Author: Tu Haiming

Shortly after the Court of Final Appeal rejected the Department of Justice’s bid to block British barrister Tim Owen from defending jailed media tycoon Jimmy Lai Chee-ying against his national security charges, Chief Executive John Lee Ka-chiu announced on Monday that he had requested an interpretation of the National Security Law (NSL) for Hong Kong by the Standing Committee of the National People’s Congress to clarify whether overseas legal practitioners can participate in the handling of national security cases.

Lai’s case is by far the most high-profile and complex national security case in Hong Kong since the offense was established with the promulgation of the NSL in June 2020, which will serve as a precedent case for other alleged national security offenses in the future. Therefore, the question of whether a foreign counsel can participate in the handling of Lai’s trial is of great significance that deserves an authoritative clarification that can only be issued by the NPCSC, which enacted the NSL and thus knows the legislative intent of the law better than anyone else. More importantly, an interpretation by the NPCSC is the only legitimate way for disputes over the meaning of NSL provisions to be settled as the power to interpret the law is vested in the NPCSC, according to Article 65 of the NSL.

The legal basis of the court ruling that allows a foreign counsel to defend Lai is Section 27(4) of the Legal Practitioners Ordinance, which allows the court to admit experienced overseas barristers on an ad hoc basis to make representations for their clients before Hong Kong courts.

The thing is, in the case of a national security trial, the involvement of foreign counsels creates a real risk of potential State secrets being leaked as no effective mechanism is in place to enforce the foreign counsels’ confidentiality obligation after they leave Hong Kong. This would endanger the effective enforcement of the NSL and thus defeat its legislative intent.

The Legal Practitioners Ordinance, which allows ad hoc admission of overseas counsels, should in no way prevail over the NSL, a national law enacted by the NPCSC in accordance with China’s Constitution, the Basic Law of the Hong Kong Special Administrative Region, and the NPC’s decision on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security

The Legal Practitioners Ordinance, which allows ad hoc admission of overseas counsels, should in no way prevail over the NSL, a national law enacted by the NPCSC in accordance with China’s Constitution, the Basic Law of the Hong Kong Special Administrative Region, and the NPC’s decision on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security. The NSL is among the 14 national laws that apply in Hong Kong after their insertion in Annex III of the Basic Law according to the Basic Law. A national law is superior to local laws according to the constitutional order that governs the special administrative regions of Hong Kong and Macao. Indeed, Article 62 of the NSL states that “this law shall prevail where provisions of the local laws of the Hong Kong Administrative Region are inconsistent with this Law”.

Article 55 of the NSL also affirms the law’s superiority over the local laws in force in Hong Kong, stipulating that the central government’s national security office in Hong Kong can exercise jurisdiction over a case concerning an offense endangering national security under three specific conditions.

Arguably, it is not the intention of the drafters of the NSL to leave a loophole in the law that will allow the enforcement of the law to be compromised by the involvement of foreign counsels in court trials. This is evidenced by the declared intention of Article 46 of the NSL.

Article 46 stipulates that in criminal proceedings in the Court of First Instance of the High Court concerning offenses endangering national security, the secretary for justice may issue a certificate directing that the case be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of the personal safety of jurors and their family members. Where the secretary for justice has issued the certificate, the case shall be tried by a panel of three judges in the Court of First Instance without a jury.

Like the arrangement of a nonjury trial for some national security cases, the DoJ’s bid to ban overseas counsels’ participation in the handling of national security trials follows the same logic — the need to protect State secrets.

The protection of State secrets is no doubt crucial to safeguarding national security, the very purpose or legislative intent of the NSL. This explains why Chief Executive John Lee has decided to seek the NPCSC’s clarification, braving the anticipated criticism by the usual China-bashers in the West, for whom the NSL has been the bete noire ever since its promulgation in June 2020.

The author is a Hong Kong member of the National Committee of the Chinese People’s Political Consultative Conference and chairman of the Hong Kong New Era Development Thinktank. 

(The views do not necessarily reflect those of Bauhinia Magazine.)

Source: China Daily