Opinion | The spirit of the rule of law remains unchanged
By Kevin Lau
Not long ago, the Standing Committee of the National People's Congress delivered its interpretation of Articles 14 and 47 of the National Security Law for Hong Kong in response to the Hong Kong Special Administrative Region government's request for clarification after controversies arose from media tycoon Jimmy Lai Chee-ying's intention to engage an overseas barrister to defend him in his national security case. The HKSAR government has introduced an amendment bill for the Legal Practitioners Ordinance, which stipulates that Hong Kong courts will need the chief executive's permission before a foreign lawyer is allowed to take on a national security case in Hong Kong. This proposed amendment has attracted quite a bit of attention. I believe it is necessary for people to understand the following points.
Proposal is in line with worldwide common practice
The whole thing started when Lai was charged with "colluding with a foreign country or with external elements to endanger national security", which by its very nature is related to the National Security Law. To be clear, the National Security Law covers matters related to national sovereignty, security and the fundamental interests of the country. So how are cases of this nature being handled in other countries around the world? Currently in Australia, New Zealand, India, Malaysia, Singapore and South Africa, which are all former British colonies, the courts do not allow the defense of a case to be represented by a barrister from England. These countries have decided to make this because judicial independence is an essential part of the inviolability of national sovereignty.
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The practices of these countries are definitely of high reference value to Hong Kong. Hong Kong, being a special administrative region of China, is constitutionally obligated to protect the sovereignty and judicial independence of the country. If it is a common practice in the world not to allow overseas lawyers to represent defendants in national security cases, I cannot see any reason for Hong Kong to be "different from the rest" or "to be unique" in this regard. In other words, if the courts in Australia, New Zealand, India, Malaysia, Singapore and South Africa do not allow overseas lawyers to represent the defense in national security cases, then how can Hong Kong do so? And if the British courts will not allow Chinese lawyers to defend the defendants in national security cases in the United Kingdom, would it not be a double standard for British lawyers to be allowed to represent defendants in national security cases on Chinese land?
Non-national-security cases are not affected
Regarding this proposed amendment to Section 27 of the Legal Practitioners Ordinance, the Department of Justice has already indicated that the new requirement for permission from the chief executive will apply to all national security cases, criminal or civil. This requirement does not apply to non-national-security cases. If overseas lawyers want to come to Hong Kong to represent civil and commercial cases that do not involve national security, they do not need prior permission from the chief executive. In the process of amending Section 27 of the Legal Practitioners Ordinance, it may be necessary for the government to explain this point clearly.
The spirit of the rule of law won't change
The concept of "rule of law" is not abstract, meaning that certain basic legal principles dictate how power is exercised in Hong Kong. Both the HKSAR government and all public officers derive their powers from the laws. It is important to note that the proposed amendment of Section 27 of the Legal Practitioners Ordinance is only a "technical" amendment and will not fundamentally change the spirit of the rule of law in Hong Kong. After the amendment, the rule of law will remain unchanged and will remain an important component of Hong Kong's unique advantages under "one country, two systems". Hong Kong remains one of the most attractive cosmopolitan cities.
The author is a specialist in radiology with a Master of Public Health from the University of Hong Kong, and an adviser of Our Hong Kong Foundation.
The article was first published in China Daily.