Necessary move to safeguard rule of law in Hong Kong

John Lee Ka-chiu, chief executive of the Hong Kong Special Administrative Region, said on Tuesday that the central government in Beijing was “highly concerned” about the possible security risks that might arise from foreign lawyers being involved in national security cases, and that he had requested a legal interpretation on the matter by the National People’s Congress Standing Committee “as soon as possible”.

The move comes after the special administrative region’s highest court, the Court of Final Appeal, on Monday dismissed a government bid to block the United Kingdom barrister Timothy Owen from representing media tycoon Jimmy Lai Chee-ying, who faces charges under the special administrative region’s National Security Law, and impose a “blanket ban” on foreign lawyers working on national security cases.

Lee said that such an interdiction is necessary as Lai is suspected of colluding with foreign forces to commit crimes against national security and a foreign lawyer might divulge State secrets that are revealed during the trial.

Unlike their local counterparts, there is no effective mechanism to prevent or stop overseas defense counsels from leaking potential State secrets involved in national security cases once they leave the city. This is conspicuously contrary to the very purpose of Article 63 of the National Security Law, which stipulates that anyone who handles cases concerning alleged offenses endangering national security shall keep confidential any State secrets which they come to learn about in the process of handling such cases.

The forthcoming interpretation of the National Security Law by China’s top legislative body will set the record straight and ensure that the law is properly implemented to the intended effect.

The High Court’s ruling acknowledged the “contribution” overseas counsel could make in developing local jurisprudence, and emphasized the need to take “public perception of fairness” into account, but failed to address the issue of possible security risks. It also ignored the principle that foreign counsels should only be resorted to when no suitable local counsel is available for handling a case. The UK barrister concerned has no distinguishing expertise in cases relating to Hong Kong’s National Security Law or other advantage over a local barrister.

It is also troubling that the High Court ruled that the “perception of fairness” takes precedence over the need to ensure the effective enforcement of the National Security Law, and thus the effective protection of national sovereignty, security and development interests.

Hong Kong’s chief executive is also the chairman of the Hong Kong SAR Committee for the Maintenance of National Security, and is responsible to the central government for the maintenance of national security in the SAR. It is therefore entirely proper that Lee should refer the matter to the country’s top legislature for clarification. The forthcoming interpretation by the NPC Standing Committee will help to further improve the judicial system and legal system and strengthen the perception that the SAR is under the rule of law.