Restraint needed in use of the power to ban foreign lawyers
- Each application should be considered on its merits and subject to due process, with bans only made after compelling evidence of a security risk
The interpretation of Hong Kong’s national security law by China’s top legislature was intended to clarify whether lawyers based overseas can work on such cases. But the decision raises more questions than it answers. It has far-reaching implications.
Beijing stepped in at the request of the Hong Kong government after the city’s courts said eminent British barrister Timothy Owen could defend media tycoon Jimmy Lai Chee-ying at his trial. Lai is accused of collusion with foreign forces.
Contrary to expectations, no blanket ban was imposed on hiring overseas lawyers for national security cases. No direct reference was made to Lai’s case and the judgment of the courts was not overturned. So far, so good.
But the process has been used to bring the foreign lawyers issue within powers already held by the chief executive and the national security committee he chairs. Beijing has put the ball back into Hong Kong’s court. Officials must now decide how to proceed.
Leading lawyers from overseas have long played a significant role in developing Hong Kong’s legal system. The law on their admission was clear. Seven senior judges, including the chief justice, ruled Owen could represent Lai. The lawyer was described as a renowned specialist and his involvement was said to be clearly in the public interest.
Now, the decision on Owen and others like him will be made by officials. This should not be a black box operation. Each application should be considered on its own merits and lawyers blocked only if there is compelling evidence of a security risk. Reasons should be provided and an appeal process available. These would be important safeguards.
The Bar Association said it expects the chief executive and security committee to exercise their powers in a way that fosters the public’s trust in upholding the rule of law, judicial independence and protection of human rights. It is to be hoped that is the case.
The interpretation referred to the security law’s requirement that courts obtain a certificate from the chief executive on whether a case concerns national security or involves state secrets. This step must now be taken when requests for a lawyer from overseas are made.
How will this work? The provision makes no mention of foreign lawyers. The chief executive could certainly influence the decision by issuing a certificate confirming state secrets are involved. But it should then be for the court to make the final ruling. The Court of Final Appeal said state secrets would be a “highly important and possibly crucial factor which the court would be bound to take into account”.
It accepted, however, the Court of Appeal’s finding that no state secrets were involved in Lai’s case. Even if they were, there is no evidence Owen would breach his duty to keep them confidential. As no certificate was applied for or issued, a determination is now likely to be made by the national security committee.
The interpretation raises broader issues. It has taken the ultimate decision on foreign lawyers away from the courts and placed it in the hands of officials. Secretary for Justice Paul Lam Ting-kwok argues the government is better placed than the courts to decide matters relating to national security. That is open to question.
But how far will this reasoning be taken and to what extent will the powers be used? There is clearly an intention that the new mechanism, involving the chief executive and security committee, will be deployed to resolve other disputes over the national security law. This, presumably, means Hong Kong will not have to run to Beijing for an interpretation every time it can’t get its way in court.
There are, however, many important issues the courts must decide on the implementation of the security law and its impact on human rights. These decisions are best made by independent judges, applying legal principles to the evidence before them. The interpretation should not become a charter for the government to influence such decisions.
There is speculation local laws will be amended to ban all lawyers based overseas working on security cases. Such a drastic, discriminatory step should be avoided.
Confidence in Hong Kong’s legal system will be strengthened if the interpretation is implemented with sensitivity and restraint. The powers of the chief executive and security committee should be used sparingly, leaving decisions on justice to the courts.