Hong Kong:A crisis averted, but will justice be seen to be done?

February 10, 2023 09:52
Photo: The  Court of Final Appeal

A little more than a month ago, Hong Kong faced a major political crisis.

Hours after the Court of Final Appeal rejected the government’s latest attempt to block former newspaper magnate Jimmy Lai – now facing criminal charges under the Beijing-imposed National Security Law—from retaining British barrister Timothy Owen to head his defense team, Chief Executive John Lee announced that he had asked Beijing to intervene with an interpretation of the NSL by the National People’s Congress Standing Committee.

If the NPCSC had overruled Hong Kong’s top court, there would have been a firestorm of criticism charging, correctly, that the Hong Kong judiciary was not independent. This would seriously undermine Hong Kong’s efforts to regain its former position as a major financial and business hub, a goal strongly backed by China.

That did not happen. Beijing was aware of possible dire repercussions from its actions. That presumably was why the NPCSC interpretation, unveiled Dec. 30, ruled that it was up to Hong Kong itself to resolve the issue. Two articles in the NSL were interpreted to point the way to a solution.

First was Article 14, which focused on the functions of the Committee for Safeguarding National Security, a powerful new body established by the law. It is chaired by the Chief Executive and is accountable to the central government. The interpretation said the Committee “has the power to make evaluation and decision on whether an issue concerning national security is involved.”

Article 47, also interpreted, stipulates that Hong Kong’s courts “shall obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case.” According to the interpretation, certification is required if a foreign lawyer desires to participate in a national security case.

The interpretation asserted that should a court fail to obtain a certificate from the Chief Executive, the Committee has the authority under article 14 to make a judgment or decision on the question.

By shifting responsibility of the case back to Hong Kong, Beijing showed that it did not want to be directly involved in this issue, presumably because it did not want another major controversy involving Hong Kong with the United States and other western countries. In May 2020, then U.S. president Donald Trump announced the end of Hong Kong’s special status on the ground that China had stripped Hong Kong of its autonomy. The Biden administration has continued Trump’s policy, insisting that products made in Hong Kong should be labeled “Made in China.” It recently lost a World Trade Organization case but insisted that it would not abide by the ruling.

As to how the interpretation affects the Jimmy Lai case, Hong Kong’s Justice Secretary Paul Lam wrote in a blog post a day after the interpretation that as the court had not obtained certification from the Chief Executive, the committee would have to step in. The justice secretary also cited suggestions that the Legal Practitioners Ordinance be amended to restrict foreign lawyers from participating in national security cases.

The Committee for Safeguarding National Security met on Jan. 11 and said afterward that it “supports the HKSAR Government to introduce amendments to the Legal Practitioners Ordinance as soon as possible.”

Lai’s trial is scheduled to begin in September, so the government has sufficient time to draft a bill before that. The expectation is that the bill will ban all foreign lawyers from participation in national security cases. This will automatically bar Owen from participation in the Lai case, making him technically ineligible to serve.

Simon Young, a legal scholar at the University of Hong Kong, was quoted by the Hong Kong Free Press as saying that the bill “might also introduce a mechanism for the court to revisit a previous case of admission and require that court to obtain the [chief executive’s] certificate first otherwise the original admission decision is annulled.”

If that does happen, the Chief Executive will have a chance to do the unexpected – grant Owen the right to defend Lai. After all, the British barrister has won several rounds in court to attain that right. Besides, if the government has a solid case and capable prosecutors, there is little reason for it to fear a solitary British defense counsel.

If the government does take that step, the world will see that Hong Kong’s magnanimous leadership appreciates the wisdom of Lord Chief Justice Gordon Hewart’s words, uttered almost 100 years ago, that “Justice should not only be done but should manifestly and undoubtedly be seen to be done.”

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