Tang Jiahua, a member of the Executive Council who is also a senior counsel, said that the Department of Justice's proposal to amend the "Legal Practitioners Regulations" does not affect the earlier ruling of the Court of Final Appeal that Li Zhiying, the founder of Next Media, hired Tim Owen, the British Queen's attorney, to come to Hong Kong to represent the defense , but Tim Owen may not be allowed to enter Hong Kong due to political reasons.
He believes that the amendment is not retroactive, and he also pointed out that the government is not banning overseas lawyers from coming to Hong Kong to participate in national security cases. I believe the legal profession will accept it.
The chairman of the Bar Association, Du Gankun, said that he has been in communication with the government, and he is happy to see that the proposal is in line with the association's thinking.
The Department of Justice submitted a document to the Legislative Council yesterday, indicating that it will amend the "Legal Practitioners Regulations", specifying whether the court handles whether overseas barristers are allowed to participate in cases involving national security. Before participating in cases involving national security, they must submit to the Chief Executive and obtain a certificate.
Tang Jiahua believes that the vast majority of British criminal barristers will not be affected by the amendments, but Tim Owen has attracted much attention in politics, so it is difficult to judge whether he can successfully come to Hong Kong in the end.
He also pointed out that if overseas barristers are allowed to come to Hong Kong to handle cases, they will leave after completion. If they are found to be suspected of engaging in activities endangering national security, it will be difficult to pursue them.
He described this amendment as not a "one-size-fits-all" ban on foreign lawyers coming to Hong Kong to participate in national security cases, and he believed that the legal profession would accept it.
Tang Jiahua emphasized that whether to allow lawyers to come to Hong Kong to handle cases is a government policy, but in the past, the British Hong Kong government handed over the power to the courts, which created the illusion that the relevant arrangements were part of the judicial review power.
He pointed out that courts in many common law countries will accept decisions made by executive agencies on diplomatic and national security grounds.
▼On February 17, Jimmy Lai filed a request for the Department of Justice to issue a statement that the interpretation of the law would not affect the judgment of the Final Court▼
Li Zhiying's case of violating the National Security Law was originally scheduled to start trial on December 1 last year, but due to problems with the interpretation of the law, it has been postponed until September this year.
On the other hand, Li Zhiying was charged with conspiracy to collude with foreign forces and was temporarily adjourned until September for trial.
Lai filed a petition with the High Court last Friday (17th), requesting the Department of Justice to issue a statement stating that the Standing Committee of the National People’s Congress’s interpretation of the provisions of the “Hong Kong National Security Law” will not affect the court’s previous approval to allow Tim Owen to defend on behalf of Lai. The ruling also requested the court to ask the Chief Executive for a certificate on whether Tim Owen and other overseas lawyers came to Hong Kong to practice in this case, whether it would involve national security.
Li Zhiying hired Tim Owen, Queen's Counsel of the United Kingdom, to interpret the law at the National People's Congress.
(See the picture below for details)
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Court approves Lebanese hiring of Tim Owen
In October 2022, Lai was approved by the Court of First Instance of the High Court to hire Tim Owen, Queen's Counsel, to defend his case involving violation of the National Security Law. The Department of Justice subsequently appealed, which was rejected by the Court of Appeal on the 9th of the following month.
The Department of Justice then applied to the High Court and the Court of Final Appeal for final leave to appeal, but both were rejected and Lai was required to pay legal costs.
National People's Congress Interprets Law After Court of Final Judgment
On December 30, 2022, the Standing Committee of the National People's Congress voted to pass the interpretation of Articles 14 and 47 of the National Security Law.
Article 14 of the "National Security Law" states that the duties of the National Security Committee are: to analyze and judge the national security situation in Hong Kong, to formulate policies to maintain national security; to promote the construction of legal systems and enforcement mechanisms for national security; to coordinate key tasks and major actions to maintain national security.
The work of the National Security Council is not subject to interference by any other agency, organization or individual in the SAR, and its decisions are not subject to judicial review.
Overseas lawyers are required to be recognized by the chief executive as stipulated in the provisions
As for Article 47, when hearing a case, the SAR court shall obtain a certificate issued by the Chief Executive on these issues when encountering issues concerning whether the relevant act involves national security or whether the relevant evidentiary materials involve state secrets. The certificate is binding on the court.
The issue of "whether overseas lawyers who do not have the full qualifications to practice in the Hong Kong Special Administrative Region can act as defenders or agents ad litem in cases of crimes endangering national security" is an issue that needs to be determined in this provision, so a certificate issued by the Chief Executive should be obtained.
Jimmy Lai Case｜Government Proposes Amendments to Overseas Barristers to Obtain a Chief Executive's Certificate to Participate in National Security Cases
Tang Jiahua said that the National Security Council will not ignore Li Zhiying's case if it does not target individual cases | Jasper Jasper: The first interpretation of the National Security Law is of great significance without compromising the local judicial power. Law︱Li Jiachao: Will revise the "Regulations on Legal Practitioners" as soon as possible, and complete 23 legislative interpretations by the National People's Congress Before the month's trial, the National People's Congress interpreted the law｜Chang Hongyi, a legal practitioner: Overseas lawyers can be banned from participating in the national security case. How does the "certificate" mechanism of the chief executive work?
Li Zhiying's employment certificate was overturned?
National People's Congress Interpretation｜Legal Work Committee: The effectiveness of the interpretation can be traced back to the day when the National Security Law came into effect︱Judicial institutions: Respect legally binding interpretations and will handle the National Security case without bias , Chief Executive's Powers and People's Congress Interpretation of the Law｜If you hire an overseas lawyer in a national security case, you need a certificate from the chief executive, otherwise the National Security Committee should intervene