Chief executive’s rulings to govern all cases, criminal and civil, related to national security, Department of Justice proposes.
Hong Kong courts will need the city’s leader permission before a foreign lawyer is allowed to take on a national security case and they will have to reject an application if the chief executive ruled against it, according to landmark legal amendments proposed by the Department of Justice.
The chief executive’s rulings, to be issued as certificates, would govern all cases, criminal and civil, related to national security, according to the legislative document made public on Monday.
The amendments were prepared after a legal interpretation handed down by the National People’s Congress Standing Committee, China’s top legislative body, in December.
The interpretation, which left decisions in Hong Kong’s hands, came
after media tycoon Jimmy Lai Chee-ying hired British King’s Counsel
Timothy Owen to represent him at his trial on national security charges.
Media tycoon Jimmy Lai’s bid to be represented by a British barrister at
his national security trial sparked legal amendments to give the chief
executive the final say on the use of overseas lawyers in sensitive
Lai on Monday applied to the Court of First Instance to ask it to declare that it would not let Beijing’s interpretation – which came after an earlier Court of Final Appeal decision sided with the defendant – affect his chances of keeping Owen as his counsel.
Lai’s legal team also asked the court to obtain a more general certificate from the chief executive to decide if his case would involve national security elements for any overseas lawyer he hired.
The suggested amendments to the Legal Practitioners Ordinance, which will be introduced on February 27 at a meeting of the Legislative Council’s legal panel, said the chief executive would weigh whether to issue the certificate based on national security considerations and if it “would be contrary to the interests of national security”.
Judges would have to apply for a certificate in cases concerning national security, including offences other than the four – secession, subversion, terrorism and collusion with foreign forces – identified in the Beijing-imposed 2020 national security law if the amendments are approved.
“The court must not admit the person as a barrister for the case concerning national security if the court receives a chief executive’s certificate certifying that the person’s practising or acting as a barrister for the case involves national security and would be contrary to the interests of national security,” the document said.
But the Department of Justice maintained that the proposed changes would “not have adverse implications on the rule of law, the court’s independent judicial power … and the parties’ right to choose their legal representation and the right to a fair trial”.
“It does not take away any lawful right of defendants in criminal cases as there has never been any right to be represented by overseas counsel,” the Legco document said.
It added that the number of cases that involved national security was small and the changes, if approved, would not affect many defendants.
Beijing made its first interpretation of the national security law, introduced in June 2020, on December 30 last year.
Hong Kong inherited a common law system from its former status as a British colony.
The city retained a mechanism after its return to Chinese rule which allows lawyers from other common law jurisdictions, mostly the United Kingdom, to appear in cases on a one-off basis if approved by the courts.
But Beijing’s interpretation laid down that the appearance of overseas lawyers in national security cases would be a matter for the chief executive and the Committee for Safeguarding National Security to decide.
Beijing was only brought into the picture after the city’s Court of Final Appeal ruled in favour of Lai last November, which led Lee to ask for an interpretation from the National People’s Congress Standing Committee, the country’s top legislative body.
The chief executive later said he would work on amendments to the Legal Practitioners Ordinance to create a system that reflected Beijing’s decision.
The Bar Association and the Law Society, the city’s two largest legal bodies, are studying the proposed changes.
“At this stage we note that the government is not seeking a complete ban on overseas counsel being admitted in cases involving national security and this is in line with the views we expressed previously,” Bar Association chairman Victor Dawes said.
He added the association would comment on the amendments in detail after a it had completed its examination.
Barrister Ronny Tong Ka-wah, an adviser to the government on the Executive Council, said he welcomed the proposals and that he had maintained a blanket ban was not needed.
He added that the current approach to legislative amendments had avoided a direct overturning of the court’s earlier decision on Lai’s case, which was seen by some as a move to preserve the court’s authority.
Simon Young Ngai-man, a legal expert at the University of Hong Kong, said it made sense for Lai’s lawyers to reapply to the court for confirmation of Owen’s position.
He added it would be good for the matter to be brought back to the courts for a new ruling because of the changed circumstances.
Young added legislative reform could also be “desirable” because it would set out clear criteria to cover future cases.