Upon his election as the new Hong Kong Bar Association Chairman, Paul Harris said in his inaugural statement to the press that he “would campaign for changes” to the Hong Kong National Security Law (NSL), which no doubt is an effective law in combating the crimes and violence perpetuated by anti-government protesters from 2019. He reportedly said that some provisions of the security law “appeared at odds” with the “rights guaranteed under the Basic Law”; that he was “particularly concerned” about provisions of the law that appeared to put some officials “above the law”; and that “it is a difficult time for the rule of law in Hong Kong.”
Let’s look at how the UK Bar Council responded to their national security law. The UK’s older national security law, the Prevention of Terrorism Act 2005, was proved to be ineffective and the UK government scrapped this law and passed a new one — the Terrorism Prevention and Investigation Measures Act 2011 — to allow the government to detain terror suspects without trial and remove their right to seek habeas corpus from court. Doesn’t that put the government above the law? But the UK Bar Council did not issue any statement criticizing or condemning this law! So is the UK Bar Council then not defending the rule of law?
Ironically, despite the fact that the National Security Law promulgated in Hong Kong is none of their business, the UK Bar Council issued a statement condemning it on July 9, 2020. Surely, they are being hypocritical and such hypocrisy is not without reason. It is not difficult to understand why the UK Bar Council opened fire at the security law in effect in Hong Kong: The UK is a staunch member of “Five Eyes”, playing an active role in the anti-China crusade. But why has Paul Harris jumped on the anti-NSL bandwagon?
For after so many years, enough is enough. To prevent future manipulation and exploitation of this platform, the Bar Association should be rendered a truly voluntary association so that barristers who do not agree with the Bar Council’s political stance can continue to practise the profession without the need to join the association, and avoid being effectively hijacked by a Bar Council harboring an anti-government political stance — by virtue of their membership
This has something to do with a long-standing problem pestering the Bar Association: The Bar Council has been playing politics under the mask of a professional body and has gradually churned it into an anti-government platform.
All practising barristers in Hong Kong are required to be a member of the Bar Association in order to be issued with a practising certificate before a barrister can legally practise. It is not a voluntary association but an involuntary one in that a barrister, after being called to the bar in an admission ceremony in the High Court, still has to be a member of the Bar Association to practise.
No doubt many barristers in Hong Kong are not politically pro-establishment and there is nothing wrong with them electing, in a proper manner, a chairman who takes an anti-government stance. Question is what about those who hold different or opposite political positions, and who have no choice but joining the association and having to acquiesce to the stance of the Bar Council? Sure, one can argue that those who hold a different stance may get elected to the Bar Council if they have enough votes. That misses the point. The point is the Bar Association is not a political wrestling ground nor a political party but a professional body.
For after so many years, enough is enough. To prevent future manipulation and exploitation of this platform, the Bar Association should be rendered a truly voluntary association so that barristers who do not agree with the Bar Council’s political stance can continue to practise the profession without the need to join the association, and avoid being effectively hijacked by a Bar Council harboring an anti-government political stance — by virtue of their membership.
The SAR government may consider our proposal to establish a statutory body, akin to the Police Complaints Council’s evolution to the now statutory Independent Police Complaints Council. The proposed Bar Practice and Regulatory Council (BPRC) is to be tasked with (1) issuing annual practising certificates to barristers; (2) monitoring the service provided by barristers; (3) setting standards of conduct for barristers; (4) reviewing complaints against barristers and taking enforcement or other action where appropriate; (5) establishing a formal statutory Barrister Disciplinary Tribunal to deal with disciplinary actions against barristers in place of the informal non-statutory one under the Bar Association now.
The BPRC should consist of a chairman, two vice-chairmen and not fewer than eight other members all appointed by the chief executive. These eight members should be appointed or nominated by legal and quasi-legal institutions that utilise the services of barristers or are connected with the practice of a barrister. That includes a nominee from the Law Society of Hong Kong representing solicitors, a nominee from the Legal Aid Department, an under-5 barrister representing the young and junior Bar, an under-15 barrister representing the senior-junior bar and a senior counsel representing the senior bar; as well as nominees from the Hong Kong Institute of Arbitrators and the Hong Kong Mediation Centre.
If you venture into politics, you have to bear the political consequences. After the en masse resignation of the “pan-democrat” legislators, the SAR government should have no difficulty in securing enough votes in the Legislative Council to pass almost any law it wishes for. Mr. Harris SC, our dear Chairman, whether you will lead the Bar Association to the point of no return, is completely your call.
The author is a barrister and chairman of the Hong Kong Legal Exchange Foundation.
The views do not necessarily reflect those of China Daily.