Ideological Freelancers the Politics of Legal Profession on Defense of and Offense Against Authoritarianism
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Ideological Freelancers The Politics of Legal Profession on Defense of and Offense against Authoritarianism by Ching-fang HSU A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of Political Science University of Toronto © Copyright by Ching-Fang Hsu 2020 Ideological Freelancers The Politics of Legal Profession on Defense of and Offense against Authoritarianism Ching-fang Hsu (Ph.D. 2020) Political Science University of Toronto Abstract This dissertation studies the politics of the legal profession in political regime change from and to authoritarianism. To theorize the dynamics between the legal profession and power in democratization and political retrocession, I ask two questions: What is the role of the legal professions in the advancement and retreat of authoritarianism? What is the driving factor, the mechanisms and the consequences of the legal professions’ political mobilization? This project uses Taiwan and Hong Kong at the turn of the 21st century as two cases of study. These two jurisdictions invariably experienced fundamental power reconfigurations at the turn of the century, yet their politics drastically diverged in that Taiwan democratized but Hong Kong illiberalized. In both cases, legal professions - lawyers, judges and prosecutors - have stepped into the spotlight in various political arenas, on streets and in legislatures. I argue: the legal profession is a they, not an it. They are driven by normative commitments but serve instrumental roles to resist, dismantle, or facilitate authoritarian power in political transition. Specifically, the politically active legal practitioners exhibit two principal roles, on defense and offense, which encompass categorically different goals, strategies, rhetoric and intra- professional dynamics. Shaped by an exogenous political shock, they embody heterogeneous but not necessarily liberal commitments. The divergent political developments in Hong Kong and Taiwan lead to the defensive and assertive mobilization of the bar and bench. When authoritarian rule retreated, as in Taiwan, legal professionals were given the space to take assertive political actions to structure constitutional debates and crusade in a decade-long policy-making to substantiate a variety of normative commitments. Conversely in Hong Kong, when authoritarian rule advanced, the liberal lawyers mobilized to play the defensive roles, safeguarding judicial autonomy in parliament and in professional organizations. Moving onto a transnational perspective, this dissertation also notes how lawyers respond to the expansion of Chinese market. While economic integration moves across borders, jurisdictional boundary still matters as lawyers are agentic actors shaping policies that change or sustain the markets and hence the social structure of the bar. ii Acknowledgment It is a long and unforgettable journey. This research project has brought me to surprising places, eye-opening events, and inspiring people. It has taught me about the world and myself. I would paraphrase Emil Zátopek, “If you want to run, run a mile. If you want to experience a different life, run a marathon.” If I wanted to do research, a paper would be nice. But what I wanted was a different life, so I did a doctoral dissertation. It is a life-changing experience. Now I am a different person. I could not have completed this journey without my two supervisors, Professor Ran Hirschl and Joe Wong, from whom I learned diligence, consistency, persistence and compassion. I am mostly grateful for their trust, which made me an independent scholar. I am also lucky to have a wonderful committee. Filiz understands me as who I am, allowed me to share thoughts and feelings. Professor Falkenheim is such a happy guru in the department, my go-to person, who always gave me the encouragement I need. My external-examiner, Professor Wen-chen Chang from my alma mater, has always been my role model since my college days. They made this dissertation possible. A special thank you should go to my mentor at Academia Sinica, Dr. Yun- chien Chang, who is a brilliant and successful scholar who has taught me so much about the trade in the final years of my PhD. Of course, there are countless people who supported and assisted me along the way. I cannot possibly have the space to name each one of them in this acknowledgment, but I do thank each and every one of them. Research has been financially supported by a number of external scholarships: the Chiang Chin- Kuo Foundation (CCK) Dissertation Fellowship for Taiwanese Students Abroad (2018), the Study Abroad Scholarship from Ministry of Education in Taiwan (2015-16), and the Dr. Chen Wen-Chen Memorial Scholarship (2014). I have been generously hosted by various institutions during fieldwork, including the Academia Sinica, Chinese University of Hong Kong, National University of Singapore (Center for Asian Legal Studies), and the University of Hong Kong (Centre for Chinese Law). (in chronologically reverse order) Specifically, my position in Academia Sinica is supported by the Center for Research in Econometric Theory and Applications (Grant No. NTU-109L900203) from the Featured Areas Research Center Program within the framework of the Higher Education Sprout Project by the Ministry of Education (MOE) in Taiwan. The grant was co-funded by the Ministry of Science and Technology, Taiwan (MOST 109-3017-F-002-003). Conventionally, the doctoral dissertation is dedicated to the author’s family – the parents, siblings and significant others. No exception in my case. My mother gave me ambition, and my father has always believed in me. My brother and my sister-in-law, has given me unyielding support, and the two beautiful kids gave me unconditional love. My partner has shouldered much burden of life, and showed me an example of acceptance and dedication. I am very grateful for their long-lasting love and trust. Equally important, however, is the two islands I study. I am iii humbled by all the stories. Taiwan and Hong Kong are two amazing places with complex histories, courageous peoples, and great food cultures. All very critical for a young researcher like me. Nylon Cheng, a late Taiwanese journalist/writer, once said, “we [Taiwan] are a small nation and a small people, but a good nation and a good people.” With respect, I humbly dedicate my research to the two small but good peoples. Thank you. iv Table of Contents Chapter 1 Ideological Freelancers: Legal Profession in Democratization and Authoritarian Retrocession 1 Part I Critical Juncture 23 Chapter 2 Legal Profession on Defense and Offense 23 Chapter 3 Political Origins of Legal Professional Identity 45 Part II Aftermath 85 Chapter 4 Hong Kong: Defense at Legislative Council 86 Chapter 5 Taiwan: Offense in Legislative Yuan 117 Part III Aerial View 137 Chapter 6 China’s Cross-border impact on the legal profession in Hong Kong and Taiwan 138 Chapter 7 Conclusion 164 Appendix 171 v Chapter 1 Ideological Freelancers: Legal Profession in Democratization and Authoritarian Retrocession I. Introduction An insurgent political movement of the legal profession is now rising to the global scene. In the 21st century and in most unlikely places, legal professionals have come to the frontline of political turmoil and stood in direct confrontation with the highest political authority. In Nepal, lawyers’ protest against the monarch (McDougall 2006) was violently suppressed with batons, rubber bullets and tear gas (“Nepal Police Fire on Protesting Lawyers” 2006), but soon ousted the King and abolished the monarchy (British Broadcasting Corporation 2008). In Tunisia, thousands of lawyers marched in their robes and rose as spokesman of national uprising, forcing the President Ben Ali to flee the country (“Thousands of Tunisia Lawyers Strike” 2011; Gobe and Salaymeh 2016). In Turkey, a bar leader and activist lawyer Tahir Elci was openly assassinated after defending the Kurdish rebels, whose death lead to a joint petition of fifteen bar associations across the country (BBC Monitoring European; London 2015). In Pakistan, Lawyers’ Movement aligned 80,000 lawyers across traditional political divides to support their Chief Justice, who confronted the Pakistani president and army chief, Pervez Musharraf. The protest escalated to a state of emergency, and yet Musharraf’s emergency rule was rejected by two-thirds of the senior judges. Defiant judges were removed and detained, igniting nation-wide mobilization of lawyers and eventually resulted in the president’s own resignation (Ahmed and Stephan 2010; Shafqat 2018). In addition to the striking scale of lawyer’s mobilization, both the intensity and frequency of the legal profession’s collective action are growing. Lawyers repeatedly step into key political controversies and, in some countries, even the judges are now making unprecedented political moves. In Malaysia, thousands of lawyers walked out for justice, peace and freedom in 2007 and 2014, targeting judicial corruption and right encroachment of the Sedition Act (Wong 2007; Avineshwaran 2014; Liang 2014). In 2018, four senior Indian supreme court judges went on public to oppose the chief justice’s mishandling corruption cases (Dushyant 2018), an unprecedented spill-over conflict between the high court judges and a serious warning of “endangering the judiciary’s integrity and India’s democracy.” (Safi 2017; 2018) In Bangladesh, lawyers also went into open confrontation with the court: those in support of the opposition party 1 held protests at all