Secretary for Justice Paul Lam says move will not ‘usurp’ court’s function after Beijing gives chief executive final say on whether overseas lawyers can take on security cases.
Granting Hong Kong’s leader a conclusive say on whether overseas lawyers can take part in national security trials will not usurp the function of the courts or in any way undermine the rule of law, the city’s justice minister has said, mounting a vigorous defence of Beijing’s interpretation of the legislation it imposed.
The executive branch was in a “better position” than the judiciary to decide such matters, Secretary for Justice Paul Lam Ting-kwok wrote on Saturday, arguing that overseas lawyers without any “substantial connection” should be banned from taking on cases involving national security.
A day after China’s top legislative body interpreted the law for the first time, leaving it to Hong Kong’s chief executive and a relevant committee to decide whether foreign lawyers should be allowed to participate in national security trials, the justice chief reiterated that they could still apply to represent parties in civil or criminal cases not involving national security.
Chief Executive, John Lee.
The interpretation by the National People’s Congress (NPC) Standing Committee was in response to the city’s top court upholding a lower court ruling that jailed media tycoon Jimmy Lai Chee-ying should be allowed to hired a British barrister to defend him in his coming trial on charges of collusion with foreign forces.
A source said Timothy Owen, the British King’s Counsel hired by Lai for his national security trial, would return to Hong Kong to act for another client in a Court of Final Appeal hearing scheduled for January 18. A check by the Post found the client’s name on Owen’s case list posted on his personal website. The case is not related to national security.
But some legal experts were unconvinced by the government’s reassurance that the interpretation would not allow the executive branch to interfere in national security trials. They referred in particular to a lack of clarity for courts in deciding under what circumstances they should seek certification from the chief executive when assessing national security implications.
The NPC Standing Committee clarified two clauses of Hong Kong’s national security law for the first time since the legislation was imposed in 2020 to ensure there would be no repeat of the violent anti-government protests of 2019.
Under one of the interpreted clauses for Article 47 of the law, courts have to obtain a certificate from the chief executive to verify whether an offence involves national security or whether the relevant evidence features state secrets when such questions arise in the adjudication of a case.
According to the ruling, determining if overseas lawyers can take sensitive cases falls under Article 47 of the law and requires the chief executive’s input.
The top legislative body said the city’s Committee for Safeguarding National Security would make an “evaluation and decision” if the courts had made no such request for a certificate, and its decision could not be challenged by any judicial review under Article 14.
“It is still for the court to decide on other issues and the outcome of the case. The chief executive does not usurp the function of the court,” Lam wrote.
“The arrangement in this respect does not impair the independent judicial power of the Hong Kong courts guaranteed by various provisions in the Basic Law,” he added, referring to the city’s mini-constitution.
Lam also defended putting the national security committee’s decisions beyond any legal challenge, arguing the courts were ill-equipped to oversee matters in which they lacked expertise, such as assessing national security risks.
He said given that the court had not obtained a certificate from the city’s leader in the current case in question, the committee for safeguarding national security would step in.
Lam noted there were “serious suggestions” that the Legal Practitioners Ordinance should be amended so overseas counsel not qualified to practice in Hong Kong would no longer be entitled to apply for ad hoc admission to participate in cases involving national security.
The legal row first emerged when Lai, founder of the now-defunct Apple Daily, sought to have Owen represent him in his national security trial scheduled for September 25.
Taking the matter to the court, authorities were unsuccessful in blocking Lai’s bid and subsequently said they would turn to central authorities to interpret the national security law.
Johannes Chan Man-mun, former law dean at the University of Hong Kong (HKU), said while Beijing might have attempted to soften the impact by not directly barring foreign lawyers from national security trials, the solution “creates more problems than it has solved.”
He argued that the interpretation extended the power to certify evidence into a power to decide a substantive legal question.
“Whether an overseas lawyer can be admitted has nothing to do with evidence as such,” he told the Post. “How could the court know what question requires a [chief executive’s] certificate?”
Simon Young Ngai-man, associate dean of research at HKU’s law faculty, echoed that concern, finding the interpretation “substantially lacking” in defining the limits of executive authority under Article 14 and the scope of the court’s duties under Article 47.
The Hong Kong Bar Association noted in a statement on Saturday that the powers of the executive branch had “important ramifications” on the right to a fair trial and the perception of fairness in a trial, which were of fundamental importance to the rule of law in the city.
“We expect that the [chief executive] and the committee will exercise their power in a way that fosters the public’s trust in upholding the rule of law, judicial independence and protecting human rights as enshrined in the Basic Law,” the association said.
But Basic Law Committee vice-chairman Maria Tam Wai-chu argued that such executive powers highlighted by Beijing had long been prescribed by the national security law and the confusion was only over the boundaries of executive and judicial powers.
Both Chief Secretary for Administration Eric Chan Kwok-ki and the Executive Council’s non-official members also issued statements on Saturday to express support for Beijing’s decision.
The Law Society of Hong Kong reaffirmed that it was “trite law” that the NPC Standing Committee held the power to interpret the national security law, and acknowledged that the legislative intent of a number of provisions in the law had been clarified.
The national security law targets crimes of secession, subversion, terrorism and collusion with foreign forces. Under the legislation, the drafters gave the country’s top legislative body the right to interpret it.