Michael Goldhaber12/14/2014
Some were disappointed when the main protest camp in central Hong Kong folded its tents with a whisper this week. To a journalist who sits across from distant Zuccotti Park, where the world Occupy movement got its chaotic start, Occupy Central was a model of disciplined civil disobedience. It was also the Hong Kong bar's finest hour.
Hong Kong bar chair Paul Shieh framed his city's year-long tutorial on the rule of law with a colorful January speech that aptly predicted a year "as lively as dragons and horses." Shieh called for political checks, human rights, independent judges, and—not least—a legal profession "free from control or influence by the government or business interests (whether direct or indirect, explicit or subtle)."
Without those qualities, the sweet tangerine of "Rule of Law" turns into the inedible bitter orange of "Rule by Law." But to truly flourish, Shieh added, that juicy tangerine needs the "collective conscience" of its citizens.
The collective conscience stirred on June 10, when the mainland State Council, in a white paper on "One Country, Two Systems," referred to judges as administrators with a basic requirement to be "patriotic."
The bar association responded the very next day with a bold rebuttal: "Respect for the rule of law (as understood in Hong Kong and the community of civilized nations) means far far more than merely 'doing things according to law' or 'governing according to law.' It includes proper self-restraint in the exercise of power in a manner which gives proper weight and regard to the importance of the independence of the judiciary." On June 27, some 1,800 lawyers and law students put this sentiment into action with a silent march before the final court of appeal.
It is true that the president of the Law Society, Ambrose Lam, endorsed the State Council's white paper.But he was repudiated by rank-and-file solicitors.On Aug. 13, the Law Society passed a resolution by 2,747 to 1,186 that the rule of law and judicial independence are core Hong Kong values and ought not be undermined. After a tearful debate, it also passed a vote of no confidence by a tally of 2,392 to 1,478. The South China Morning Post called the vote historic, and Lam soon resigned.
On Aug. 15, former Chief Justice (and barrister) Andrew Li wrote an op-ed in the same newspaper called "Under Rule of Law, an Independent Judiciary Answers to No Political Masters." Echoing the distinction between rule of law and rule by law, he called for human rights, equality under the law, and judicial independence. "Patriotic" in the context of Hong Kong means pro-government, Li wrote—and judges "should not be pro or anti anyone or anything." In a speech the next day, the current Chief Justice (and barrister) Geoffrey Ma endorsed Li's position.
When students occupied portions of Hong Kong this October, calling for popular nomination of the city's chief executive with no political filtering, barristers were at their side to offer moral and legal support.
In its public statements, the bar association denounced police brutality and said it was "inimical to the rule of law" for constitutional debates "to be openly denigrated as 'trivial technicalities' or 'trickery.'" At the same time, it declared that those who engage in civil disobedience (by ignoring public order laws or private injunctions to clear public spaces) must be "ready to accept the criminal consequences of their conduct." To the protesters' most fervent supporters, this position erred too much on the side of balance. But even they concede that the bar spoke from conviction, and was correct as a matter of law.
The refusal of Chinese or Hong Kong authorities to forge a political solution meant that the protests could only end with an impasse, either violent or nonviolent. The students took the barristers' advice, and surrendered peaceably. "The end when it came was pretty dignified on both sides," says Hong Kong Davis Polk & Wardwell partner Antony Dapiran. "It was far less messy than it could have been."
The students achieved as much as they could have in building solidarity for their movement this week. A trio of former bar chairs—Martin Lee, Alan Leong, and Audrey Eu—were appropriately detained at their side.
Sharon Hom of Human Rights in China says the political maturity of Hong Kong's bar serves as a beacon to lawyers in mainland China, who are engaged in their own incipient struggle for human rights. (See The Global Lawyer: Two Paths to Real Rule of Law in China.)
But Hong Kong's 1,100 feisty barristers deserve even higher praise. By manning the Rule of Law's barricades, they inspire lawyers everywhere.
Email: mgoldhaber@alm.com.
http://m.americanlawyer.com/module/alm/app/tal.do#!/article/1729295196
