The Political Origins of Cause Lawyering in Hong Kong, Waikeung Tam
Compared to the cases of Taiwan and Pakistan, the mobilization of Hong Kong lawyers against authoritarian rule was not as successful. After two decades of political struggles since Hong Kong's sovereignty was handed over from Britain to China in 1997, the imposition of the 2020 National Security Law and the detention of a number of high-profile activist lawyers afterward marked an end to the Hong Kong lawyers' prodemocracy movement.
But how did this movement arise, and how did its core members gain their status in the legal profession? Waikung Tam's book chapter offers an overview of the emergence of this critical mass of lawyers who later became central figures in Hong Kong's democratic struggles. It examines the political origins of the rise of cause lawyering in Hong Kong and what cause lawyers have done to advance legal mobilization.I argue [here] that the process of the sovereignty transition led to the rise of cause lawyering in three important ways. First, the process opened up a favorable legal opportunity structure: the implementation of the Hong Kong Bill of Rights Ordinance (HKBORO) and the Basic Law and the establishment of a final appellate court (the Court of Final Appeal [CFA]) located in Hong Kong. The new legal opportunities have provided lawyers with the necessary legal basis to engage in cause lawyering. Second, concern over civil liberties prompted a few international human rights lawyers to move their practice to Hong Kong. Third, Beijing's tightening of political opportunities in the post-1997 legislature prompted several prominent liberal lawyers-cum- politicians to use their legal expertise to promote democratic changes through the courts. In addition to the aforementioned three factors, a rights-receptive judiciary has facilitated cause lawyering as well. [...]
These cause lawyers share a number of characteristic features.
First, although many of them were admitted to practice in Hong Kong between the mid 1960s and the 1980s, they did not actively engage in cause lawyering during that period of time. This fact indicates that other favorable conditions are required for these lawyers to take up cause lawyering. The section below discusses these conditions. Second, the majority of cause lawyers are active in promoting civil liberties, democracy, and social justice through other noncourt settings. For example, about half are the core members of either the Civic Party or the Democratic Party: Paul Harris, Philip Dykes, Johannes Chan, and John Clancy founded the Hong Kong Human Rights Monitor; and Michael Vidler and Hectar Pun have been actively involved in social movements. The long-standing political activism of all of these lawyers has expanded their social capital in areas such as social networks, reputation, and political power. They have frequently used this social capital to further their work, for example, in mobilizing their political influence to help disadvantaged clients.Third, Hong Kong cause lawyers practice in different settings. Audrey Eu, Margaret Ng, Denis Chang, Philip Dykes, Hectar Pun, and Jocelyn Leung practice in large chambers, while a number of cause lawyers practice in small law firms. Barnes and Daly, where Mark Daly is a partner, has three employees: the two partners and a trainee lawyer. Ho, Tse, Wai and Partners, where Ho Chun-yan and John Clancey practice, has seven lawyers. Cause lawyer B practices in a small firm that employs three lawyers. Compared with large law firms, small firms allow cause lawyers to enjoy more freedom to choose their causes, colleagues, and strategies. As an example, before starting his own law firm in 1995, Ho Chun-yan was a partner elsewhere (which he requested be unnamed). At that time Ho found it difficult to engage in cause lawyering for two reasons. First, law firms in Hong Kong tend to avoid politics; and, second, Ho's support for democratic movements in China since the 1989 Tiananmen crackdown angered Beijing, and therefore his partners felt intense political pressure from the Chinese government.
By establishing his own law firm and hiring colleagues with similar political and ideological beliefs, Ho has a more supportive setting to practice his cause lawyering work. Finally, apart from practicing in law firms, cause lawyers in Hong Kong are also found working as law professors. Johannes Chan, for example, teaches constitutional and public law at the University of Hong Kong. [...]The majority of Hong Kong cause lawyers are active in promoting democracy, civil liberties, and rights of marginalized groups through other non-court settings. Their long-standing political activism has expanded their social capital in areas such as social networks, credibility, and political power. They have frequently used this social capital to further their work.
First, the social networks of these cause lawyers provide more opportunities for them to contact and interact with the marginalized groups so that they can explore the possibilities of litigation. The two cases below illustrate the important roles of these social networks. The first case concerns gay rights litigation. After exhausting all means to press the Broadcasting Authority to change its decision to censure a TV program on the love affairs of gay and lesbian couples in 2006, a gay rights activist (Joseph Cho) contacted his friend at Amnesty International Hong Kong and enquired about the feasibility of litigating against the Authority's decision. More important, Cho asked his friend to recommend lawyers for help. Cho's friend introduced him to Michael Vidler, who is a member of Amnesty International's Lawyers' Network. Vidler became Cho's lawyer and they established a cordial lawyerclient relationship.
The second case concerns a housing rights case launched by the Evangelical Lutheran Church in 1999 on behalf of emigrant families from China. The Church retained Ho Chun-yan as its lawyer. Two social workers of the Church explained how and why they retained Ho to litigate for them, as they noted:
When we lobbied the legislature against the government's discriminatory housing allocation policy, Ho Chun-yan was one of the legislators we met.
During various meetings, Ho showed his sympathy with our cause. After deciding to sue the government, we turned to Ho for legal advice because we had already established contact and knew that he was supportive to our cause.In short, the extensive social networks of cause lawyers have facilitated their interactions with marginalized groups who want to use the law to advance their interests.
Second, the political influence attached to the networks of cause lawyers has facilitated their work as well. They can mobilize their political influence to help their clients. In the litigation against the government's public housing rental policy in 2003-04, for example, the rights advocacy groups retained Ho Chun-yan because they sought to use Ho's expansive political networks to further the movement of affordable public housing. As an activist said, “We instructed Ho Chun-yan as our legal representation because he, as a core member of the Democratic Party, could help us to persuade the Party to support our movement.”
Finally, the track record of cause lawyers in promoting democracy and defending the rights of marginalized groups has helped them to establish trust and credibility within civil society. Human rights and public policy litigation is generally politically charged and thereby demands greater trust and cooperation between the litigants and their lawyers. As a cause lawyer remarked:
In high-profile judicial reviews, litigants often have their strategies in mind. Thus, they need trustworthy lawyers who understand and are willing to litigate from their perspectives. Moreover, public policy litigation requires substantial information about the policy such as the policy-making process and government's standpoint. In that regard, litigants (who are often social activists) are more resourceful.
The following comments by three political activists illustrate the importance of a trusting relationship between litigants and their lawyers in politically sensitive litigation.
In their litigation against the government's decision to privatize shopping and car park facilities within public housing estates in 2004-05, the rights advocacy groups retained Philip Dykes and Hectar Pun because of their trust in them. As an activist explained their decision:We chose Philip Dykes and Hectar Pun to be our lawyers because, apart from their legal expertise, we had a cordial working relationship before. Dykes was famous for representing civil society organizations in human rights litigation; and Pun and I knew each other when we were student activists in the late 1980s and early 1990s.
Leung Kwok-hung, who has filed a number of high-profile lawsuits against the government after the sovereignty handover, also emphasized the significance of having trustworthy lawyers in litigation. As he noted, “It is crucial that my lawyers are able to sympathize with my political viewpoints. Otherwise, they can hardly advocate my case enthusiastically.” Fernando Cheung Chiu- hung, who organized a judicial review defending disabled students' rights to special education in 2009, mentioned that he chose Martin Lee, Hectar Pun, and Dennis Kwok as his lawyers because of both their expertise in human rights cases and their credibility in championing human rights.
In brief, my interviews find that human rights and public policy litigants require a higher level of trust in their lawyers because of the political salience of their cases. The track record of cause lawyers in promoting democracy and civil rights helps them to gain the confidence of potential litigants.