Whenever a professional body loses its way, there are consequences. If it dabbles in matters beyond its remit or otherwise behaves irresponsibly, it forfeits its credibility. Its influence then diminishes, along with its capacity to promote its members’ interests.
The temptation for professional bodies to diverge from their avowed missions became acute in recent times, often due to infiltration by radical elements. They sought to politicize established organizations, and then use them to advance their own agendas. Although this imperiled the interests of the membership, they saw this as a price worth paying. As political groupings like the Civic Party either self-destructed or entered a terminal decline, some professional bodies have sought to fill the vacuum, with unfortunate results.
After, for example, the Professional Teachers’ Union was founded 48 years ago, it was able to play a positive role for many years. Its members represented the Legislative Council’s educational functional constituency, and it was able to resolve disputes, assist teachers, and work constructively with the authorities. This started changing, however, in 2012, when it opposed the much-needed proposals for moral and patriotic education in the schools, thus placing itself on a slippery slope.
In 2014, the PTU, increasingly radicalized, called for a teachers’ strike, because of police enforcement action against student demonstrators during “Occupy Central”. It followed this up in 2019 with calls for class strikes, and even organized a rally to mobilize opposition to the fugitive surrender bill. In January, it challenged the Education Bureau’s decision to revoke or suspend the licenses of teachers arrested during the protests, presumably imagining they were above the law. It should, therefore, have surprised nobody that the Education Bureau finally decided that enough was enough, and that it could no longer deal with an entity that wished to dabble in political activism at the expense of its professional values.
This phenomenon, regrettably, is not confined to the PTU, as the Hong Kong Bar Association has shown. In recent years, clearly influenced by its Civic Party members, it has become more of a political campaign group than a professional body. Nothing illustrated this more vividly than its mealy-mouthed pronouncements during the insurrection in 2019, when its sympathies increasingly lay not with those defending the city, but with those who had declared war on society. Indeed, the situation deteriorated to the point that its deputy chairman, Edwin Choy Wai-bond, felt he had no choice but to resign, citing the association’s failure to condemn the protesters’ violence. He disclosed that most people on its governing council were “reticent to state, with unequivocal clarity, that both the rioters and those who proffer excuses on their behalf should be condemned”, which was a shocking expose of a body supposedly committed to the rule of law.
As if this was not bad enough, the HKBA chairman, Philip Dykes, on May 25, 2020, wrote to the American Bar Association, and other overseas legal bodies, to let them know of the bar’s “deep misgivings” over the proposed security law, and he urged them to “keep an eye on things”. Although the ABA, on June 2, told Dykes that it “stands with you”, he was clearly naive if he imagined that foreign entities could exert any influence on legal developments in China. But, even after the security law had been enacted by the National People’s Congress Standing Committee on June 30, 2020, the HKBA persevered in its politicking, and declared that it was “greatly concerned with the contents of the National Security Law and the manner of its implementation”. By this time, political activism had become its forte, and events in January 2021 underscored the point.
When Dykes, as the HKBA’s outgoing chairman, gave a valedictory interview on Jan 20, he might have been expected to discuss what, if anything, he had achieved in his three-year tenure. After all, the incumbent’s portfolio includes such things as advancing barristers’ interests, promoting work opportunities, influencing government and forging constructive ties with Chinese mainland agencies, yet on these he was strangely silent. Instead, he chose to indulge in some highly inappropriate slurs, apparently intended to gratify the foreign lawyers he had previously courted. Once again, the National Security Law for Hong Kong was in his sights, and he alleged it had “diluted judicial independence”. He added that there was no longer a “totally independent judiciary”, which, although contradicted by the judges themselves, will have delighted those seeking to diminish Hong Kong, including China’s geopolitical rivals.
The upshot of this, therefore, was that Dykes’ legacy to his successor was a poisoned chalice, a highly politicized HKBA that was no longer fit for purpose. There were, however, still hopes that a barrister of real stature might yet emerge, and put the association back on track. This, alas, was not to be, and the situation simply got worse.
On Jan 21, when the HKBA appointed its new chairman, it chose a foreign politician, Paul Harris, who had, until Jan 5, been an elected city councilor in England, representing the anti-China Liberal Democrats party. At a media briefing, Harris, instead of explaining his plans for the profession, announced that parts of the National Security Law were “profoundly offensive”, and that he would be seeking “modifications”. He followed this up with an intemperate attack on the police force, claiming, without having seen the evidence, that the arrest of 53 suspects for endangering national security was an abuse of the law, and a “deliberate intimidation of the democratic movement”.
The Dykes-Harris axis, egged on by the Civic Party and its allies, has caused huge damage to the association, which can no longer be taken seriously
Quite clearly, Harris’ utterances were those of a political hack, not a bar chairman, and they represented a new low for the HKBA. They gave the impression that he was prepared to use his new position to further the political agenda of the UK Liberal Democrats, which had earlier condemned the National Security Law, and of which he was still a member. In a subsequent message to his membership, Harris threw oil on the fire by declaring that the security law was “not consistent with the rule of law”. Although, in a desperate attempt at damage limitation, the HKBA, on Feb 3, declared that it was “not a political organization”, and that Harris’ remarks were given in a “personal capacity”, it was too late. The Dykes-Harris axis, egged on by the Civic Party and its allies, has caused huge damage to the association, which can no longer be taken seriously.
By contrast, the Law Society has, not without difficulty, avoided any similar pitfalls, and remained true to its professional status. Despite attempts to politicize its processes and undermine its credentials, it has adhered to its core objectives and kept its eye on the ball. Its functions include regulating the professional conduct of solicitors, trainees and foreign lawyers, establishing and enforcing high standards of practice, and offering “its views from time to time on legal issues that are of public concern and promote Hong Kong’s legal services locally and internationally”. Had the society followed the HKBA’s example, its ability to influence events and promote members’ interests would also have been lost, but wise leadership, coupled with a responsible membership, has saved the day.
On Aug 24, in the elections for the Law Society’s governing council, five seats were up for grabs. They were contested by a so-called “professional” camp of five candidates, a “liberal” camp of four candidates, and two “centrists”, reportedly sympathetic to the liberals. The “professional” candidates warned the membership of the negative consequences of the society losing its self-regulatory powers by becoming too politicized, and of the setbacks solicitors could confront if goodwill was lost, including the hindering of plans to promote the integration of legal practices into the Guangdong-Hong Kong-Macao Greater Bay Area. Their message, fortunately, struck home, and they each secured over 3,300 votes, compared to around 1,000 votes for each of their rivals. On behalf of the successful candidates, Careen Wong Hau-yan, a rising figure in the council who was seeking re-election, explained that her group had faced unprecedented challenges and a politicized society. It had, she said, nonetheless done its best to unite the profession and uphold professionalism, and its stance, which offered real hope for the future, has now been amply vindicated.
The society has chosen to remain focused, influential and respected, and this will benefit its members
After the election, the “professional” camp held 14 seats on the governing council, and the “liberal” camp six seats, and this has significant consequences for the legal profession as a whole.
If the Law Society had chosen political confrontation over responsible engagement, it could well have ended up like the HKBA — distrusted, irrelevant and shunned. The government might have had no choice but to cut ties with it, like the PTU. Instead, the society has chosen to remain focused, influential and respected, and this will benefit its members. Great credit for this must go to the outgoing president, Melissa Pang Wan-hei, who kept the society on track in troubled times, and provided sound leadership when this was lacking elsewhere.
Indeed, nobody should ever forget how, in January, when the UK foreign secretary, Dominic Raab, blatantly intimidated a British barrister, David Perry QC, over a case of unlawful assembly he was to have prosecuted in Hong Kong, there was barely a squeak of protest from the HKBA, apparently unperturbed by an egregious attack on public prosecutions and the rule of law. Instead, it was left to Pang to remind everyone that, under international norms, lawyers must be allowed to discharge their duties without intimidation by governments, and that prosecutorial independence must be respected. By this and other means, Pang set an example not only for solicitors, but also for barristers, whose own leadership, obsessed with politicking, was unable to see the wood for the trees. Once, therefore, the HKBA fell down on the job, Pang stepped up to the plate, and her successor must now pick up where she left off.
On Aug 31, Chan Chak-ming, previously a vice-president and seen as a safe pair of hands, became the Law Society’s new president. He has wide experience, is well respected, and is taken seriously in the corridors of power, all of which will benefit his members. As chairman of the Greater China Legal Affairs Committee, he is, moreover, acutely aware of the opportunities opening up for solicitors in the Greater Bay Area, and he is also one of the 600 lawyers who in July sat the new examination that enables suitably qualified persons to practice commercial law on the Chinese mainland. In other words, Chan has his finger on the pulse, is sensitive to legal proprieties, and is also politically savvy, qualities that will stand him in good stead in his presidency.
Like his predecessor, Chan will face significant challenges, but there is no reason to suppose he will not be their equal. He says the society’s new leadership will do its “best to safeguard the rule of law, and other issues people are concerned about”, which is clearly what people expect. But while, on his watch, the Law Society will not be silent on the issues of the day, he says it “will only comment on them from a legal point of view”, showing he has got the balance right. Indeed, given the HKBA’s leadership deficit and loss of direction, Chan may, like Pang, find himself having to speak for the entire legal profession, which would be no bad thing.
If a professional body wishes to make an impact, it must not only be respected, but also trusted. If it spends its time ranting and raving about issues beyond its remit, it cannot expect to be taken seriously. Now that the Law Society has shown the way, the HKBA will hopefully wake up and put its house in order. If it does not, it will have only itself to blame if it becomes irrelevant, and ignored by the powers that be. Whatever it decides, it is clear that the Law Society, with its sage leadership, clear vision and solid foundations, will be going from strength to strength, and this can only be good for the rule of law.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.