Chen Hongyi, chair professor of constitutional law of the Cheng Chen Lanru Foundation of the Faculty of Law of the University of Hong Kong, wrote an article for "Hong Kong 01". New regulations have been added to stipulate that overseas barristers cannot handle cases involving national security laws.
Chen Hongyi emphasized that the National Security Council has not been given new powers due to this interpretation of the law, nor has it the right to deny, change or revoke the rulings made by the court on the issue of the British Queen's Counsel Owen's participation in the Li Zhiying case.
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The Court of Final Appeal rejected the Department of Justice's appeal against Tim Owen, Queen's Counsel, who was approved to represent Jimmy Lai in court. whether they can participate in the handling of crimes endangering national security in any form”.
On December 30, 2022, the Standing Committee of the National People's Congress promulgated interpretations on Articles 14 and 47 of the National Security Law.
The Standing Committee of the National People's Congress confirmed that the employment of overseas lawyers in national security cases is an issue that should be determined by the Chief Executive as specified in Article 47. Hong Kong courts should ask the Chief Executive for a certificate when processing the application.
If the court fails to raise the issue, the National Security Council chaired by the Chief Executive should step in to make judgments and decisions. According to "Article 14" of the National Security Law, it is not subject to judicial review challenges.
The effectiveness of the interpretation can be traced back to the end of June 2020 when the "Hong Kong National Security Law" came into force.
Since the court approved Owen to come to Hong Kong to represent Li Zhiying to defend, he did not apply for a certificate from the Chief Executive. Whether Li Zhiying's case can be represented by an overseas barrister will be handled by the National Security Council.
Chen Hongyi, who is also a member of the Basic Law Committee, pointed out in the article that this interpretation did not directly answer the questions raised by the Chief Executive, nor did it say whether overseas lawyers or barristers can participate in handling cases of the National Security Law.
The interpretation of the law is mainly procedural, and at the same time, the relevant functions and powers are divided, and it is stipulated that the special zone should solve the problem by itself.
The National Security Council may propose to ban foreign lawyers from participating in national security cases
Chen Hongyi believes that the Chief Executive has stated that he is considering whether to amend the "Regulations on Legal Practitioners". The National Security Council may suggest some amendments to the relevant provisions of the "Regulations on Legal Practitioners". The requirements for practicing qualifications do not apply to cases under the National Security Law.
He pointed out that the court’s approval of Owen’s defense on behalf of Li Zhiying on that day was a decision made in accordance with Article 27 (4) of the "Legal Practitioners Regulations". Whether to obtain a work visa to come to Hong Kong is not within the scope of the court's decision.
The SAR government has the right to process visa applications on its own, and the National Security Council can also formulate relevant policies on such entry visa issues.
Chen Hongyi: If the amendment is passed before the trial, Owen cannot represent Li Zhiying
He pointed out that 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.
However, if the "Legal Practitioners Regulations" have been amended and passed when the Li Zhiying case starts trial in September this year. Li Zhiying, because whether overseas lawyers have the right to appear in court must be determined by the law applicable when the case is tried.
The powers of the Chief Executive or the National Security Council have not been expanded due to the interpretation of the law
Chen Hongyi emphasized that the interpretation of the law did not give the National Security Council any new powers beyond the statutory powers enjoyed by the administrative organs of the SAR government under the original law.
If the National Security Council believes that the "Legal Practitioners Regulations" should be amended, it can only propose amendments, and the Legislative Council will ultimately decide whether to pass them.
He pointed out that it is an overstatement to think that this interpretation poses a threat to the judiciary, because the interpretation only deals with the participation of overseas lawyers in national security law litigation, and the powers of the Chief Executive and the National Security Council have not been affected or expanded by this interpretation.
Chen Hongyi｜NPC Interpretation and Overseas Lawyers NPC Interpretation｜Chen Hongyi: There is no denying the ruling of the Final Court, Li Zhiying can apply for a certificate from the Chief Executive to the National People's Congress Interpretation︱How does the "certificate" mechanism of the Chief Executive work?
Li Zhiying's employment certificate was overturned?
Interpretation by the National People's Congress︱Law Society: Cooperating with the government in the process of considering the revision of the "Regulations on Legal Practitioners" Interpretation by the National People's Congress｜Legal Work Committee: The effect of the interpretation can be traced back to the day when the National Security Law took effect｜Li Jiachao emphasized that there is no increase in powers, only clarification of national security NPC Interpretation of Law by NPC and Chief Executive｜Certificate from the Chief Executive is required if an overseas lawyer is hired in a national security case, otherwise the National Security Committee should intervene
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