NPCSC issues NSL interpretation, allowing Hong Kong government to control overseas lawyers’ involvement in national security trials

On 30 December 2022, the National People’s Congress Standing Committee (“NPCSC”) issued its first interpretation of the Hong Kong National Security Law (“NSL”). The interpretation declares that, for national security cases, the Hong Kong courts must seek a certificate from the Hong Kong Chief Executive (“CE“) before allowing an overseas lawyer to represent a defendant; where the courts do not obtain such a certificate from the CE, Hong Kong’s National Security Committee (an organ composed of the CE and various government ministers, joined by a Beijing-appointed “advisor”) is empowered to decide on the question. In effect, the interpretation has, for national security cases, removed the Hong Kong courts’ usual power to decide on the admission of overseas lawyers; that power now rests entirely with the authorities. The controversy arose in October 2022, after the High Court approved the admission of renowned London barrister, Timothy Owen KC, to represent Apple Daily founder Jimmy Lai in his national security case (where Lai is accused of “colluding” with “foreign forces”, facing life imprisonment if convicted). The Hong Kong government’s appeal was rejected by the Court of Appeal, and again by the Court of Final Appeal (“CFA“). However, after losing the appeal, CE John Lee immediately sought to overturn the CFA decision by requesting the NPCSC in Beijing to issue an interpretation of the NSL. Pending the NPCSC’s decision, the Hong Kong government withheld Owen’s application for an extension of his work visa; the barrister then left the city. Lai’s trial was also adjourned until September 2023 (nearly 3 years after he was put into custody in December 2020) After NPCSC handed down its interpretation, the National Security Committee convened and urged the Hong Kong government to amend the Legal Practitioners Ordinance as soon as possible. This interpretation confirms, yet again, that judicial independence is a mirage under Hong Kong’s national security regime. Even after losing at all levels of the Hong Kong judicial process, the authorities can – and evidently will – override the verdict by obtaining an override from Beijing. Under the NSL, the deck is already heavily stacked against the defendant: the judge is selected from a panel which is handpicked by the CE (Article 44), the prosecution can unilaterally deny a jury trial (Article 46), and there is a presumption that bail will be refused (Article 42). Now, even the defendant’s right to choose his own lawyers (a right supposedly guaranteed by Article 35 of the Basic Law) is being dismantled.

(This article originally appeared as an item in the Oct-Dec 2022 edition of our newsletter.)

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