Hong Kong Chief Executive John Lee Ka-chiu has made a request for an interpretation of the National Security Law for Hong Kong by the Standing
Committee of the National People’s Congress to clarify whether an overseas lawyer, who’s not qualified to practice generally in Hong Kong, can handle national security cases.
Thus, the chief executive’s move to seek a legislative interpretation over the issue is, undoubtedly, reasonable and justifiable.
The move came after high-profile anti-China businessman and media mogul Jimmy Lai Chee-ying successfully persuaded Hong Kong’s High Court and the Court of Final Appeal to allow him to be represented by UK barrister Tim Owen KC, in his trial for colluding with foreign forces to endanger national security.
I do understand the concerns of some people who question the chief executive’s move. People always prefer certainty; and a legislative interpretation, more likely than not, would trigger controversy, partly because of the difference between the two different law systems. Beijing is well aware of it and that’s why, in the past 25 years, the NPCSC had used its power only five times, and in a very restrained manner.
It would be the sixth time if such an interpretation is made as requested. It’s a reasonable and justifiable move from both the social and legal points of view.
First, the Basic Law protects Hong Kong people’s right to choose lawyers and allows foreign lawyers to represent cases on an ad hoc basis. However, in the case of a trial concerning national security offenses, the involvement of an overseas counsel could create a huge risk of potential State secrets being leaked.
Article 63 of the NSL stipulates that a lawyer serving as a defense counsel or legal representative shall keep confidential State secrets, which he or she comes to know in handling a case concerning the offense of endangering national security.
We have to face the reality that in most national security cases in Hong Kong, especially significant ones, elements of Western countries are often involved. If an overseas barrister were to represent a defendant in a national security case in the special administrative region, there would be strong skepticism from Hong Kong’s general public that he or she could leak confidential information gained from handling the case after leaving the city. Such confidential information could include how China’s national security authorities work, or in what way China’s intelligence agencies gather information. This would undermine China’s national interests.
I personally would like to believe in a senior counsel’s professional ethics. But, if the foreign counsel’s home country is implicated in the court case, he or she would come under great pressure from some quarters of society back home. This will also potentially hurt the legal sector’s professionalism, which may affect the outcome of the trial. Thus, the chief executive’s move to seek a legislative interpretation over the issue is, undoubtedly, reasonable and justifiable.
Second, in almost all former British colonies, such as Australia, New Zealand, India, Malaysia, Singapore and South Africa, courts no longer allow British barristers to represent a client. These countries uphold their sovereignty and see judicial independence as an integral part of sovereignty.
Admittedly, Hong Kong has its uniqueness. As an international financial center and Asia’s world city where East meets West, it has some unique institutional arrangements. Moreover, the central government has given the SAR the privilege of maintaining its social systems and old practices, and allowing foreign lawyers in Hong Kong courts is one of those practices.
However, national security is a matter of utmost importance. It’s the “core of the cores” concerning a country’s sovereignty, security and national interests. No country will allow another nation to interfere in it.
Think about it. Would a UK court allow lawyers from China to represent a defendant in a national security case? In this sense, the request for an NPCSC interpretation is, indisputably, fair and justified.
Thirdly, allowing foreign lawyers to handle cases in Hong Kong is a practice left over from history. When the law on legal representation was enacted, Hong Kong then didn’t have enough qualified legal professionals. Even in the 1970s, Hong Kong only had less than 100 barristers. But now the SAR’s legal resources are at a totally different level. The number of registered barristers in the city has exceeded 1,500, and there are more than 100 senior counsels. We now have more than enough qualified barristers to handle local lawsuits.
For the NSL, it’s a new law with no precedent to refer to, and all lawyers are at the same starting line. Furthermore, the NSL is based on Chinese, so there’s no need to hire a foreign lawyer.
In this sense, the dispute over the admission of overseas counsels may be an opportunity for Hong Kong to review its law books to reflect the current situation.
After all, the NSL embodies important rule of law principles that are practiced in both civil law and common law jurisdictions. Let’s be honest — there would be some glitches when the law is implemented. Jimmy Lai, by adopting various tactics, is likely to play around with the difference between the two legal systems, and try to humiliate China in what may be his last anti-China “legacy”.
He also knows that if he blows up the matter further, making it more difficult for Hong Kong courts to handle, he may have to be sent to the Chinese mainland to face trial under the NSL. And, that may potentially spark an international “outcry”. Therefore, I believe that by making a request for an interpretation by the NPCSC, the chief executive is also trying to keep the case in Hong Kong’s courts, and show the world how local courts can handle a major national security case professionally.
But no matter who represents Jimmy Lai, let the case be dealt with by a Hong Kong court of law. Let the case be an example for the world that, despite the turbulence Hong Kong had gone through in the past few years, the SAR’s rule of law remains robust and has never been changed. This is the most important thing, more important than winning or losing a case.
The author is a member of the Guangdong Province Zhongshan City Committee of the Chinese People’s Political Consultative Conference, executive vice-chairman of the Hong Kong CPPCC Youth Association, and vice-chairman of the Hong Kong Y Elites Association.
The views do not necessarily reflect those of China Daily.