China on Friday issued a ruling giving top officials in the Hong Kong government the power to bar foreign lawyers from representing clients in “national security” cases, paving the way for officials to block the appointment of media mogul Jimmy Lai’s British defense barrister.
The National People’s Congress Standing Committee ruled that a national security committee chaired by Chief Executive John Lee has the right to decide whether to allow foreign lawyers to represent clients in cases deemed to involve matters of national security, and that its decisions are binding on the city’s courts.
The ruling comes after Lee asked the Chinese government to rule on whether foreign attorneys could represent defendants in national security cases – and after three failed bids in the city’s courts to get Lai’s British lawyer disqualified.
Lai’s trial on several charges of “collusion with a foreign power” — under a draconian national security law imposed by the ruling Communist Party in the wake of the 2019 protest movement — has been postponed until September 2023. He is currently serving a separate five-year, nine-month jail term for fraud over the subletting of office space at his Next Digital headquarters.
The case, in which Lai had hired British Kings Counsel barrister Tim Owen to lead his defense team, has highlighted concerns that Hong Kong’s promised judicial independence is already rapidly eroding in favor of top-down control by an executive that takes orders from Beijing.
No jury
Lai’s trial, in which much of the evidence centers on opinion articles published in his now-defunct Apple Daily newspaper, will take place with no jury, before a panel of three national security judges handpicked by the government.
Australian lawyer and rights activist Kevin Yam said the move has left the city’s courts with very little role.
“If the courts have to ask the chief executive’s [permission] regarding anything to do with national security, then what is left for the courts to decide?” Yam said. “All they need to do is what the chief executive tells them to do.”
“Now the national security committee gets to decide what is and isn’t a matter of national security in all cases, not just national security cases, but in any other court cases and also in all matters of government policy, without being subject to judicial review,” he said.
“They could claim that pandemic prevention was a matter of national security, or education,” Yam said. “It’s not just about the judicial system.”
“It affects legislation and anything that takes place throughout the entire government system.”
‘Doesn’t play the judge’
John Lee told journalists in Hong Kong that the decision “is of great significance in the further improvement of the legal system and enforcement mechanisms for safeguarding national security of the Hong Kong Special Administrative Region.”
He said the Hong Kong National Security Committee — which he chairs — would examine the issues and make a decision, adding that Beijing’s interpretation hadn’t been intended to address Jimmy Lai’s case specifically.
Lee denied that the ruling had placed the chief executive “above all judges.”
“The Chief Executive doesn’t play the judge at all,” he told reporters.
Hong Kong’s judiciary said in a statement that it respects the “lawful exercise of power” by the National People’s Congress Standing Committee, while Legislative Council president Andrew Leung said the council stood by to “examine in detail” any amendment to Hong Kong law regarding foreign lawyers practicing in the city.
Lee said his administration would likely pass further legislation to ban “a lot other activities that may endanger national security, which are not covered by the Hong Kong National Security Law,” as required under Article 23 of the city’s mini-constitution, the Basic Law.
Undermines the judiciary
Eric Lai, a fellow of Georgetown University’s Center for Asian Law, said the ruling had undermined the judiciary.
“This has created a dual state, an exceptional criminal justice system in which court rulings could be overturned if they do not have the executive power’s endorsement,” Lai told Agence France-Presse.
He also warned that the decision could spill over into cases that aren’t brought under the national security law, but are judged to touch on matters of national security.
He and other legal experts had warned such a decision would damage the independence and reliability of the city’s judicial system, the agency reported.
The Global Times newspaper, which has close ties to Communist Party mouthpiece the People’s Daily, quoted an official in Beijing as saying that the ruling would “set the tone” for similar cases in future.
It also quoted Hong Kong government legal expert Louis Chen as saying that Owen shouldn’t be allowed to represent Lai.
“Lai’s case involved colluding with external forces, engaging in anti-China activities and disrupting order in Hong Kong, which seriously threatens national security and allowing him to hire a foreign lawyer is very inappropriate,” Chen told the paper.
Lee said foreign lawyers were still “most welcome” to represent clients in cases unrelated to national security, providing they obtained the correct permissions beforehand.
Two newspapers backed by the ruling Chinese Communist Party hit out at Lai’s hiring of Owen in November, implying that Beijing could exercise special powers and hold the trial in mainland China.
Lee sought the interpretation from Beijing after Hong Kong’s Court of Appeal ruled on Nov. 21 that Lai should be allowed to hire Owen to defend him on charges relating to “seditious publications,” as well as “collusion with foreign powers to endanger national security,” upholding the decisions of two lower courts.
Translated by Luisetta Mudie. Edited by Malcolm Foster.