Hong Kong lawmakers on Wednesday passed an amendment to a law granting the city's leader the power to bar overseas lawyers from handling national security cases, following a high-profile row sparked by a pro-democracy Hong Kong publisher's hiring of a British lawyer.
The changes will require overseas lawyers who do not generally practice in Hong Kong to obtain permission from the chief executive before submitting applications to represent clients in national security cases in court.
The city's leader will only give approval if there are sufficient grounds to believe the lawyers' involvement will not contradict the interests of national security, and the decision cannot be challenged.
The bill was passed by a majority in the city’s legislature, filled by mostly Beijing loyalists, with little opposition through a show-of-hands vote. Critics said the changes will leave defendants with even fewer choices when they look for legal representation in some of the city’s most controversial cases.
The legal changes were proposed this year after the city's top court approved jailed pro-democracy publisher Jimmy Lai's appointment of London-based lawyer Timothy Owen to represent him as he faces collusion charges under a Beijing-imposed national security law.
Hong Kong, a former British colony that returned to China in 1997, uses the same common law jurisdiction as the U.K., and lawyers from other common law jurisdictions can generally work within the city's legal system when their expertise is needed.
Hours after Hong Kong's top court in November approved Lai's choice of lawyer, city leader John Lee asked Beijing to decide whether foreign lawyers should be allowed to work on national security cases. While China’s top legislative body didn’t directly rule on whether these lawyers could handle such cases, it said the city's leader and committee for safeguarding national security had the power to decide the matter.
In proposing the amendment, the government said the changes would “effectively implement the spirit of the interpretation” of the law and address potential national security risks associated with overseas lawyers handling such cases. The mechanism will apply to both criminal and civil cases related to national security, it said.
On Wednesday, Secretary for Justice Paul Lam defended the changes by arguing defendants can choose representation from more than 1,600 barristers in Hong Kong. But, in practice, defendants in national security cases are left with a small pool of lawyers who can handle such cases, said Kevin Yam, senior fellow at Georgetown Center for Asian Law.
“Pretty much almost all the barristers who are willing and able” to take up such cases are already handling an ongoing trial involving 47 activists who were charged under a national security law over an unofficial primary election, Yam said. That trial is expected to last for 90 days.
“We’re left with a situation where a type of case that very few lawyers are willing to take up are now going to lose yet another source from which you can get legal representation,” he said.
He also noted the definition of national security is vague, so it will be hard to determine when foreign lawyers will be turned away under the new mechanism.
"If you are a foreign lawyer ... would you take the risks in going through the whole uncertainty about whether the case you’re going to take is going to involve national security elements?” he said.
The legal changes passed Wednesday are not retrospective.
Lai’s lawyers earlier learned that the committee for safeguarding national security had decided Owen's representation of Lai would likely pose national security risks and advised the director of immigration to refuse any new work visa applications from Owen related to the case. The director of immigration said his department would act in accordance with that advice.
The lawyers last month filed an application for judicial review, asking the court to quash the committee and director’s decisions. The court is expected to hand down a decision later.
