Following the uproar caused by the COVID-19 pandemic and China’s imposition of the National Security Law (NSL), the Hong Kong government is concerned about the city’s attractiveness for foreign investment.
They organized a series of forums and summits to promote Hong Kong’s return to “normalcy”. They also organized numerous propaganda campaigns and tours to tell “a good Hong Kong story”. Their goal seems simple: to convince the world community that the city remains an attractive place to invest despite the Chinese economic downturn, especially after the zero COVID policy.
Can Hong Kong remain attractive to the world community? For some investors and companies, the answer is yes, as long as they feel comfortable doing business with authoritarian regimes who are in the habit of arresting and accusing citizens of crimes against national security loosely defined and arbitrarily applied.
But Hong Kong’s attractiveness used to depend on the quality of the rule of law in the city, including a state of judicial independence, fair trials and due process. Taking into account the proposal of the Government of amend the City Bar Ordinanceit is doubtful that the Hong Kong authorities are willing to maintain consistency between their words and their deeds.
The Lawyers Ordinance is a regulatory instrument to regulate and admit legal practitioners in Hong Kong. It allows the court to admit foreign lawyers with extensive legal experience, but without full qualification in Hong Kong, to participate in criminal trials and civil litigation under certain conditions. The new bill proposes to reduce the jurisdiction of the court to the admission of foreign lawyers in local cases if such cases are considered “relating to national security”.
Why did the government propose the amendments? Last year, after the city’s highest court admitted Timothy Owen KC to represent Apple Daily founder Jimmy Lai in his trial for national security crimes, the Hong Kong government disapproved of the decision and sought help from Beijing.
Thus, the Standing Committee of the National People’s Congress published the first interpretation of the National Security Law (NSL), confirming that the admission of foreign lawyers (not fully qualified in Hong Kong) to participate in national security cases is a matter that needs confirmation from the Chief Executive. The interpretation also empowered Hong Kong’s national security committee to adjudicate and make decisions on matters the court has decided if they have not previously applied for a certificate of confirmation from the chief executive.
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The Hong Kong government did not choose to immediately overturn the court’s decision to admit Owen to defend Lai. Nevertheless, the immigration department placed Owen’s work visa on hold, although the court’s admission decision stands. The government also changed local law to intervene in court and legal proceedings more arbitrarily.
Hong Kong’s attractiveness used to depend on the quality of the rule of law in the city, including the state of judicial independence, fair trials and due process.
The amendments suggest that, in principle, all foreign lawyers should not be admitted as lawyers for a case related to national security. However, neither the NSL nor this proposed amendment establish definitions and limits for national security cases. From a legal point of view, the idea of ”national security” is vague and overly broad, with no definition of what constitutes “national security cases”.
The bill provides for an exception: If the chief executive “has sufficient grounds to believe that the exercise or performance of the person as a lawyer in the case does not affect national security or would not be contrary to the interests of national security “, could issue a certificate to admit foreign lawyers to handle cases involving national security. But this provision does not resolve the issue of the vagueness of the idea of ”national security.” It only shows that the chief executive, rather than the court, has the power to decide whether a defendant can freely choose his own legal representative.
Following the draft amendment, the Justice Secretary, as head of the Hong Kong Department of Justice, is empowered to intervene in the ad hoc admission of foreign lawyers. Even if the authorities did not initially consider a particular case to be related to national security, the Secretary of Justice may, during the trial, request a certificate from the chief executive to re-examine whether the case is related to national security and then consider whether foreign legal representation can continue to defend the case.
The implications of the proposed amendments would affect both civil and criminal matters, including cases involving commercial litigation. Imagine that a business dispute occurred between a Western company and a Chinese state-owned company in Hong Kong, and that dispute eventually went to court. The Chief Executive could refuse to admit a foreign lawyer to intervene in that case if the Government considers that the matter affects national security, whatever the definition given to that concept. Such intervention could occur before or during formal litigation.
It would be difficult to argue that the security principle of the Rule of Law holds in such a scenario, since the authorities could take steps to intervene in the choice of lawyer at practically any stage of a commercial matter.
The impact of the amendment bill on criminal proceedings is more evident. In theory, the chief executive could allow the ad hoc admission of a foreign lawyer to join the prosecution and, at the same time, reject the defendant’s request to admit a foreign lawyer as legal representative. The law does not require the Chief Executive to publicly justify his decisions, which are exempt from judicial control.
The amendments suggest that, in principle, all foreign lawyers should not be admitted as lawyers for a case related to national security.
The intervention of the chief executive in a matter that has been fully resolved by the court does not demonstrate a good level of judicial independence and fair trial. The court used to decide the ad hoc admission of foreign lawyers based on their merits. Now the decision could be based entirely on a political cause.
The Hong Kong Bar Association he also expressed concern about the repercussions of civil litigation and the definition of national security in light of the proposed amendment. After all, safeguarding the rule of law and judicial independence does not depend on slogans and traveling shows. When the bill is passed and the Chief Executive enjoys such arbitrary powers, it will be a shame for the Hong Kong Bar Association, which has been enthusiastically convincing to your audience in the West that Hong Kong could uphold the rule of law and judicial independence as before.
As long as the city’s legal architecture continues to weaken the separation of powers and reinforce the broad and unchecked powers of the executive government, it will not contribute to telling “a good Hong Kong story” to the world 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 please only the Chinese authorities, who do not appreciate Western ideas of judicial independence and separation of powers.
Note: The article was originally published in English in The Diplomat. The reproduction of the same in Spanish is done with the proper authorization. Link to the original article: https://thediplomat.com/2023/03/hong-kong-is-trying-to-salvage-its-image-who-is-it-fooling/
Visiting Fellow at King’s College London’s Dickson Poon School of Law and Non-Resident Fellow at the Georgetown Center for Asian Law.
