After the turmoil of the COVID-19 pandemic and China’s imposition of the national security law (NSL), the Hong Kong government is anxious about the city’s attractiveness to foreign investment. They hosted a series of forums and summits to promote Hong Kong’s return to “business as usual.” They also organized numerous propaganda campaigns and roadshows to tell “a good Hong Kong story.” Their aim appears simple: to convince the global community that the city remains an attractive place for investment despite China’s economic downturn, especially after the zero COVID policy.
Can Hong Kong remain attractive to the global community? For some investors and business corporations, the answer is yes – as long as they are comfortable doing business with authoritarian regimes that have a habit of arresting and charging citizens with national security crimes that are vaguely defined and arbitrarily applied.
But Hong Kong’s attractiveness used to rely on the quality of rule of law in the city, including the state of judicial independence, fair trial, and due process. Considering the government’s proposal on amending the Legal Practitioner Ordinance of the city, it is doubtful whether the Hong Kong authorities are willing to keep their words and deeds consistent.
The Legal Practitioner Ordinance is a regulatory tool to govern and admit legal professionals in Hong Kong. It allows the court to admit overseas lawyers with substantial advocacy experience but without full qualification in Hong Kong to engage in criminal trials and civil litigations with certain conditions. The new bill proposes to diminish the court’s jurisdiction to the admission of overseas lawyers in local cases if those cases are considered “concerning national security.”
Why did the government propose the amendments? Last year, after the city’s top court admitted Timothy Owen KC to represent Apple Daily founder Jimmy Lai for his national security trial, the Hong Kong government disapproved of the decision and sought Beijing’s help. The National People’s Congress Standing Committee thus released the first interpretation of the National Security Law (NSL), confirming that admission of overseas lawyers (without full qualification in Hong Kong) to participate in national security cases is a matter that needs confirmation from the chief executive. The interpretation also empowered the national security committee in Hong Kong to judge and make decisions over issues that the court has decided on if they haven’t sought a confirmation certificate from the chief executive in advance.
The Hong Kong government did not choose to immediately overturn the court’s decision to admit Owen to defend Lai. Nevertheless, the immigration department put Owen’s working visa on hold, even though the court’s admission decision remains. The government further amended the local law to intervene in the court and legal proceedings more arbitrarily.
The amendments suggest that, in principle, all overseas lawyers must not be admitted as barristers for a case concerning national security. Yet neither the NSL nor this proposed amendment bill provides definitions and boundaries for national security cases. From a legal standpoint, the idea of “national security” is vague and overbroad, with no definition of what constitutes “cases concerning national security.”
The bill provides an exception: If the chief executive “has sufficient grounds for believing that the person’s practicing or acting as a barrister for the case does not involve national security or would not be contrary to the interests of national security,” they could issue a certificate to admit overseas lawyers to handle cases concerning national security. But this provision does not resolve the issue of the vagueness of the idea of “national security.” It only demonstrates that the chief executive, instead of the court, has the power to decide whether a defendant can freely choose their own legal representative.
Following the amendment bill, the secretary for justice, as the head of the Department of Justice in Hong Kong, is empowered to intervene in the ad hoc admission of overseas lawyers. Even if the authorities did not consider a specific case to be related to national security at the beginning, the secretary for justice can, during the trial, request a certificate from the chief executive to re-examine if the case concerns national security, and then consider whether overseas legal representation could continue to defend the case.
The impacts of the proposed amendments would affect both civil and criminal cases, including cases concerning commercial disputes. Imagine if there was a commercial dispute between a Western company and a Chinese state-owned enterprise in Hong Kong, and eventually, that dispute was taken to court. The chief executive could refuse to admit an overseas barrister to take part in that case if the government considered the case as concerning national security, however they define that concept. Such intervention could happen before the formal litigation or during the litigation.
It would be difficult to argue that the rule of law principle of certainty remains in such a scenario, as the authorities could take steps to intervene in the choice of lawyer at virtually any stage in a commercial case.
The impact of the amendment bill in criminal trials is more apparent. In theory, the chief executive could permit the ad hoc admission of an overseas lawyer to join the prosecution while at the same time rejecting the defendant’s application to admit an overseas lawyer as a legal representative. The law does not require the chief executive to give a public justification for the decisions, and the decisions are exempted from judicial review.
The intervention of the chief executive in a matter that the court fully decided does not demonstrate a good standard of judicial independence and fair trial. The court used to decide the ad hoc admission of overseas lawyers on the basis of merit. Now the decision could be fully based on political cause.
The Hong Kong Bar Association also expressed their concerns on the impacts of civil litigations and the definition of national security in light of the amendment bill. After all, safeguarding the rule of law and judicial independence does not rely on slogans and road shows. When the bill is passed, and the chief executive enjoys such arbitrary powers, it will be an embarrassment for the Hong Kong Bar, which has been enthusiastically persuading its audience in the West that Hong Kong could uphold the rule of law and judicial independence like before.
As long as the city’s legal architecture continues to weaken the separation of powers and reinforce the extensive, unchecked powers of the executive government, it doesn’t contribute to telling “a good Hong Kong story” to the global community. It only tells the world that the government can always intervene in legal cases in the name of national security to achieve a political end.
This “good Hong Kong story” may, after all, be an attempt to solely please the Chinese authorities, which do not appreciate the Western ideas of judicial independence and separation of powers.
(Published in the Diplomat, 27 March 2023)
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