Government shows Hong Kong’s Court of Final Appeal not so final

Frank Ching January 04, 2023 09:47

Ever since he became Chief Executive in July, John Lee has made clear his priorities: revive the economy, end Covid restrictions responsible for cutting off Hong Kong’s links with the rest of the world, and reopen the border with mainland China.

He has made much progress. By winning Beijing’s trust, he was given a free hand to deal with Covid 19 without having to follow the mainland’s zero-Covid policies. Once in office, he quickly eased restrictions. By late December, all restrictions were lifted aside from mask wearing. There was an explosion of joy as people celebrated the holidays without having to worry about tests, quarantines, close contacts, vaccine passes, or how many could sit at one table.

The easing of Covid restrictions was accompanied by talks with the mainland on reopening the border, closed for almost three years. The first phase of reopening is now expected on Jan. 8. Reopening will have a major impact, as throngs of visitors return to pump up the city’s economy, which is now in recession.

At the same time, Lee is working to have foreign investors and business people, some of whom have relocated to Singapore, return to Hong Kong and have the city regain its former role as a regional and international financial, shipping and business hub.

This will be more difficult, since it involves convincing foreign governments as well as the international business community that Hong Kong is still a city governed by law, where the judiciary is independent. There is also a widespread perception that basic freedoms have been eroded after the national security law was imposed in mid-2020.

But Chief Executive Lee insists that all freedoms enshrined in the Basic Law are still protected. In his first policy address in October, he cited Hong Kong’s competitive advantages, including “a sound legal system.”

“The government will safeguard independent judicial power,” he said. “We will safeguard due administration of justice and the rule of law to enhance the confidence of the public and the international community in our rule of law.”

Recent events, however, have raised new questions as to whether the administration is safeguarding or undermining the independence of the judiciary.

Jimmy Lai, the jailed former newspaper tycoon awaiting trial on national security charges, including one of collusion with foreign forces, has hired a British barrister, Timothy Owen, to defend him. The government vigorously opposed this in court, losing on every level, up to the Court of Final Appeal.

The CFA’s decision is final for most people. It is apparently not so for the government. Back in 1999, after the government lost a right-of-abode case known as Ng Ka Ling v Director of Immigration, it asked the National People’s Congress Standing Committee for an interpretation of the Basic Law. The NPCSC issued an interpretation in which it declared, among other things, that the CFA had failed to seek its interpretation. The interpretation, in effect, overturned the CFA’s decision. The government, which had lost in court, prevailed by seeking an NPCSC interpretation.

This time, after the government lost in the CFA, Lee announced that he was asking the NPCSC to interpret the national security law to clarify whether overseas lawyers not qualified to “practice generally” in Hong Kong should be allowed to engage in national security cases.

The NPCSC announced its decision Dec. 30. Instead of ruling whether Owen could defend Lai in court, it issued principles to be applied in national security cases. It said that when a Hong Kong court hears cases involving crimes endangering national security, the court shall apply for a certificate from the Chief Executive regarding whether national security or state secrets are involved, and the certificate shall be binding on the court.

If a court doesn’t apply for a certificate, then a body known as the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, headed by the Chief Executive with a mainland official as adviser, can step in.

According to the NPCSC, Lee in his request for an interpretation told the mainland lawmakers that overseas lawyers acting as defenders in criminal cases “may lead to national security risks.” An overseas lawyer, it seems, is ipso facto not as trustworthy as a Hong Kong one.

It’s unclear if the CFA will be asked to apply for a certificate. But whatever the procedure, the die is cast.

The CFA may retain its name. But the government certainly knows in its heart that there are ways to get around the finality of its decisions. One wonders how the international legal and business communities will think of such ingenuity.

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Frank Ching

Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.