Legal experts predict foreign lawyers will be barred from national security cases involving seized assets if Beijing interprets law
- Forecast points to wider scope in changes to law than previously thought, as Chief Executive John Lee asks Beijing to interpret legislation
- If Beijing ends up banning foreign lawyers from arguing in national security cases, it could go beyond four offences listed under law, experts say
Foreign lawyers will be barred from dealing with cases involving assets seized under the national security law and sedition trials should Beijing grant an interpretation sought by the Hong Kong government on the legislation, experts based locally and beyond have predicted.
Their forecast points to a far wider scope in changes to the law than previously thought as underscored in the case of media tycoon Jimmy Lai Chee-ying, whose bid to hire British King’s Counsel Timothy Owen has prompted the Hong Kong government to seek a clarification from Beijing.
Chief Executive John Lee Ka-chiu has painted the request as a matter of great importance under national security, saying the present mechanism failed to put in place a safeguard that shielded overseas lawyers from undue influence from their own country, which could be hostile towards the city. Their access to state secrets was also a concern, he added.
A day after he filed the request to Beijing, Lee on Tuesday instructed Secretary for Justice Paul Lam Ting-kwok to ask the court to put Lai’s trial, originally slated for Thursday, on hold for a week pending the latest development.
Lai’s case is concerned mostly with charges of collusion with foreign forces, one of four offences under the national security law, with the other three being secession, subversion and terrorism.
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But several legal experts whom the Post spoke to have concluded – or least left open the possibility – that if Beijing ended up banning foreign lawyers from arguing in national security cases, it could go beyond the four offences.
“The Hong Kong court has explained in the past that crimes endangering national security have gone beyond the four offences,” Albert Chen Hung-yee, a legal scholar at the University of Hong Kong (HKU), said.
Under the Beijing-decreed legislation, procedures, such as the standard for granting bail and police investigation powers, apply to any “cases concerning offence endangering national security”.
As an example, Chen cited the sedition offence, a colonial-era charge prosecutors have also been using. Under this charge, defendants were subjected to the same higher standard faced by those in national security law cases in applying for bail.
Chen added a possible ban on foreign lawyers would apply to litigation arising from the freezing of assets in national security cases.
The secretary for security has the power to freeze property under an implementation rule within the legislation.
“It’s not clear how far new limits on participation of foreign counsel will extend. It’s possible that foreign counsel will be barred from all aspects of national security law cases, and even from participation in sedition cases, which are emerging as a sort of national security law-lite type offence,” said Thomas Kellogg, executive director of the Centre for Asian Law at Georgetown University in the United States who studies the Hong Kong situation.
He called the move a “worrying precedent”, even though he noted Lee’s public comments that the government had no intention of extending the arrangement to foreign judges serving in Hong Kong.
Michael Davis, a fellow at the Woodrow Wilson International Centre in Washington, also raised concerns, pointing to how the national security law had so far been used in both civil and criminal matters.
“We should be concerned about the business environment as well. If a firm is advising business clients on doing business in Hong Kong, they will presumably have to advise them that they may lose the benefit of their usual legal team if a national security matter is raised. Would such a firm be nervous about even doing business in the city?” the former HKU law professor said.
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But Hong Kong Senior Counsel Ronny Tong Ka-wah, who is a member of the government’s advisory Executive Council, stressed it was important for the chief executive to clarify the matter with Beijing.
“If a Hong Kong lawyer has violated the national security law or failed to meet the requirements, the [Bar Association or the Law Society] can follow up and they will investigate and punish the lawyers practising in Hong Kong,” he said.
“But if they are lawyers from outside, they do not belong to these two bodies and can go back to Britain after working on a case. I don’t think it’s possible to follow up, investigate or even punish them if problems arise.”
Lee on Tuesday stressed Hong Kong played an important constitutional role in safeguarding national security and that he would like to resolve the matter with “far-reaching implications” through the established legal framework. “I think the decision is necessary,” he said.
What remained unanswered, however, was which exact provision should the National People’s Congress (NPC) Standing Committee, China’s top legislative body, be interpreting.
Former HKU scholar Johannes Chan Man-mun said the national security law lacked a provision on foreign lawyers.
“The standing committee has the right to interpret the national security law. But when there is nothing in the law on this, the interpretation is in practice making of a new rule rather than an interpretation of an existing law,” he said.
Pro-Beijing heavyweight Maria Tam Wai-chiu, a lawyer by trade, said the legislative intent had always been clear, adding it was to prevent any act that could endanger national security and oppose foreign individuals and bodies in their attempt to interfere with the internal affairs of the city.
When asked which specific clauses would be interpreted, the city leader Lee did not give an answer.
“At the present moment, I’m only requesting for an interpretation of the law to address my question. How eventually that interpretation will be, will be a decision by the [standing committee],” he said on Tuesday.
Additional reporting by Rachel Yeo
