China gives Hong Kong leader power to bar overseas lawyers in national security cases

REUTERS/Tyrone Siu
Police stands guard outside the West Kowloon Magistrates’ courts in Hong Kong, China November 25, 2022.

HONG KONG – China’s top lawmaking body has given Hong Kong leader John Lee the power to bar foreign lawyers from national security cases, removing the decision from the city’s courts, in a move likely to further fuel concerns over judicial independence.

The use of foreign lawyers by both prosecutors and the defense have long been part of the former British colony’s rule of law traditions.

The move, reported by state news agency Xinhua on Friday, comes after a Hong Kong court this month postponed a national security trial against media tycoon and China critic Jimmy Lai to September, to give time for the ruling by China’s National People’s Congress Standing Committee (NPCSC).

In November, Lee had asked the NPCSC to weigh in on the matter after a series of failed attempts by the Department of Justice to block a British lawyer, Timothy Owen, from defending Lai.

Critics say Beijing’s intervention in this landmark legal case undermines Hong Kong’s judicial independence, after a panel of three senior judges on the city’s Court of Final Appeal in November rejected a government bid to block Owen from representing Lai.

The NPCSC ruling said Hong Kong courts must now obtain approval from the chief executive before admitting any foreign lawyer without local qualifications to work on national security cases.

If the courts do not do so, the city’s national security committee, which is led by the chief executive and Beijing’s liaison office chief, will make a decision on the matter.

Under the national security law, the decisions made by the committee cannot be challenged by a judicial review.

Lee said in a news conference late on Friday the decision only involves “a very small area” as they are only looking at whether overseas lawyers should be allowed to take part in national security cases.

“Beyond national security cases, then they are most welcome, provided that they satisfied the procedure to obtain an ad hoc admission approval by the court,” Lee said.

Legal scholar Eric Lai said on Twitter that the decision “creates a de facto political-legal committee for Hong Kong,” as judicial independence vanishes when executive authorities can override a court decision without being challenged by a judicial review.

Jimmy Lai, who has been in custody for nearly two years, faces possible life imprisonment under the China-imposed national security law, for charges including alleged collusion with foreign countries.

The founder of now shut pro-democracy newspaper Apple Daily, Lai is one of the most prominent Hong Kong critics of China’s Communist Party leadership, including Xi Jinping.