[Change of Term at Hong Kong Bar Association] Interviews with Philip John Dykes, Anita Yip and Eric Shum: What Kind of Future Does Hong Kong Face Under the National Security Law?
By Translated by Guardians of Hong Kong 20 Feb 2021The Bar Association will have a change of term tomorrow (21st), with 67-year-old Philip John Dykes, SC, having served two terms as President of the Association and being expected to step down from his position this year, as required by the Association's charter. Paul Harris, a senior barrister and founding chairman of the Hong Kong Human Rights Monitor, is expected to take over unopposed. Barrister Eric Shum, a current member of the Association's Executive Committee, ran for Vice-Chairman three years ago, along with Dykes, who defeated Lam Ting-kwok's list, while senior barrister Yip Hau-kee, a current Vice-Chairman of the Society, is seeking re-election.
Three years ago, the "Dykes List" was concerned about the juxtaposed controls and the national anthem law; now, in 2019 and 2020, Hong Kong has fallen into a major storm, and the number of statements issued by the Bar Association is the highest in the past decade. He was also the Chairman of the Association 16 years ago. The last two years of that term, from 2006 to 2007, the Association did not issue any statements. "It's a stark contrast." He lamented that the "erosion" of Hong Kong by the mainland authorities in the past was not as obvious as now. After coming to Hong Kong from the United Kingdom in 1984 and spending half of his life focusing on human rights issues, the National Security Law in Hong Kong became the last and biggest challenge of his term.
The National Security Law has been passed for six months, and Dykes' comrades, Anita Yip and Eric Shum, have a lot to think about. Different from Dykes, Anita was a born Hongkonger who graduated from the law department of the University of Hong Kong in the 1980s and started practicing in 1989, specializing in family law. In 2019, the Anti-Extradition Law Amendment Bill (Anti-ELAB) Movement broke out and she began to give interviews to the media, speaking out on issues such as independent investigations and amnesty for protesters. Last year, the National Security Law stirred up a thousand waves, and Anita kept on expressing her concerns publicly. “In the past year, some issues have been really controversial, and some people may not think what I said was quite right…” Said Anita, “On the issue of the rule of law, we will continue to adhere to our principles whenever we feel the need to speak out.”
Eric is also concerned about the impact on the rule of law in Hong Kong. Since the 1990s, Eric began working as a defense attorney for social movement protesters. After June 4, 1989, he joined a think-tank organization, of which Szeto Wah and Martin Lee were members. He later became a founding member of the Democratic Party and now serves as the legal advisor of the Catholic Orthodox Committee. Like Anita, he has always been willing to express his views to the public on the Anti-ELAB movement and National Security Law issues.
On the occasion of the change of term, The Stand News interviewed Dykes, Anita, and Eric to present their feelings and thoughts on a common problem faced by the legal profession - National Security Law. In their view, what is the future of Hong Kong's judicial system?
When The Court Is Cut Like a Pie, The Public Loses Confidence
The National Security Law came without warning. We never had a chance to see the details of it, even though we got wind of it. Dykes said they were still digesting the law.
Seeing the rapid passage of the National Security Law, Eric recalled the social situation many years ago, when the government introduced the Article 23 legislation in 2003. As he remembers, the then Secretary for Security would promote the Bill at that time and would consult the Bar Association, and barristers could also attend the consultation sessions organized by the Legal Department and the Security Bureau at that time, "We have a long meeting to go."
For nearly ten months, public opinion reversed and half a million people took to the streets, and 23 articles were eventually withdrawn. Eric feels that in the past, Hong Kong used to have a "civilized" culture of expressing public opinion and the government listening and responding to it, "communicating", and most importantly, "reasoning". However, this culture is no longer the same today.
It took only one month for the Hong Kong version of the National Security Law to be passed by the National People's Congress in the Mainland, during which the government promoted the National Security Law without mentioning the contents of the law. Chief Executive, Carrie Lam, faced questions from the media, indicating that she was not clear about the specific provisions. “No consultation at all, no acceptance of Hong Kong people's views at all. Even senior government officials are unaware of the content, which itself is inherently problematic.” Eric said.
In his opinion, it is unnecessary to pass the National Security Law in such a short time.
“There were no major, immediate national security problems before July 1... If this approach works without urgency, and is considered normal and in the spirit of the rule of law, I would ask, why did they do such a show in 2003? After the 2019 movement, is there such a big difference in Hong Kong society that there is such urgency to let mainlanders legislate Hong Kong’s law?
Eric worries that the legislative process of the National Security Law and the restriction of the power of Hong Kong courts has itself affected the spirit of the rule of law.
"The law needs to be known and supported by the majority of the population in order to be accepted in the spirit of the rule of law," he said. He said, "It was done by the mainland authorities, the State Council, and then put in Hong Kong to force Hongkongers to take it up This process itself is not the process we know.
He believes that the court's power has been weakened under the National Security Law and in some ways has become "no role to play".
For example, in the case of wiretapping, Article 43 of the Hong Kong National Security Law provides that in matters involving national security, the Hong Kong Police can intercept communications and conduct covert surveillance with the approval of the Chief Executive, without the prior authorization of a judge, as required by the Interception of Communications and Surveillance Ordinance. The Commissioner for Interception of Communications and Surveillance, Mr. A.R. Suffiad, S.B.S., admitted to the media that he had no say in, and could not review or oversee, the investigation of the National Security Law.
In addition, Article 55 of the National Security Law sets out three circumstances under which the Office of National Security may exercise jurisdiction over a case. "The Hong Kong court does not have any jurisdiction if the case is within the scope of the National Security Bureau, but it has the power to enforce the law and deport the person to the mainland for trial. This part is very serious, ... even to challenge its classification, (the court) does not have the ability to do so, because you do not know why it is allocated (into the Office of State Security) inside."
"The court's power to enforce the common law in Hong Kong, as we used to know it, has been constrained in many different ways." Eric said, "The Hong Kong courts seem to be like a pie, and they are unable to do anything because they have cut out the small pieces. It's a political issue, and public confidence is weakened for this reason every time."
When public confidence is greatly affected, the stronghold of the rule of law will be shaken.
"One of the most important points in the spirit of the rule of law is that the public must have confidence in the entire system and every aspect of it.
If the public does not have confidence in the system itself, as well as the implementation of the time, including the legislation is not the will of the majority of people, there is no opportunity to give advice, to the court does not have such jurisdiction to jurisdiction cases, there is no way to complain, the public does not have confidence in the system, will affect the spirit of the rule of law." Eric said.
Can Justice Be Done in Court Under the National Security Law?
The newly appointed Chief Justice of the Court of Final Appeal, Mr. Andrew Cheung, answered the media at a press conference, saying that Hong Kong courts are "battle-hardened" and appealing for confidence in the court's ability to interpret National Security Laws in accordance with common law principles.
Dykes said that technically, he "has every confidence" in Hong Kong judges to interpret National Security Law by the Common Law, and that he believes judges will do their best to apply the principles of the common law. He also cited his own representation in the case of Tong Ying-kit, the first Hong Kong national security law defendant, in which High Court Judges Lee Wan-teng and Chow Ka-ming emphasized in their rulings that there is no basis in Hong Kong for interpreting National Security Laws in a way other than the Common Law.
As for the outcome of the interpretation, Dykes said that it will be seen in nine months, "when the court will need to make a decision under the National Security Law. He also admitted, "I must say I can't predict the outcome. You no longer have a totally independent judiciary," he said, not only because the judges are appointed by the chief executive, but also because the law assumes that there's a presumption against bail, rather than a consent to bail. There's a presumption against bail, rather than for bail.
Anita also worried about the contradiction between the National Security Law and the bail presumption, and questioned whether there was a contradiction between Article 4 of the National Security Law, which protects the freedom of expression as provided for in the International Covenant on Civil and Political Rights, and the national security law itself. "There is tension between certain provisions of the National Security Law and the Basic Law," Anita said, "and it will be a very challenging year ahead for the judiciary.
If the National Security Law itself exists in a position that contradicts the common law or other human rights values, even if the Hong Kong courts have excellent common law interpretation skills, what will be the result? Eric believes that the courts work within the framework of the law, and if the law itself is unjust, there is less chance of obtaining justice through the judgment.
If the law itself ties the hands of the court, the result will not be good. The court will only show what the law is within the framework of the law. If the law is just, the chances of success will be greater; if the law is not just and people do not accept it, the chances of the court's decision being just will be smaller.
He said that so far, cases involving National Security Law have not entered the process of substantive trial and judgment, but only dealt with the issue of bail, such as the case of Tang Ying-it and Jimmy Lai Chee-ying. The court has not granted bail, but the presumption of innocence and the assumption of bail are still valid in the closing arguments and judgment of the Department of Justice, and the court is considering "whether there is substantial evidence that he will violate the National Security Law again, and whether he will go to the police.
Eric believes that the court can only try to achieve a result of coexistence between National Security Law and the Basic Law in terms of legal interpretation.
“This law, first of all, was not made by Hong Kong people, and secondly, it was not debated in the Legislative Council, so the court could only rely on those words and other conflicting laws, such as the CPO (Criminal Procedure Ordinance) or the Basic Law, and then get an interpretation that we can all co-exist with. This is new and has never happened before.”
Can the National Security Law and the Basic Law coexist?
According to the National Security Law, Hong Kong's local "provisions shall apply to the extent that they are inconsistent with this Law". However, the Basic Law also provides that any amendment to the Basic Law "shall not contravene the established basic policies of the People's Republic of China regarding Hong Kong". The so-called basic policies, according to the Preamble of the Basic Law, refer to the contents of Annex I of the Sino-British Joint Declaration.
I know the Joint Declaration is an 'outdated' document," laughed Dykes, "but it's in the Basic Law. Does the national security law have to remove those (Basic Law) regulations? If so, it's unconstitutional. Then there will be a constitutional legal contest, where the Basic Law will go up against the National Security Law, and then the NPC will tell you who the winner is - a far-reaching change that will eventually pass that legal test.”
Are The Courts Under Pressure In The Face of Calls For “Judicial Reform"?
In addition to the implementation of the National Security Law, the past year has seen challenges to the legal profession and the judiciary in Hong Kong, as well as criticism from people from different camps and calls for "judicial reform" from the establishment and Beijing officials.
Since the outbreak of the Anti-ELAB movement, the courts have had to handle a large number of cases related to social movements, and the verdicts have often been of great concern to both camps. The pro-movement side has questioned the Department of Justice's selective prosecution and the court's heavy sentencing of protesters, while the opposing side has argued that sentences are not sufficiently deterrent and even criticized the bail standard as too lenient. According to HKUPOP's survey, people's rating of the rule of law in Hong Kong hovered between 6.2 and 7.2 marks from 1997 to May 2019, plunged to 4.4 marks in September 2019, further dropped to 4.1 after the implementation of the National Security Law in July 2020, and dropped to a record low of 3.4 marks in September of the same year. In September of the same year, the score fell to a record low of 3.4.
In addition to the criticisms made by people from different camps, the criticism of the judges by the official media supported by Beijing and the pro-China camp is of greater concern.
Since last year, the Liaison Office controlled Ta Kung Pao and Wen Wei Pao have repeatedly attacked the judiciary, including naming some of the "yellow officials" for leniency in sentencing protesters and granting bail easily, especially the decision of High Court Judge Lee Wan-teng to grant bail to Next Media founder Jimmy Lai. Some court rulings, such as the ruling that the police's "Special Tactical Squad" did not display numbers, violated the Human Rights Act, and the "No Masking Law" was once ruled unconstitutional. The judges who heard the cases were repeatedly criticized for their "ridiculous rulings.
Against this background, the pro-establishment camp and pro-China activists have been advocating "judicial reform" since last year, advocating the establishment of a separate committee to oversee judicial officers and court sentencing, etc. The "judicial reform" proposal has even been endorsed by Zhang Xiaoming, the permanent deputy director of the Hong Kong and Macao Affairs Office of the State Council.
The former Chief Justice, Mr. Geoffrey Ma, issued a 14-page statement last year in response to criticism from the community, reiterating that the courts should be free from any interference and that everything should be based on the law, with no political considerations.
In response to a question from the media, the former Chief Justice, Mr. Andrew Cheung, emphasized that the current appeal mechanism is more effective and regular, and that any reform should be based on the objective of an independent and impartial judiciary.
Whether the verbal and written criticism from the party media and the pro-China camp over the past year has exerted any real pressure on the court's decision, he has yet to see from Eric's daily experience in court. "As far as I can see, when we debate in court, we rarely mention the comments of people outside the courtroom. Even if the lawyer raises it in court, the argument is not valid and the judge will stop it immediately."
“Some people will say, "You'll make a judgment, and if it's not right, (the NPC) will interpret the law. They have a history of doing this.” As earlier, when Jimmy Lai was granted bail, newspaper "People's Daily" wrote a commentary "to remind" the Office of the State Security of Hong Kong has the legal basis to activate Article 55 of the National Security Law, to intervene in the case.
So far, Eric does not believe that the court's decision was influenced by pressure, as far as Eric is concerned. But he agrees that such threatening comments from the media will undoubtedly affect public confidence in the court's independence. "If the court ultimately rules in favor of the government, (the public will think) 'See? I told you so!".. these comments are unfavorable, they should not make such threats before the case is decided, and the Secretary for Justice should stop them before the case is decided.”
In his speech at the opening ceremony of this year's legal year, Mr. Dykes reiterated the importance of judicial independence. In his speech, he stressed that the judiciary must be independent and free from any interference in the exercise of judicial power. While the executive branch cannot advise the courts on how to exercise their powers in handling specific or certain types of cases, "unreasonable attacks" on judges by the media may also constitute contempt of court if they are intended to influence the judges' decisions.
I am most concerned about criticism that is not justified, that is simply invective, or that is based on some political or moral agenda. If these attacks are not monitored, they will undermine public confidence in the judiciary. He said he understands that the legal profession cannot simply tell the public to read the court's decisions to understand their rationale, but he wants the public to understand that even if the courts do not rule as they would like, judges are ruling on the basis of their oaths, legal principles and their own private conscience.
"If unwarranted attacks that degrade the judiciary are allowed to spread, it will only make the judiciary more isolated and vulnerable to pressure.
But the more obvious fact is that despite repeated rebuttals from the judiciary and legal groups, there seems to be no stopping the pro-China camp from attacking judges or calling for "judicial reform". Is the pressure on judges now systematically coming from Beijing to fundamentally overhaul the judicial system, which the establishment has named one of the "Three Great Mountains"?
Eric is unable to judge whether the recent criticism is a systematic attack, but as to how to protect the robustness of judicial independence, he believes that many provisions of the current judicial system are precisely designed to protect judicial independence, such as the life-long system for judges, regular review of judicial salaries, and internal handling of judges' conduct by the judiciary.
He argued that these systems are worth preserving, and that even if there is to be "judicial reform," any reform must be done in a way that does not compromise judicial independence or make it possible for judges to rule in favor of the government in the future. "We cannot say that because a judge approves a defendant's bail today and we think it's not right, we are asking for judicial reform.
Mr. Dykes acknowledged that the judiciary and its judges have undoubtedly been under tremendous pressure for much of the past year. But he said he was reluctant to make simple generalizations about whether judges could still rule unimpeded under such pressure.
"To be fair, judges are human and they are subject to different pressures, but I don't want to make generalizations about their character or their resilience," Dykes said. But if they still act on their oath, if they still trust the system, if they still trust the support of independent barristers - as I said in my speech, without the independence of lawyers, there would be no independent judiciary, and judges should be able to do their job in accordance with their oath," said Dykes.
Anita believes that the criticism of the Judiciary and the Bar Association over the past year may be related to the more controversial nature of the issues in recent years. "No one likes to be criticized, I guess that's the pressure, right? …But after all, I believe that the Bar Association will continue to uphold its good traditions in the coming year, especially when it comes to the rule of law, the rule of law, and legal issues that we feel need to be voiced, we will still stick to our principles.
The Bar Association is expected to re-elect Anita and Eric as its executive members and vice chairmen. After a year of shock and awe, they were asked about their plans and visions for the coming year, and Anita said that there were too many unforeseen events and epidemics last year, so the Bar Association wanted to organize seminars and workshops to explain the law to the public, but they were unable to do so.
"As to whether you're saying it's going to be more challenging... this past year has been challenging," laughs Anita, "but there's no doubt that we're in very challenging times."
Eric also mentioned that, in addition to making statements on social issues, the Bar Association also needs some regular work, such as handling complaints and providing training for barristers who are new to the profession, to continue to fulfill the vision of developing a strong local bar.
In the past year, the Bar Association has issued 20 statements, five on the National Security Law alone, but in the end it was unable to stop the law from being implemented in Hong Kong. What more can the Bar Association do in the coming year, when the overall political environment is expected to become even more tense?
"It's probably a little less challenging than the last three years because the environment doesn't allow you to do much," Eric said. "In fact, the opportunities for the Society itself are very limited - we don't go on strike, we don't do anything too political...But when we see problems with the rule of law, we will speak out. All we can do is write letters, write statements, generate public discussion, and monitor developments. We will continue to do all these things, and we will definitely do them."
A Healthy Society Needs Opposing Voices
A National Security Law, the contents of which no one knew beforehand, was inserted into the legal framework of Hong Kong overnight. Eric said frankly that it is beyond the Bar Association's ability to comment on what the national security law is or is not.
"We are not in a position to talk about what is right or wrong, or to make moral judgments. But the officials are always saying that we should support the Basic Law, that we should implement "one country, two systems" and "a high degree of autonomy" under the framework of the Basic Law... So many of us who are more rational are only saying that we have promised something under the Basic Law, which is a very humble request..." Eric smiles bitterly, knowing of course that things are not the same as they used to be.
"You think the barristers are so 'cool and amazing', but in fact they are not closed at all, we can only speak out on these issues, but in reality we can do nothing. Political issues have to be resolved politically after all."
Eric founded the United Democrats of Hong Kong (UDHK) in 1990 and later became a founding member of the Democratic Party. He lamented that Hong Kong's civil society and legal profession have developed over the past few decades, nurturing "civilized" and "reasonable" people and systems, but in the past two years, he has witnessed their gradual collapse, from the quality of political debates in the Legislative Council to the attitude of government officials towards the public: not apologizing for the Anti-ELAB incident, not even considering setting up an independent commission of inquiry... Even the daily court cases are becoming more and more unreasonable, and there are signs of this everywhere.
We've seen that often times the attitude of the (police) officers during statement giving is different... Before 2019, witnesses were not so bold. They continued to lie even though they knew and saw the footage that their testimony did not match the scene. This is a very strange phenomenon. Shen said he couldn't speculate on the reason, "but I want to know why, that's why we need to look into it and ask the police internally if they actually have a review system."
As a result of the social upheaval, Dykes and Eric have heard that many lawyers have emigrated or are no longer practicing law. According to Dykes' observation, many lawyers, especially those who are approaching 30 or 40 years old, or who do not have families, have chosen to continue their practice in other common law jurisdictions such as the United Kingdom and Australia.
"Morale in the legal profession is really low ... but I don't think we're all desperate. There are people who will stay and continue to fight for the values that the Bar Association believes in, which are defending the rule of law, the Basic Law, human rights law, and judicial independence," he said. But he doesn't blame the lawyers who chose to leave, Dykes said. "When the going gets tough, you realize there's a lot of work to be done," he said.
What about Dykes himself? He was born in England, came to work for the Department of Justice in 1984, participated in the drafting of the Hong Kong Bill of Rights Ordinance, fought many important judicial review cases, and built up Hong Kong's judicial system little by little. If he retires in a few years, does he plan to leave Hong Kong?
"About that... I'm getting old, you know. My professional career will be over soon, but I'm not going to disappear right away," he laughs, "I'm not going to disappear on Friday after my 'dumping' on Thursday, I'm going to stay a little longer and keep working, I have some lawsuits to fight.”
After 2019 and 2020, the street unrest has subsided, but the stronger aftershocks are just beginning. The promulgation of the National Security Law in Hong Kong will undoubtedly make the situation even more tense, according to Dykes.
"We have seen an apparent stability, a return to calm on the streets...But if the price of 'calm' is the prohibition of all forms of political expression, this is like the peace of the graveyard, not the calm we want to see in our society. A healthy society needs political debate and opposition."
Three years have passed, the national anthem law has been passed, mainland law enforcement officers have been stationed in the West Kowloon Port Area, and there have been endless prosecutions accompanied by political purges. Is there a bottom line that cannot be crossed, and if it is crossed, will Eric join the ranks of those who shout "the rule of law is dead" and even quit being a lawyer?
"It's hard, it's so hard... in fact, the line has been moving for a long time," he laughed bitterly and made a metaphor: "When I go to the movies, they get worse and worse, so I adjust the laughing level down. The "I'm not going to be able to do that.”
Why do you stay despite the high winds and waves? "If you ask me personally, if the people you serve still need you, you have a very good reason to stay in Hong Kong to work and speak out," he said. said Eric Shum.
Source：Standnews #Jan20
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