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National Security Law: Rule of Law, Judicial Independence & Non-Permanent Judges in Hong Kong

Written By: Aidan Chan

Edited By: Lynette Ong


Photo by: Aidan Chan


Abstract:

The purpose of this article is to analyse the effects of the Hong Kong National Security Law on the implications for overseas counsels in national security cases following the trial of Jimmy Lai. This will be followed by a general discussion in corollary on the state of the Rule of Law, judicial independence, and the role of Non-Permanent Judges in Hong Kong. The fervent hope for this article is to achieve an apolitical analysis and allow its readers to form their own judgement.

Background of Hong Kong National Security Law

Hong Kong’s Law is deeply rooted in the British common law system from its former status as a British Colony. The Basic Law of Hong Kong (BL) is a codified document which outlines the fundamental principles, rules and procedures for the governance of Hong Kong. However, the Standing Committee of the National People's Congress (NPCSC) retains authority over the interpretation of the Basic Law.[1] The Bill of Rights Ordinance (BR) incorporates the provisions of the International Covenant on Civil and Political Rights (ICCPR) and even further protections. The constitutional framework of BL and BR, coupled with the inheritance of the English common law, have formed the foundation for the system of governance in Hong Kong, such as a “one country, two systems”.[2] This ensures the principle of “Hong Kong people ruling Hong Kong with a high degree of autonomy”, as enshrined in the BL;[3] It also allows Hong Kong to enjoy independence as the ‘special administrative region of the People's Republic of China (PRC)’. Hong Kong National Security Law (NSL) came into force in June 2020.[4] Its main aim was to protect against crimes of secession, subversion, terrorism and collusion with foreign organisations. Following the enactment of NSL and the trial of Jimmy Lai, concerns over the erosion of the Rule of Law and judicial independence have risen.


Trial of Jimmy Lai

Jimmy Lai is a prominent media tycoon and pro-democracy activist in Hong Kong. He founded Next Digital Limited and the newspaper 'Apply Daily' which were widely circulated. Lai was put on trial in April 2021 for alleged conspiracy to collude and conspiracy to print seditious publications. Lai pleaded not guilty to all charges but was ultimately convicted and sentenced to 14 months imprisonment."


Admission for overseas counsel However, this article is mainly concerned with the matter of admission for overseas counsel to be involved in national security cases. In Re Owen KC,[5] the Chief Judge of the High Court granted ad-hoc admission for Mr Timothy Owen, KC, to represent Lai in his trial as an overseas advocate under section 27(4) of the Legal Practitioners Ordinance. From the Court of First Instance[6] to the Court of Final Appeal, the judiciary has sided with Lai – rejecting the idea of a blanket ban on foreign counsels in national security cases. The courts recognised the unusual difficulty in balancing the interests of fundamental rights of freedom and freedom of expression, re-affirming that NSL should be developed with internationally adopted judicial standards.[7] The Secretary of Justice (SJ) has made three attempts to repeal the decision. In the last instance court, SJ repealed on the grounds of concern for national secrecies and sensitive information. The Court criticised SJ for “raising undefined and uninstantiated issues said to involve national security which was not mentioned or explored in the Courts below”[8] and rejected the government's application to impose a “blanket ban” on foreign lawyers working on national security cases.

However, despite the Court’s final ruling, China has conferred power on the chief executive to have the final say on the use of overseas counsel in national security cases. Courts will now need to make an application before such use is allowed. The amendments were prepared following a legal interpretation handed down by the NPCSC, China’s top legislative body in December. Lai was forced to switch to a local lawyer for the remainder of his trial.

The case itself signifies incredible jurisprudential value as it is the first instance case which concerns the admissibility of legal practitioners for taking cases of NSL. Legal scholar Eric Lai has tweeted that this decision “creates a de facto political-legal committee for Hong Kong’[9] The city’s chief executive has denied that this decision erodes judicial independence, adding that there are no effective means to guarantee that a foreign advocate is not involved in divulging state secrets or being coerced by foreign governments, associations or persons,[10] contrary to article 63 of NSL.


Current Criticisms of the Security Law and Admission for foreign advocates

The current criticisms of the Security Law point towards the argumentation that China has been using NSL to override BL and English common law traditions in Hong Kong. However, this argument lacks insight because the nation’s ultimate legal interpretation has long been outlined in BL. There exists a contradiction between the guarantee of judicial independence and the final power of interpretation from China. Article 23 of BL requires the implementation of a security law to be promulgated. However, two attempts in 2003 and 2019 failed during outbreaks of SARS and COVID-19. Legally speaking, the provisions of BL empower China to do so, and it is of no dispute that concerning the implementations and interpretations of NSL and BL, China’s act is legally correct and not an erroneous decision. However, the writer has reservations over whether this implementation for courts to seek permission for ad-hoc admission of overseas counsels is justifiable from a socio-political standpoint, as China has effectively overturned the court’s final ruling and retroactively forced Lai to switch to a local lawyer for the remainder of his trial. There are also obvious concerns over the judicial independence and autonomy of Hong Kong from a democratic standpoint.


Potential deterrence/ discrimination against foreign law practitioners in Hong Kong, comparable with commonwealth jurisdictions

This, in effect, has left concerns over the prospects for overseas lawyers hoping to practice in Hong Kong. In hindsight, the writer agrees that cases of NSL are extremely rare. Until at least 2047, the city is still welcoming foreign law practitioners in terms of general areas of cases, the reason for this will be explored below. Comparably, other common law countries employ a much stricter approach. For example, Singapore imposes an outright "blanket ban" on foreign advocates to work on national security. The Legal Profession Act 1966 allows foreign lawyers to practice in limited areas in Singapore, subjected to the condition that they have worked for three years in the relevant practice before they can apply to sit for the Foreign Practitioners Exam. In this light, there is a much tighter threshold on the admissibility for a foreign advocate in Singapore compared to Hong Kong's approach. Moreover, most Commonwealth jurisdictions often employ vaguely worded provisions concerning admissibility of foreign councils in national security cases to avoid an explicit “blanket ban”. This can be in forms of procedural hurdles, strict ad-hoc admission criterions or even national security clearance procedures. These provisions result in significant limitations in terms of their scope of work and access to information as a counsel. With regard, the writer questions the justification provided for the approach taken.

It is confirmed that NSL should be developed with adherence to the Rule of Law and in accordance with internationally adopted judicial standards.[11] While this does not imply unlimited participation by foreign counsels, the writer does not see why it should not be approved in cases of genuine application; similarly, overly restrictive criteria should not be imposed. As adopted by the Court, Tim Owen is a well-known expert in criminal, public, and human rights law, and can undoubtedly contribute significantly to the development and jurisprudence of NSL. In SJ’s defence, having viewed Tim Owen as unsuitable for the case does not mean that it views every foreign counsel to be unfit. Additionally, although the Chief Executive's permissive power is not exactly a blanket ban, if the Chief Executive outrightly dismisses overseas counsel participation in every NSL case, it could be likened to a blanket ban. Further, how can one ensure that local lawyers are also not subjected to coercion by other countries? This seems to defeat the idea that national security interests should best be represented by a local lawyer.


Discussions

To this, one might raise a simple question: if all the disputes are grounded in the fact that Article 158 of BL empowers China to have the final power of interpretation, how has there been no appeal made against that very provision itself?' However, one must recognise that it is more important that the existence of the power must not be challenged. Article 158 was enacted within BL following 1990 and was agreed as part of the Sino-British Joint Declaration, which guarantees Hong Kong’s autonomy for 50 years. BL governs Hong Kong’s relationship with China, and any challenge to it would risk the city's state as a “special administrative region”. As greatly put by Albert Chen, “if one country, two systems is to work, it is necessary to develop a jurisprudence that is acceptable to both sides and one that reconciles the differences or at least provides principles and norms that define what differences are tolerable.”[12] China has conferred special benefits and privileges for Hong Kong to operate in a highly independent and autonomous governance system, which could not be achieved without genuine cooperation and mutual respect. Jiang and Puig, in their article, have called for a need to modernise the BL to include not only common law (Rule of law) but characteristics of Chinese law, suggesting the transplanting of the full judicial framework to promote “productive judicial dialogue, clear precedents, coexistence of two systems in one country, and continued impact beyond 2047.”[13]

The role of (overseas) Non-permanent Judges The Court of Final Appeal uses a list of (overseas) Non-Permanent judges (NPJs) from commonwealth jurisdictions. They add a significant dimension and contribution to the work of the court and jurisprudence of Hong Kong. Before July 1997, the final court of Hong Kong was a privy council in London. Adopting a panel of Non-Permanent judges in the appellant and final courts of Hong Kong evidences the continuity of BL, for which the panel of NPJs has proven invaluable. The adoption of NPJs is enshrined in Article 82 of BL,[14] but the writer emphasises the discretionary element that it regulates within itself. The resignations of Lord Reed and Lord Hodge were of no doubt, regretful and sad news. However, their reason was rather to make a point on the interests and values they wish to represent as Justices of the Supreme Court. In Lord Reed’s statement, he concluded his belief that he was no longer no able to sit in Hong Kong court to endorse “....an Administration which has departed from values of political freedom, and freedom of expression, to which the justices of the Supreme Court are deeply committed”.[15] His Lordship believes that one cannot simply divorce the situation inside the court and outside. Lord Hodge, as concurred by Lord Reed,[16] expressed that they were not in any way under pressure by the government to endorse the executive’s campaign. Lord Reed also observed the other NPJs’ decision to remain as: “NPJs doing what they could in a difficult situation.” Their Lordship emphasised their resignation as nothing more than personal choices." Lord Neuberger describes the current situation as 'canaries in the gold mine' - suggesting that the retirement of NPJs is a warning signal for a greater danger to come." The immediate and ripple effect of NPJs’ retirement is worth a reflection on the judiciary system. However, it is nevertheless encouraging to see that over five NPJs have expressed commitment to continue sitting in the final court, affirming their satisfaction with the independence and integrity of CFA and the panel of NPJs.[17] The writer believes the roles of NPJs contribute immeasurable value during substantive repeals and to the local jurisprudence, they are a testament to Hong Kong's judicial independence and the Rule of Law, and I would only hope for the tradition to be preserved.


Conclusion

This journal presented the basic arguments surrounding the ad-hoc admission for overseas counsels in NSL cases, and its impact on the Rule of Law, judicial independence and the role of NPJs. The NSL was an inevitable product of BL with the British handover of Hong Kong in 1997, despite its historical attempts to block the passage of the law, its promulgation is a matter of eventuality. The final power for interpretation reserved for the NPSCS also makes whatever the party decides in relation to NSL cases within their legal authority. However, for now, BL ensures the preservation of judicial independence and the Rule of Law.[18] Cases with political overtones are convoluted and divided in nature, and judges often face intense criticisms and assessments for their adjudication. It is not unforeseeable, and perhaps from China’s perspective, “stands to reason” that the nation will implement more of its legal characteristics after 2047. Nevertheless, some believe that enacting NSL is the nation's first step to seep its power into the city.

Whether it is a progressive display of power from the nation or a step towards ensuring national security is left to the judgement of the readers.


References

[1] See Article 158 of the Basic Law: "The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.”


[2] The Basic Law s(1).


[3] BL s(2).


[4] Formally known as Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region.


[5] (Cap. 159) which reads: “the Court may admit such person as a barrister under this section for the purpose of any particular case or cases and may impose such restrictions and conditions on him as it may see fit.”


[6] [2022] HKCFI 3233.


[7] [2022] HKCA 1689 at [45].


[8] Hon James Pomfret and Greg Torode, ‘Hong Kong Leader Asks Beijing to Rule on “blanket Ban” on Foreign Lawyers in National Security Cases’ (Reuters, 28 November 2022) <https://www.reuters.com/world/china/hong-kongs-top-court-rejects-bid-block-british-lawyer-defending-democrat-jimmy-2022-11-28/> accessed 11 March 2023.


[9] ibid.


[10] ibid.


[11] Re Owens (n 7).


[12] Albert Chen, ‘Another Case of Conflict Between the Court of Final Appeal and the NPC Standing Committee?’ 31 H.K.L.J. (2001) 179, 185.



[13] Patrick Jiang and Gonzalo Villalta Puig, ‘Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union’ (2018) 19 Chicago Journal of International Law 3,29.


[14] Article 82 reads: “The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.”


[15] The Supreme Court, ‘Role of UK Judges on the Hong Kong Court of Final Appeal Update - The Supreme Court’ (Supremecourt.uk, 30 March 2022)

<https://www.supremecourt.uk/news/role-of-uk-judges-on-the-hong-kong-court-of-final-appeal-update-march-2022.html> accessed 12 March 2023.


[16] UK Supreme Court Judges Explain Why They Resigned from Hong Kong (Directed by CollectHK, 2022) ( 7 April 2022) <https://www.youtube.com/watch?v=SPM4ImOI-pI> accessed 12 March 2023.


[17] The Law Society of Hong Kong and Hong Kong Bar Association, ‘Joint Statement of The Legal Profession regarding Overseas Non-Permanent Judges of the Court of Final Appeal’ (Issues of Press statement, The Law Society of Hong Kong, 2022) <https://www.hklawsoc.org.hk/-/media/HKLS/Press-statement/EN/2022/20220402.pdf> accessed 11 March 2023.


[18] Article 158(5) provides that the NPCSC must consult the Basic Law Committee of Hong Kong before making an interpretation of the Basic Law, and the interpretation must be in accordance with the spirit of the Basic Law and the principles of the Rule of Law and judicial independence.






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