Proposal will extend government influence over handling of trials
- The change to the law would hand the decision on whether a foreign lawyer can take on a national security case to the city’s chief executive
Three months have passed since Hong Kong’s top court rejected a bid by the government to prevent media tycoon Jimmy Lai Chee-ying hiring a top British lawyer for his national security trial. But questions still remain about the role played by lawyers from overseas in such cases.
Last week, the Department of Justice proposed simple but significant changes to the law. The amendments remove the power of the courts to determine whether a foreign lawyer is permitted to take on a national security case. Instead, the decision would be made by the chief executive.
The proposal, thankfully, falls short of a total ban on the hiring of foreign lawyers for such cases. But it amounts to the clipping of the judiciary’s wings.
Having failed in court, the government now intends to make decisions on foreign lawyers itself. It is a bit like losing a football match and deciding that, in future, you will also be the referee. There will be no more inconvenient rulings on this issue by pesky courts.
The government is a combatant in national security cases. This latest proposal extends its influence over the handling of trials and further limits the role of the judiciary.
Hong Kong leader to have final say over foreign lawyers at national security trials
Judges in such cases already have to be approved by the chief executive. The Department of Justice can dispense with a jury and decisions of the high-powered national security committee are not subject to judicial review.
There are minimum sentences, a high threshold for bail, and now, under the proposed law change, the court will not even get to decide whether a lawyer from overseas can be hired.
Lai has been denied bail, denied a jury, and will almost certainly be denied the lawyer of his choice. The Court of Appeal was right to stress: “Public perception of fairness in the trial is of vital importance to the administration of justice.”
There were numerous references in the government’s proposal to national security risks “associated with” the hiring of a barrister from overseas. But nowhere does it say what those risks might be.
The courts use well-established criteria to decide whether a foreign lawyer should be admitted. If the chief executive is to make the decision, clear guidelines are needed. Arguments in favour of admitting the lawyer should be fairly considered and an appeal process provided.
Hong Kong is not the only place where tensions arise between national security, judicial independence and the right to a fair trial.
The issue caused controversy in Britain last week, in the case of Shamima Begum. She left the UK as a 15-year-old in 2015 to join the militant Islamic State group in Syria and later turned up in a camp there. A government minister stripped her of her British citizenship on national security grounds, meaning she cannot return to the country and has difficulty challenging the move.
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An appeal commission last week upheld the legality of the minister’s decision, even though it accepted there was credible evidence Begum was a victim of child trafficking and sexual exploitation. Last year, the Supreme Court also ruled against her, stating that her right to a fair hearing does not trump the safety of the public.
The case highlights the potential problems arising when the law leaves such decisions solely in the hands of officials. The minister’s decision to remove Begum’s citizenship was made hastily, amid a media storm. She was not given an opportunity to state her case. Political rather than national security factors drove the outcome, the commission found.
The nature of the Begum case, concerning an alleged terror threat, is far removed from the question of eminent foreign lawyers representing clients in Hong Kong, helping develop the city’s legal system in the public interest. But the issues raised should give food for thought.
Judicial decisions involve the careful and public weighing of arguments on each side and the independent application of established legal principles. Any move to replace this impartial process with government directives should be approached with great caution.
