“The rule of law is dead” – it is a common complaint among pro-democracy activists and politicians following months-long protests in the city, allegations of police brutality, and Beijing authorities making controversial claims about its legal powers.
Or as Umbrella Movement leader and law professor Benny Tai recently put it: “The Rule of Law is not dead, but it’s a zombie.”
How can legal professionals restore the general public’s confidence in the city’s rule of law as protesters express disbelief after the collective trauma induced by recent unrest? Three candidates for the upcoming Law Society Council election agree that “it’s difficult, but we still have to try.”
Janet Pang, who was admitted as a solicitor in 2015, said it is easy to express frustration. “But we three think it’s more important to fight for it, rather than feeling frustrated. And we three consider it our duty to stand at this critical time.”
Pang will be standing in this year’s Law Society Council member election together with two other solicitors, Olga Choi and Kenneth Lam.
Founded in 1907, the Law Society of Hong Kong is a legal professional body for practising solicitors. Its council consists of 20 members, with an intake of five new members each year to replace the five longest-serving ones. On their election campaign page, the trio call themselves “the strong and fearless voices.”
They have all provided pro-bono legal services to arrested protesters during the city-wide unrest which erupted last June over a now-axed extradition bill, and said the experience motivated them to take part in the election.
“I saw injustice and unfairness, so I started to ask myself: What more can I do apart from being a pro bono lawyer?” Choi wondered, as she volunteered to give arrested protesters legal consultations during the pro-democracy movement.
She met Janet Pang, who shared a similar understanding of the rule of law, and the duo believe that they should bring firmer voices to the Law Society, which they think has fallen short in providing a correct interpretation of the idea.
Lam, who runs his own firm with a focus on civil litigation, lost in the 2018 election when he ran with legal scholar Eric Cheung, but he decided to run again in May. He said the major motivation was to defend the city’s rule of law and judicial independence which he thinks are in danger: “These two very important [principles] are the determining factor of Hong Kong’s success… I realise I have the responsibility to defend and speak up to safeguard… rule of law whenever it is under threat.”
Lam said he witnessed police brutality when he was in contact with clients who were under arrest: “What Hong Kong people experienced is awful.” He was brought up in the 70s and 80s and saw significant improvements in making the government and the police accountable to the public. But Lam said the deteriorating situation had wiped out 30 years of progress.
The police force and other government departments were notorious for corruption and misconduct in Hong Kong society during the post-WWII period. It was not until the establishment of the Independent Commission Against Corruption that the situation improved.
The lawyer said he could not fathom why and how the injuries could happen as he visited the San Uk Ling Holding Centre and dozens of police stations to conduct legal visits with his clients: “Why would these police officers, after arresting a young protester, still beat them, causing serious injuries?”
“Worse still, in some cases, you could see that they were not beaten in the course of arrest but as they were brought to the police station, completely subdued – but still beaten by a gang of more than ten police officers.” Some protesters were hospitalised for two or three days before he could meet them, Lam added.
Choi, who was motivated by similar experiences, said arrestees now faced more injustice: “Just because they support the movement they are being unfairly treated by the police.”
She said the erosion of rule of law and judicial independence were undeniable facts, but this is precisely why they should come out and represent members with similar views. “If we do not come out today – and if we still stay silent to what we see – it will continue to worsen.”
More to the rule than obedience
Pang further explained the relationship between police brutality incidents and the rule of law. “Rule of law… means that public power has to be properly constrained and effectively constrained by the law.”
She said the principle should be based on values including democracy, human rights, justice, and fairness: “And equality before the law, meaning everyone — including the government and the police, everyone — has to be subject to the law.”
“In recent months the Law Society has not been standing strong and firm enough to speak out for the rule of law.” Pang said. She disagrees with the Council president Melissa Pang, who said at the ceremonial opening of the 2020 legal year that the rule of law means only obedience.
The council president said at the ceremony that obedience of the law is “non-negotiable and uncompromisable” and necessary in upholding the rule of law. Referring to the social movement where protesters sometimes display violent dissent towards police behaviour and Beijing’s encroachment, Melissa Pang said that every willful disobedience of the law is an erosion of the rule of law.
“I do not subscribe to the view that the rule of law will not be affected if those who commit arson and injuries to persons are willing and will eventually pay the price by going to prison.”
Lam said he believed lawyers expected professional bodies to speak out and defend the legal system but the Law Society had failed to give a clear message.
The ill-fated extradition bill was exceptionally relevant to the legal professional bodies as it lifted the firewall between the common law system in Hong Kong and mainland China legal systems by allowing the transfer of fugitives.
The group said the Law Society’s slow response — and sometimes inaction — were disappointing: “People have been waiting, I’m sure solicitors and the entire legal profession have been waiting, for the Law Society to come out to say something,” said Lam.
Yet it was not until last June, a day after the lawyers’ march, that it issued a statement, which gave him the impression that it was not taking an active role and only reacted to pressure.
“At these critical times I believe that our members expect professional bodies to come out, speak up and defend our system and the rule of law.”
Legal before political
Although the three of them have similar political opinions, they said their campaign was not politically-driven: “The common interests relate back to the rule of law,” said Lam.
Aside from the protests, Hong Kong has seen a number of challenges posed to pro-democracy activists and politicians. The political and legal factors, however, are often interwoven and inseparable.
Pro-democracy Civic Party lawmaker Dennis Kwok, who represents the legal sector, recently faced strongly-worded criticism from Beijing’s Liaison Office and Hong Kong and Macau Affairs Office. He was accused of filibustering during House Committee meetings and some commentaries said Kwok fears being unseated amid the political pressure.
Six pro-democracy lawmakers were also disqualified from the legislature over protests during their readings of their oaths of office. It followed an ‘interpretation” of the Basic Law by the National People’s Congress Standing Committee.
Janet Pang said the group were not disputing the disqualification of particular lawmakers but, rather, they would approach the matters from a legal perspective: “We are not seeking to convert the Law Society to our political stances…This is law, not politics.”
She said Hong Kong laws included the Bill of Rights Ordinance, which is based on the International Covenant on Civil and Political Rights. “We would question whether this kind of disqualification of popularly elected members is actually an assault on the political rights of Hong Kong people.”
Janet Pang said running in the election was how the three legal practitioners would put their beliefs into practice: “And that’s how we react and respond to the assault on our legal system.”
The Law Society Council election will be held on May 28 and all members are eligible to cast a vote. Choi said it was critical that members should vote. “By having so many people backing us… we can show the Law Society what members want and think.”