Banning overseas lawyers from security cases a drastic step

Such a move would come at a critical time and send a message that Hong Kong does not trust foreigners – even eminent barristers

The unprecedented move to ban overseas lawyers from handling national security cases in Hong Kong tells us much about the transformation of the city in recent years.

These lawyers are leading lights in their profession with international reputations. They have, over many years, made a valuable contribution to the city’s legal development. But, it seems, they are not to be trusted with national security cases.

Last week, Hong Kong’s top court rejected a government bid to stop media tycoon Jimmy Lai Chee-ying from being represented at his collusion trial by British barrister Timothy Owen. That decision highlighted the judiciary’s independence. It should have been the end of the matter. But Chief Executive John Lee Ka-chiu quickly announced he would ask Beijing to issue its first “interpretation” of the national security law it passed in 2020. The ruling is expected to effectively overturn the court’s ruling and impose a general ban on lawyers based overseas working on national security cases. It is a drastic step.

Seven senior judges in four hearings have rejected the government’s arguments. Chief Judge of the High Court, Jeremy Poon Shiu-chor, described Lai’s case as being of “immense importance” and ruled Owen’s involvement to be clearly in the public interest. The British lawyer, with rich experience in criminal and human rights law, would “undoubtedly add a significant dimension to the case”, he added.

The Court of Appeal agreed, saying the public perception of fair play was vital to the administration of justice, especially in a highprofile case. The government then changed strategy, advocating a “radical new approach”. A ban on all overseas lawyers working on national security cases was proposed, except in exceptional circumstances.

It was suggested the involvement of renowned foreign lawyers would defeat the aim of the national security law to prevent interference by foreign forces in Hong Kong affairs. The lawyers, it was said, might disclose state secrets. These arguments were, understandably, given short shrift by the judges. The Court of Appeal described them as unprincipled, untenable and not reasonably arguable. There was no suggestion state secrets were involved in Lai’s trial.

The top court refused to consider the new points at that late stage. It said the arguments raised “undefined and unsubstantiated issues”. The suggestion foreign lawyers would bring interference “cries out for elaboration and evidential support”, the judges added.

They raised further questions. Why should there be a ban on all foreign lawyers in all national security cases, without distinction?

What sort of exceptional circumstances would permit such lawyers to participate? No convincing answer has been provided.

Lee raised the concern foreign lawyers would be “coerced, compromised or controlled” by their own governments. But how would this be done? Defence lawyers represent their clients. They put forward legal arguments. They do not decide the outcome of the case.

The lawyers are not foreign agents. They are independent. British barristers are governed by a strict code of conduct that would forbid them from disclosing confidential information when working overseas. The idea they would undermine national security, simply because they happen to be based abroad, is far-fetched.

Beijing’s ruling will come at a critical time. The city is beginning to open up after three years of pandemic isolation. It aims to become an international legal hub and is keen to ease concerns overseas about the impact of the national security law.

A ban on top foreign lawyers for security cases will undermine those efforts. It conveys a message that Hong Kong does not trust foreigners – even eminent lawyers. Some will, no doubt, see it as state interference in an ongoing criminal trial. The Immigration Department did not even wait for Beijing’s decision before refusing Owen’s application for an extension of his visa.

There is a need for the city to distinguish between real and imagined threats to national security. Sensitivity bordering on paranoia will harm Hong Kong’s international reputation and hamper its re-emergence on the world stage.

Sensitivity bordering on paranoia will harm the city’s international reputation