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Tuesday, Jun 06, 2023

Hong Kong government has final say on security cases: Beijing

Hong Kong government has final say on security cases: Beijing

Beijing has passed a motion to interpret two articles of Hong Kong's national security law, affirming the local government's unfettered power on security matters despite the territory's tradition of judicial independence.
China's state broadcaster CCTV on Friday said the Standing Committee of the National People's Congress voted to interpret Article 14, which states that the Hong Kong government will form a committee to "advance the development of the legal system and enforcement mechanisms of the city for safeguarding national security," and Article 47, which requires the courts to obtain a certificate from the chief executive for evidence that involves state secrets.

China's legislature ruled that the committee will have the final say in all matters, that its decisions will not be subject to judicial challenges and that they are legally enforceable. The Standing Committee also stressed that Hong Kong courts should obtain a certificate from the city's leader regarding state secrets, and that the issue of whether a foreign lawyer can handle a national security case falls under Article 47.

The decision could allow the Hong Kong government to overturn court rulings allowing foreign representation.

John Lee, Hong Kong's chief executive, thanked Beijing late Friday evening. "The Standing Committee of the National People's Congress ... clarified the legal meaning of the relevant provisions, established principles, and further improved the legal system and enforcement mechanism for the [special administrative region] to maintain national security," he said in a statement.

The national security law, which criminalizes vaguely defined subversion, secession, foreign collusion and terrorism, was imposed by Beijing in mid-2020. The Hong Kong government sought Beijing's help to interpret articles in the law after it repeatedly lost appeals to bar British lawyer Timothy Owen, King's Counsel, from representing pro-democracy figure Jimmy Lai in a high-profile trial, citing the central government's "high concern" about defendants retaining foreign counsel.

The government's Department of Justice argued defense lawyers required knowledge of China's national security.

Lai, founder of newspaper Apple Daily, has pleaded not guilty to charges of conspiracy to collude with foreign forces and several counts of sedition. Although the city's top court upheld earlier rulings to allow Owen to represent Lai last month, authorities have denied the attorney's work visa, putting the trial on hold. Lai's next hearing will be in May, with the trial expected to start Sept. 25.

Foreign lawyers have "become an entry point for [the authorities] to confirm the unchecked powers of the chief executive and the national security committee," said Kevin Yam, a former Hong Kong lawyer now based in Australia. He said "any policy" might involve national security and that the committee's decision "will override any legislative and judicial process. ... This will effectively turn [Hong Kong] into a little despot state."

The city's leader Lee added that the government would consider amending legal practitioner legislation to assist the committee in deciding whether foreign lawyers can take up national security cases.

"Whether a case involves national security matters is up to the assessment and judgment by the national seucrity committee," Lee told reporters after Beijing's decision.

National security cases are heard and ruled on by a panel of national security judges handpicked by the chief executive.

Hong Kong's courts are guaranteed independence under the city's constitution, the Basic Law, which has been in place since the former British colony was returned to China in 1997. That independence has been a cornerstone of the city's appeal as an international finance hub.

But the interpretation by the National People's Congress Standing Committee, which has the last word on legislation, could undermine the city's judiciary, legal experts say.

"The issue isn't so much about judicial independence, insofar as it still exists, as much as judicial relevance," legal scholar Alvin Cheung at Canada's Queen's University told Nikkei Asia. "It really doesn't matter how independent the [Hong Kong] judiciary is, if it's effectively stripped of the ability to decide on any 'sensitive' issue."

A legal opinion signed by prominent international judicial figures including Robert Buckland, former U.K. solicitor general, and Michael Kirby, former justice of the high court of Australia, cited Beijing's interpretations of the law as one of the main threats to the court's independence and impartiality.

Ronny Tong, a government adviser and lawyer, had a positive view of the decision to give the security committee the last word. In a text message, he said, "As a committee operating within [Hong Kong] it definitely is more attuned to the local situation, so I think it is a good solution to the problem. And eminently in line with the spirits of one country, two systems."

National security police have arrested more than 200 people for various offenses including publishing children's books deemed subversive and chanting protest slogans. So far, seven people have been sentenced to jail for violating the sweeping national security law.

The 29 Principles, a U.K.-based group supporting lawyers working under authoritarian regimes, joined other foreign law associations in voicing their concerns over Hong Kong defendants' rights.

"Such interpretation will violate the doctrine of the separation of powers -- executive, legislature and judiciary," said Chakra Ip, the group's executive direction, adding these powers "should be clearly divided in order to safeguard citizens' liberties and guard against tyranny."
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