Over the last couple of weeks, watching the local news in Hong Kong has become an increasingly traumatic affair. As a lawyer, these recent acts of disobedience, lawlessness, and brutality in Hong Kong are alarming to me not just on a personal or social level, but also on a professional one, and it is why I feel the need to speak up, even on LinkedIn.
The Call of Duty
Lawyers are the beneficiaries of a socially sanctioned monopoly, which protects us from the ruthless ravages of free market competition. In return, we carry the burden of duty — to act professional and ethically at all times for the benefit of our clients and the public, and to ensure that everyone has access to our services equally regardless of their wealth or status. It follows from this that when there is public and blatant disrespect for the rule of law (by anyone) we are the front-line defence and therefore must consider how we can fulfill our professional obligations under such circumstances. I would argue that it for us to stand up and — as they say — sing, and to sing very loudly!
For the law is the very thing on which our entire livelihood depends upon, and not just any old system of laws, but the rule of law as it has long been championed in Hong Kong. This means more than just a system of public administration and adjudication governed by duly enacted laws, but also that the exercise of those laws is subject to restraint from abuse. As the late Lord Tom Bingham wrote in The Rule of Law (Penguin books, 2010), the rule of law can entail different principles, at different times, in different places (none of which are always absolute and universal). But he did discern the following eight core principles as necessary for the rule of law in the sense that we understand it today: i) accessibility to the law, ii) law not discretion, iii) equality before and of the law, iv) exercise of power (in good faith, fairly, for the purpose conferred, and within the limits), v) human rights, vi) bona fide means for dispute resolution (without delay or prohibitive costs), vii) a fair trial, and viii) compliance with international laws. We are fortunate that these same principles are enshrined in our Basic Law. Yet, at this time in Hong Kong, you can witness on the nightly news that each of these principles are being strained, to near breaking point. It is therefore incumbent on us lawyers to sound the alarm.
In triggering the alarm, however, we ought to act in an appropriate manner that at all times befits our vocation. The law is a dignified and respected profession, so this is why when lawyers in Hong Kong have marched in protest, such as on Wednesday 7th August, we marched in silence. No banners, no flags, no black or white shirts emblazoned with witty slogans. Just a silent procession in a manner in keeping with the dignity of the profession we form.
It does not matter where the attack to our principles come from either. Be it from the ‘Left’, the ‘Right’, above or below, inside or out, wearing yellow or blue, we must face each challenge with equal force because we do not march as ‘pro-Democrats’, nor ‘pro-Beijing’, but just as lawyers who share a common concern about the state of the rule of law. That is why, on that day of protest, we were neither political radicals, nor treacherous traitors, nor courageous martyrs. We were just a group of workers united around a single cause — one driven by a desire to save our business, our community, and ultimately, ourselves.
Not Our Opinion, But Our Vocation
Therefore, I urge all my colleagues in the profession to defend the rule of law and the due administration of justice, with complete disregard for those who call you a hero or a villain. To speak up for laws to be followed and respected, for laws to be applied fairly and impartially, and for lawyers, prosecutors and courts to be able to do what they must do free from interference is, for us, not an act of protest nor altruism. Nor is the act of marching to demand that the Government, the police and the demonstrators must each be treated equally before the law and that none be permitted to be seen to be above the law. For we are talking about the law, the very source of our livelihoods, and the thing which no one else knows better than us, and for which no one is better placed to defend.
“Lawyers have a pivotal role in the administration of justice, a role that is defined by the fearless and independent defence of rights, not just for individual clients but also for the community as a whole.”
— Chief Justice, Court of Final Appeal, Mr Geoffrey Ma,
in the Foreword to the Hong Kong Solicitors’ Guide to Professional Conduct
Just as farmers must till their fields to keep it fertile, we lawyers must till the soil from which we reap our harvest to keep it productive, and that is the law of this land. This does not apply only to those who come from one side of politics, because all lawyers here feed on the fruits we harvest from the rule of law as it has been grown in Hong Kong for over a century and a half. Hong Kong’s leading position as an international legal and financial hub has been buttressed by these long historical roots of the Common Law. Indeed, the concept of “One Country, Two Systems” is designed to preserve the harvest of this heritage, so that this One Country can have the simultaneous and symbiotic benefit of Two Systems.
Our half of the “Two Systems”, like all those with a similar Common Law system, relies on those key principles explicated by Lord Bingham, and when they are being threatened, attacked or dismantled, the system relies on lawyers to speak up and to protect it. Ultimately, our system of law is dependent on a social contract with the public we serve. They must have faith and confidence in the system and believe that we, as key actors in that system, can guard against undue interference and arbitrary abuse of it. If we fail to do that, the whole system will be seen to be unjust, unfair, unreliable or arbitrary and we deserve no trust, and we will have no clients.
Help Hope Overcome Hate
To this end, I have joined with a number of Hong Kong lawyers from across the spectrum of seniority, backgrounds and opinions to form the Neutral Legal Observers Group. Its scope is consciously narrow and its sole purpose is to promote, protect and strengthen the rule of law in Hong Kong by being a neutral observer. It will monitor events and assist a return to the due administration of justice in Hong Kong, in an independent, apolitical, dispassionate and impartial manner. Justice may be blind, but we will be her eyes.
The mission of Hong Kong Neutral Legal Observers is to:
1. assist our fellow lawyers in the discharge of their professional obligations to clients and in the administration of justice;
2. conduct research into the full extent and exercise of the rights and obligations of residents under the law and to disseminate that information quickly, efficiently, and widely;
3. educate and train residents as to their rights and obligations under the law and encouraging everyone to exercise those rights lawfully, without violence;
4. attend public gatherings as independent, impartial and dispassionate observers to provide information (where appropriate) and collect evidence of unlawful proceedings in aid of proceedings; and
5. conduct ourselves, at all times, professionally and within the boundaries of our professional obligations and the principles stated herein.
It may be difficult not to fall into despair or even anger during these difficult times, but I believe that together we can rise to the challenge and restore — even improve — the rule of law in Hong Kong. So I encourage you to take positive action to help remedy this situation, not just because it is part of your professional duty as a lawyer, but also because the law is our business and our livelihoods depend on it. If you’re a practicing lawyer in Hong Kong, please join the Neutral Legal Observers Group, so that we may stand together and sing — sing for the rule of law, for Hong Kong, and for your own sake.
Thanks & Please Note: I’d like to thank my peers who have helped with this piece. But any errors, or omissions, and all views expressed in this article, are entirely my own and not of any other person, organisation or group.
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