Hong Kong Lawyers Seeing a Growing Interest in Human Rights

Lionel Mok

The Asian Lawyer

08-03-2012

From the perspective of human rights lawyers in China, who routinely face government persecution, Hong Kong must look like a paradise for practice. Though part of China, Hong Kong has its Basic Law, the mini-constitution that allowed the city to maintain the legal system it inherited from the British and guaranteed free speech and other individual rights.

Yet human rights practice generally seems an afterthought in Asia's bustling financial capital. It's certainly far less lucrative than other legal work and the prestige factor is lacking in a place where young people are perhaps more apt to name business tycoons than activists as their personal heroes.

But that may be changing, with some recent cases that have put Hong Kong human rights lawyers in the spotlight.

Many of these tend to be expatriates like Michael Vidler, a British lawyer who is director of the Hong Kong Refugee Advice Center (HKRAC), an organization for people seeking free legal advice on their refugee applications, and Mark Daly, a Canadian-born lawyer who co-founded Barnes & Daly in 1999 with fellow human rights lawyer Peter Barnes. [Full disclosure: The author was an intern at Barnes & Daly during the summer of 2009.]

Vidler notes that he and other expat lawyers hail from countries where human rights law is more established and developed. He does see more locals getting involved though. "There is an increasing number of young lawyers in Hong Kong who are prepared to commit to the extra work of human rights," Vidler says.

In addition, some international law firms have established pro bono programs which support human rights efforts. Typically, firms such as King & Wood Mallesons, Clifford Chance and Latham & Watkins, will help the HKRAC assist a few asylum seekers on their claims to the United Nations High Commissioner for Refugees each year. But while the big law firms help asylum seekers through the current system, it is the smaller law firms that are challenging the government to improve its human rights regime.

In 2004, Vidler successfully represented then 20-year-old Billy Leung in challenging a section of Hong Kong's Crimes Ordinance which recommended a life sentence for buggery by or on men under the age of 21. Vidler, who is also known for his work on lesbian, gay, bisexual and transgender rights, has also worked on freedom of expression in Hong Kong.

He handled a case in 2008 involving a Hong Kong-based pro-Tibetan activist, Christina Chan, who planned a demonstration with two other people during the Hong Kong leg of the Olympic torch relay but was forcibly removed by police from the demonstration. Vidler brought the case against the police to the High Courts, but the judge decided that the police were right to remove her from the relay because it was Hong Kong's most glorious day, and in those exceptional circumstances, the police were justified. (Vidler did not appeal.)

"There's a general principle: the right to demonstrate and the police have an obligation to protect demonstrators," says Vidler. "These are rights enshrined by the Basic Law, and all we're doing is saying that some of the decisions made by the government are infringing the Basic Law."

He is currently representing a gay participant in the International Day Against Homophobia and Transphobia, identified in proceedings as "T", who was removed from the demonstration along with the rest of his dance group, the Dancing Angels, last year. Up to 20 police officers disrupted the demonstration and threatened organizers with arrest, claiming that a public entertainment license should have been obtained because it was a performance in a public place. T is seeking a declaration from government stating that his rights of assembly, procession and expression under the Basic Law and the Bill of Rights were infringed. Last week, Hong Kong's High Court ruled in favor of the police but Vidler will challenge the decision in Hong Kong's appellate court.

"We aren't making the law; we're just saying that you have to abide by the rules and values enshrined by the Basic Law," says Vidler.

The suits Daly filed in 2010 on behalf of domestic workers seeking permanent resident status in Hong Kong have brought him the greatest publicity -- and notoriety -- of his career. Hong Kong's 400,000 foreign maids, who mainly hail from Indonesia and the Philippines, are denied the right -- extended to virtually all other expatriates -- to apply for permanent residency after seven years in the territory. Daly argues that this exclusion violates the Basic Law.

The idea of giving maids permanent residency is deeply unpopular among Hong Kong citizens, who worry that the maids would bring over spouses and other family members to compete against locals for jobs and access to public services. The case has led to impassioned protests and has resulted in Daly's first hate email -- albeit just one message so far.

The government is arguing that maids, who are hired under strict contracts, are in a separate category from other expats. A trial court agreed with Daly in September 2011, but an appellate court reversed that decision last March. The case now goes before the Hong Kong Court of Final Appeal; if it rules for the maid, there will be enormous political pressure on the Hong Kong government to take the unpalatable step of asking Beijing for an interpretation of the Basic Law that specifically bars the maids from permanent residency. [See related article, "Help Not Wanted," June 25, 2012.]

With the maid's case and many of the other cases he brings, Daly is trying to challenge the widespread assumption among the public in Hong Kong that political concerns and popular opinion should determine constitutional rights. He says the Hong Kong government too often feeds such beliefs by both its actions and inactions.

"The Hong Kong government has a bunker-down, status-quo mentality and it's not progressive in terms of developing human rights," says Daly.

Farzana Aslam, a professor of business and human rights law at the University of Hong Kong, agrees that the government tends to follow what it perceives to be popular opinion.

"The trouble is, that's never how human rights are advanced," she says. "You have to be a leader, you have to lead public opinion and you can't accept a compromise. Daly has been one of those figures who has been at the forefront of that development and really forced some change in Hong Kong."

Aside from the maid's case, Daly is best known for his work on behalf of another unpopular group: refugees from Southeast Asia. Some of these claimed they faced torture at home and sought protection under the United Nations Convention Against Torture, to which Hong Kong is a signatory. Until Daly brought a suit against the government, Hong Kong's immigration department provided no legal assistance to those seeking CAT protection and merely referred all such claims to the United Nations High Commission for Refugees; claimants from Hong Kong had a zero success rate. In 2005, Daly won a decision at the Hong Kong Court of Final Appeal requiring the Hong Kong government to process CAT claims itself.

"Only a small part of Hong Kong's community understands the rights of asylum seekers and CAT claimants," says Law Yuk Kai, director of the Hong Kong Human Rights Monitor, an independent, non-partisan organization in Hong Kong which promotes human rights protection in Hong Kong. But he says the cases Daly brought forced the government to set aside its concerns about public opinion. "The government has no choice but to change things once the court says the system is illegal and it fails to meet the standard of fairness test."

Aslam notes that the high-profile cases of recent years have sparked a growing interest in human rights and a sense of social responsibility in Hong Kong, especially amongst the student population.

The problem is a lack of viable career options. Daly declines to discuss the remunerative aspects of his practice but he says many clients have no ability to pay. For larger cases on behalf of indigent clients, the firm can apply to Hong Kong's Legal Aid Department, which will provide funding if the client is financially eligible and the case is determined to have merit. "Legal Aid does support most of our cases, but sometimes our battle is with Legal Aid," Vidler says, noting that sometimes he must seek judicial review of a denial of funding.

The number of full-time human rights lawyers in the market has remained small.

"There are not really any money-making opportunities in human rights," says Law. "The focus area is very specialized, the laws are very technical and there is a lack of opportunities to gain experience in the field." Former Hong Kong Law Society president Huen Wong thinks Hong Kong certainly needs more lawyers like Barnes & Daly but agrees "that sort of work isn't exactly lucrative."

Daly thinks he probably thinks less about financial matters than most lawyers. "I grew up thinking that if you can do something in terms of social justice, that adds a lot of meaning to your life, and you can die happy because you've done something good."