New Hong Kong Bar Chair Vows to ‘Protect the Independence of the Judiciary’

Hong Kong’s Bar Association elected veteran human rights barrister Paul Harris as its new chairman Thursday to replace Phillip Dykes, who had been in the position since 2018.

Harris was admitted to the Bar in the United Kingdom in 1976 and he previously worked on the Hong Kong Bar in 1993. He founded the city’s leading rights organization Human Rights Monitor in 1995.

The new chairman faces challenges in the form of the organization’s rocky relationship with Beijing, complicated by the new National Security Law (NSL) imposed by China on Hong Kong last June, which appears to infringe upon the city’s autonomy due to conflicts with the city’s Basic Law, its mini-constitution.

Harris on Thursday spoke to reporters about changes he wants to see with the NSL and how he hopes to strengthen the rule of law in Hong Kong as the Bar Association’s chair.

He also answered questions about British barrister David Perry who had been assigned to represent the Hong Kong government in a high-profile case against nine pro-democracy activists and politicians for unauthorized assembly. Perry on Wednesday withdrew from the case citing pressure from the legal community in the UK as well as quarantine concerns.

The interview has been edited for length and clarity.

Harris: I’m a deeply committed rule of law person. That means that on the one hand, I don’t like violent demonstrations, on the other hand, I don’t like authorities that abuse their power. I will be trying in my term to strengthen the rule of law any way I can. I am particularly concerned about some of the provisions of the National Security Law, particularly the one that says that certain officials are above the law, that they shan’t be challenged in any court.

We should remember that at the moment, a lot of countries have suspended extradition agreements with Hong Kong, which means that someone like a murderer can avoid justice by moving from London to Hong Kong or Hong Kong to London. And when we get over this terrible COVID epidemic, movement’s going to get a lot easier. I think that’s a situation that nobody in Hong Kong wants.

I hope to explore whether there is any chance of getting the government to agree to some modifications to that national security law that will enable extradition arrangements to be reinstated, I don’t know if that will be possible, but that’s what I’m going to work towards.

Question: Can you elaborate on which provisions in the NSL you want to amend?

Harris: There are two provisions that say that two different groups of officials should be above the law, also Article 55, the provision that allows people to be taken to the mainland, out of the jurisdiction. The Basic Law guarantees that Hong Kong people who have access to the courts. All three provisions that I’ve referred to seem to me to be in breach of that, Article 35 [of the Basic Law].

There’s also a provision that there should be no jury trials for national security cases, but the Basic Law says that there should be a jury trial for serious cases and these national security offences carry a maximum of life imprisonment.

In addition, the regulations made under Article 43 [of the NSL] empower the police to question people about their political opinions with criminal penalties including substantial imprisonment if they don’t comply. They’re modeled on provisions to deal with organized and serious crime. But asking questions about something like fraud is quite different from asking someone what they believe about such subjects as the Communist Party or Hong Kong’s status as a special region. This is, in my view absolutely in breach of the protection of freedom of conscience. In the Basic Law, so those are the most important ones. There are a few others.

I have actually done a study of this and this is fairly widely available. It’s an article-by-article analysis of the provisions, some of them comply. Some of them no problem. Some of them it depends how the courts interpret them. Some of them in my view, cannot be consistent, and they’re the ones that I will do my utmost to persuade the government need to be modified.

Question: What are your thoughts about David Perry withdrawing from his appointment to the case against the nine pro-democracy advocates?

Harris: This is a very complicated situation, and I don’t think I can say very much sensibly actually at this point. And as you rightly said asking me, I’m particularly awkwardly placed because I would have been his opponent if he’d come.

On a personal level, I was looking forward to meeting him. He’s a very able advocate. It’s always nice to have an opponent as a barrister who’s able and the bar counsel has not yet had a chance to consider this case, so I can’t say anything on behalf of the bar counsel.

My only personal comment would be that my understanding is that the quarantine issue played a bigger part than the media have been mentioning, and that is a very important issue because getting from the UK to [Hong Kong] at the moment requires 42 days, the first 21 out of the UK and then 21 quarantine in Hong Kong, and even sending somebody from quarantine to come and prosecute the case is very controversial because they may infect people. It could be me if I’m in the same court, so I think that is a big part of what’s behind it.

As for the broader issues, I really can’t comment on them now. The bar counsel will be discussing them.

Question: Will you make any major personnel changes to the bar as chairman?

Harris: OK, there’s a new team. Anita Yip has stayed on as one of the two vice chairs. Erik Shum will be the other, Johnny Ma will be the honorary secretary. Eugene Yim stays on as the deputy honorary secretary and there are some changes to the membership as well.

Question: Back to Mr. Perry, is there some kind of conflicting interpretation about the cab-rank rule?

Let me tell you what the cab-rank rule is. It’s the same in Hong Kong as in England.

In your jurisdiction, that means in Hong Kong, if you’re a Hong Kong barrister, in England and Wales, if you’re an English barrister, you’re bound by the cab-rank rule, which says that you have to take a case, whatever you think of the client. There are certain exceptions but it’s a very old established rule.

The important thing to note is that this rule does not apply to overseas work. No one is obliged to go outside their own jurisdiction, whether they do so, it’s a matter for them. And it’s not something that is under the control of the bar council in either country. And it comes down to the decision of the individual barrister. I think there has been some misinformation that there’s no cab-rank rule that obliges anyone to come from England to Hong Kong or any one jurisdiction or any other jurisdiction.

Question: Do you think the public still has confidence in Hong Kong’s judicial independence?

Harris: In the judicial system yes, Hong Kong has some very good judges. I have been utterly appalled and disgusted at the number of attacks on the judges that I have seen in certain newspapers recently. The judges panel aren’t so bad, it’s the rules under which they operate. They don’t enter into public controversy.

So, it’s a particularly mean and disgusting thing to make allegations, groundless allegations, about a judge. I saw an article recently suggesting a judge had made a decision because he was in league with one of the counsels in the case, this is a preposterous suggestion, and it is deeply offensive.

I will do what I can by whatever method seems best to try and protect the independence of the judiciary and strengthen it where possible.

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