Overseas lawyers banned from working on national security cases without government approval

On 10 May 2023, the Hong Kong legislature passed a law which bars overseas lawyers from working on national security cases unless they receive permission from the government.

This is yet another instance where the Hong Kong government, after losing its case in court, sought the intervention of Beijing by making an “interpretation” of the law – this time, the national security law.

The saga started with Jimmy Lai, the founder of now defunct Apple Daily newspaper and a high profile pro-democracy figure, who has been charged with foreign collusion under the NSL. Lai had sought to engage English barrister Tim Owen KC to defend the charges but Owen’s participation was strongly opposed by the Hong Kong government. Ultimately, the Hong Kong Court of Final Appeal ruled that Owen could represent Lai. However, Hong Kong’s Chief Executive John Lee then asked Beijing to intervene in November 2022. Soon afterwards, Beijing declared in December 2022 that the Hong Kong courts needed approval from the Chief Executive to allow overseas lawyers on national security cases. In February 2023, the Hong Kong government proposed to amend the Legal Practitioners Ordinance. On 10 May 2023, the new law was passed unanimously by the Legislative Council (which is entirely controlled by pro-Beijing factions), requiring the Hong Kong courts to obtain a special certificate from the Chief Executive before allowing overseas lawyers to  participate in any national security cases.

Judicial independence is required by the doctrine of separation of powers and is regarded as a fundamental requirement of the rule of law. In a briefing paper, the Hong Kong government alleged that the amendment would not have adverse implications on the rule of law or the court’s independent judicial power. However, from both the background which led to the proposed amendment and the amendment itself (which has effectively given the government the power to veto any overseas lawyer from working on national security cases), it is crystal clear that judicial independence, defendants’ right to legal representation and the right to fair trial have been critically undermined

(This story originally appeared in the March-April 2023 edition of our newsletter).

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