Beijing hands Hong Kong final say on allowing foreign lawyers in security trials

Standing committee clarified two clauses of law after city’s top court upheld earlier ruling that allowed jailed tycoon Jimmy Lai to hire British barrister for his pending trial.

China’s top legislative body has left it to Hong Kong’s leader and a relevant committee to decide whether a defendant in a national security trial should be allowed to use a foreign lawyer in a significant interpretation of the city’s Beijing-imposed law.

In clarifying two clauses of the law after Hong Kong’s top court upheld an earlier ruling that allowed jailed media tycoon Jimmy Lai Chee-ying to hire a British barrister for his pending national security trial, the National People’s Congress (NPC) Standing Committee on Friday did not ban foreign lawyers as widely expected.

Instead, it decided the city’s courts would need the approval of the chief executive or the committee on safeguarding national security to allow the participation of foreign lawyers, while also concluding that those without full credentials in Hong Kong might well pose a risk to national security in relevant cases.

Subsequent decisions by the chief executive or committee could not be open to judicial challenges, Beijing also ruled.

Welcoming the decision in a late-night press conference, Chief Executive John Lee Ka-chiu said Beijing had clarified that Hong Kong’s courts would have to obtain certification from him on whether cases involved national security interests, as stipulated under Article 47 of the law, or approval from the safeguarding committee under another provision.

“The interpretation of Article 47 does not create extra power for the chief executive in such certification,” said Lee, who also chairs the safeguarding committee.

Chief Executive John Lee.

Lee brought up the possible need to amend the Legal Practitioners Ordinance in light of the NPC ruling but stressed it would not affect foreign lawyers handling cases unrelated to national security.

“[They] are still welcome in Hong Kong, as these lawyers will not be affected by any such changes,” he said. “The affected scope is limited, as most cases in Hong Kong are not related to national security.”

Foreign lawyers registered in Hong Kong should also rest assured, he added.

Lee shrugged off any concerns about the impact on the city’s judicial system, saying the legal interpretation from Beijing had complied with the principles of the rule of law.

“The interpretation fully demonstrates the rule of law and the judicial spirit of having different parts of the legal system executing their own duties,” he said.

“The interpretation clearly shows the link and compatibility between the national security law and Hong Kong’s current common law system.”

In explaining its decision, the standing committee said in a statement that the issue of hiring overseas lawyers should be decided by Hong Kong’s chief executive, who has the authority to issue a certificate under Article 47.

“If the courts of the Hong Kong Special Administrative Region have not made a request to obtain such a certificate from the chief executive, the Committee for Safeguarding National Security would have to make a decision based on the situations and questions which arise in accordance with Article 14 of the national security law,” it said.

The NPC Standing Committee clarified two clauses of the national security law.

Article 14 lists the duties and functions of the Committee for Safeguarding National Security, which includes formulating relevant policies, advancing the development of the legal system and coordinating relevant operations.

At issue was whether the law allowed lawyers registered in other jurisdictions to come to the city to handle national security cases.

It was sparked by a request by Lai, former boss of now-defunct newspaper Apple Daily, to have British King’s Counsel Timothy Owen represent him in his trial on charges of colluding with foreign forces, originally scheduled for last month.

The government had sought to block his bid in court but failed, and subsequently turned to Beijing for a decision. Lai’s case has since been adjourned to September 25 next year.

Media mogul Jimmy Lai.

A spokesman for the standing committee’s Legal Affairs Commission said in another statement that the interpretation was conducive to “clarifying the meaning of relevant provisions, and the basis for applying the law”, as well as “solving major disputes encountered in the implementation of the Hong Kong national security law”.

“[It] brought about positive effects in Hong Kong residents’ proper exercise of their rights in choosing lawyers in accordance with the law, and Hong Kong’s proper exercise of independent judicial and adjudication power,” he said.

“There will not be an undermining of Hong Kong’s high degree of autonomy.”

A spokesman for the central government’s Office for Safeguarding National Security in Hong Kong said the interpretation had immense meaning on accurate implementation of the legislation in the city.

Hong Kong’s judiciary said in a statement it respected the lawful exercise of power by the standing committee to make the legally binding interpretations regarding the city’s performance of its duties in safeguarding national security.

Jimmy Lai wanted to hire barrister Timothy Owen (right).

The judiciary said it would “continue to effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with law” as required by Article 3.

It also added that in the exercise of its independent judicial power under the Basic Law – including that of final adjudication – it would impartially perform its judicial functions and handle cases involving national security accordingly.

In a statement, Legislative Council president Andrew Leung Kwan-yuen affirmed the standing committee’s power of interpretation. He said its decision further strengthened the “primary responsibility” of the safeguarding committee in upholding national security.

He noted that if the Hong Kong government decided to submit a draft to amend the Legal Practitioners Ordinance, the legislature would “definitely consider the relevant provisions carefully”.

Tam Yiu-chung, Hong Kong’s sole delegate to the NPC Standing Committee, said Beijing’s resolution provided a mechanism to resolve similar problems in the future.

“It also relieved society’s concerns over foreign forces’ interference in Hong Kong’s affairs and its endangerment to national security,” he said.

Legal scholar Albert Chen Hung-yee, who specialises in constitutional law at the University of Hong Kong, noted that Beijing had focused on defining procedural matters, arguing that the move had spared Hong Kong from any damage to its rule of law.

“It has exercised restraint in a way that is not contrary to the ruling of the court,” he said, adding that Lai’s case was likely to be decided by the committee as the court had not sought a certificate from Lee in the present case.

Professor Lin Feng, acting dean of City University’s law school, described it as a “clever” decision that avoided the problem of amending the legislation through interpretation, as well as overruling the city’s top court.

“It has left the issue for Hong Kong to deal with,” he said.