Regarding whether Timothy Wynn Owen, Queen's Counsel of the United Kingdom, can participate in the trial and defense of Jimmy Lai's case, the Chief Executive submitted a report to the central government on November 28, suggesting that the Standing Committee of the National People's Congress should be requested to interpret the "Hong Kong National Security Law" to deal with "do not have the full local qualifications to practice law." Whether overseas lawyers or barristers can participate in any form in handling criminal cases endangering national security".
In response, the Standing Committee of the National People's Congress issued an interpretation on Articles 14 and 47 of the "Hong Kong National Security Law" on December 30.
This interpretation did not directly answer the questions raised by the Chief Executive. The content of the interpretation did not mention whether overseas lawyers or barristers can participate in handling cases of the National Security Law.
The interpretation of the law focuses on procedural issues, and at the same time divides the relevant functions and powers, and stipulates that the SAR should resolve this issue on its own.
This is to point out that, according to the legislative intent of the "Hong Kong National Security Law", the chief executive could have issued a certificate on this issue at the request of the court in accordance with Article 47 of the "Hong Kong National Security Law", because overseas lawyers participating in the litigation of the National Security Law may related to national security issues.
In addition, the Interpretation also shows that in the absence of the above-mentioned certificate issued by the Chief Executive, according to Article 14 of the "Hong Kong National Security Law", the scope of power of the National Security Council of the SAR also includes the handling of this issue.
NPC's gentle handling avoids negating SAR court ruling
What everyone is concerned about is the impact of the interpretation of the law by the National People's Congress on the judicial power and judicial independence of the SAR.
I think this interpretation has deliberately dealt with the relevant issues in a milder way, especially to avoid directly denying the decision of the SAR court to grant Owen the right to appear in court or the qualification to practice in the Jimmy Lai case.
The decision was made under section 27(4) of Hong Kong's Legal Practitioners Ordinance, which provides that even if an overseas barrister is not qualified to practice in Hong Kong, the Hong Kong court may, if it thinks fit, grant the barrister's qualifications to practice in individual cases.
So how can the National Security Council follow up on this matter?
As the Chief Executive pointed out after the interpretation of the law by the National People’s Congress, the SAR government will consider whether it is necessary to amend the “Regulations on Legal Practitioners”; Some amendments have been made to the relevant provisions of the Regulations, such as the addition of new provisions to indicate that the above-mentioned provisions on the court's granting of the qualifications of overseas barristers to practice in individual cases do not apply to cases under the National Security Law.
It must be pointed out that the interpretation of the law by the National People's Congress did not give the National Security Council any new powers beyond the statutory powers enjoyed by the administrative organs of the SAR government according to the original law.
For example, if the National Security Council believes that the "Legal Practitioners Regulations" should be amended, it can only make suggestions for amendments, and whether the amendments are finally passed still has to be decided by the Legislative Council.
In addition, the National Security Council has no right to deny, change or revoke the court's ruling on Owen's participation in the Li Zhiying case.
The SAR government has the right to decide on Tim Owen's work visa
On the other hand, it is worth noting that the court's decision in this regard was made in accordance with section 27(4) of the Legal Practitioners Ordinance, which only empowers the court to confer qualifications to overseas barristers in individual cases. It is not within the scope of the relevant court's judgment whether overseas barristers who have been granted the qualification to practice can obtain working visas to come to Hong Kong.
According to the existing laws, the SAR government has the full right to handle applications for visas to Hong Kong on its own; in this regard, the National Security Council can also formulate relevant policies on such entry visa issues.
If the Li Zhiying case starts trial in September 2023, the "Legal Practitioners Regulations" have been amended, for example, it is expressly stipulated that overseas barristers cannot participate in the litigation of national security law cases. Li Zhiying appeared in court as his defense lawyer when the trial began.
Because at this time, whether Owen has the right to appear in court is determined by the law applicable at the time of the trial of the case. The court’s previous decision to grant him the right to practice in the case was based on the old and repealed legal provisions. shall become void upon modification or repeal of the legal basis underlying this decision.
There is no need to worry too much about the impact of the interpretation of the law on the judicial power of the SAR
Some people worry that this interpretation expands the powers enjoyed by the chief executive under Article 47 and the powers enjoyed by the National Security Council under Article 14, and may pose a threat to judicial power. I think there is nothing to worry about.
This interpretation only deals with the issue of overseas lawyers participating in the litigation of national security law cases. The interpretation indicates that the chief executive can handle this issue in accordance with Article 47 of the Hong Kong National Security Law, and the National Security Council can handle this issue in accordance with Article 14 of the Hong Kong National Security Law.
As for the powers conferred on the Chief Executive and the National Security Council by these two articles on handling other matters, they have not been affected or expanded at all by this interpretation.
If in the future, during the trial process of the national security law case, the SAR government considers that it is necessary to request the Chief Executive to issue a certificate on the determination of an act that may involve national security or evidence that may involve state secrets, it may make such a suggestion to the court, It is then up to the court to decide whether to request the Chief Executive to issue the relevant certificate under section 47.
If the government and the court have different opinions on whether it should be submitted, the government must weigh the pros and cons to decide whether to submit to the National People's Congress for interpretation to deal with the interpretation and application of Article 47 involved in the case.
The author, Chen Hongyi, is Cheng Chen Lanru Foundation Chair Professor of Constitutional Law at the Faculty of Law of the University of Hong Kong and a member of the Basic Law Committee.
The content of the article only represents the author's personal views and does not represent the position of Hong Kong 01.
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