, a superordinate body. This is beyond Common vs Continental Law, this is a failure to acknowledge universal rules of hierarchy, of superordination and subordination. That's why it is a "blatant challenge" to the Constitutional Order, and why it cannot be justified as a statement made from a technical-expert's viewpoint (because its content is so Unexpert).
Yet, we all know what would (and did) happen. Harris' statement is treated as gospel. Any attempt to counter it is treated as oppression. Both become part of the evidentiary stack supporting any new waves of criticisms or even sanctions.
=
Re Article 22, a Beijing reader would probably first note how Hong Kong is "under the Central People's Government" has been cleanly excised from the HKBA's description of Article 12. Next, Article 22 is claimed "to prohibit interference in the internal affairs of the HKSAR by any part of the CPG", which if true will kind of defeat the "under the Central People's Government" part in Article 12.
As written out, Article 22 says "No department", not "No part". So, the CPG proper (State Council), a group of maybe ten elite men running all of China, may interfere, whether Hong Kong likes it or not. The question becomes a non-department that's not the CPG proper can have the right to interfere, and if so, whether the LOCPG is a "non-department".
The Beijing reader will argue that the LOCPG is indeed NOT a department in Chinese law, because it differs from a department in important respects. It has no right to issue administrative regulations. It is not an administrative subject - a subject being an entity being able to bear responsibility. In essence, it is a much weaker organization, with correspondingly looser personnel rules (department heads are decided by NPC, while these "non-departments" can be decided by the State Council). There are a number of other different offices serving the State Council, governed by extant, non-HK specific rules - the LOCPG is just an application of these rules.
Reference:
https://news.mingpao.com/pns/%e8%a7%80%e9%bb%9e/article/20200422/s00012/1587495064787/%e6%9d%8e%e6%b5%a9%e7%84%b6-%e7%90%86%e8%a7%a3%e4%b8%ad%e5%9c%8b%e8%a1%8c%e6%94%bf%e6%9e%b6%e6%a7%8b-%e5%85%a9%e8%be%a6%e9%9d%9e%e3%80%8c%e9%83%a8%e9%96%80%e3%80%8d
which is IMO, the best defense they managed to make for that entire affair to my mind. At least it makes sense and it passes the "Doesn't smell like you invented this two days ago" test. You can still argue against it. You can say increasing the list of possible interferers from 10 to 300 would have the consequence of greatly increasing the amount of possible or probable interference to a level well in excess of the legislator's initial estimate. But it raises the score from Invalid to Colorable, and when viewed from a legal frame that has centralized control as a starting point (Unity state and all that) and isn't as worried about top-level over-reach, it may even be a winning argument.
So, from Beijing's POV, the HKBA's view is not legally correct and made from a position of non-expertise. They either are ignorant or in contempt of how Chinese law defines a "department" (which would probably be considered basics to a professional in Chinese law) - it's not even considered in the document! Yet again, it is their narrative that dominates and is used as a basis for the West's punitive actions.
=
That must have seemed rather political. There's no need to agree with them on every issue to acknowledge that these things have happened.