In safeguarding national security, NPC’s interpretation on foreign lawyers is minimalist and reasonable
- A blanket ban on foreign lawyers, as some feared, has not happened. Instead, the interpretation simply guards against interference by malignant actors, and only in cases involving national security
Although nobody disputes that the national security law enables the NPC Standing Committee to interpret its provisions, there were concerns that a long-standing mechanism that enables eminent lawyers from elsewhere (invariably Britain) to conduct cases in the city on an ad hoc basis was in jeopardy.
In national security cases, however, there can be problems if an overseas lawyer is instructed, and these cannot be disregarded. As the national security law stipulates, Hong Kong has a constitutional duty to “safeguard national security” and it must “perform the duty accordingly”.
Indeed, Britain’s Deputy Prime Minister Dominic Raab has previously claimed that the national security law conflicts with both Hong Kong’s Basic Law and China’s obligations under the Sino-British Joint Declaration, a common view in Britain’s legal circles.
Such information, which could be of great interest to foreign intelligence agencies, clearly has to be protected, which is why the national security law provides for closed court hearings in some situations.
If a foreign intelligence agency sought access to either a lawyer’s case papers or information he gained during a national security trial in Hong Kong, he would face a conflict of interest. This is best avoided, not least because pressure may be brought to bear upon him to disclose classified information.
It has been suggested that any restrictions on a suspect’s ability to instruct an overseas lawyer violate the right to choose a lawyer guaranteed by the Basic Law, but this is misleading. The right means no more than that suspects can choose from the pool of lawyers in Hong Kong; there is no constitutional right to import a barrister.
The requirement that courts obtain a certificate from the chief executive when national security issues arise has been interpreted as being sufficiently comprehensive to cover the admission of overseas lawyers, and this means a certificate allowing an admission will only be issued if there are no national security concerns. If a certificate has not been obtained before an admission, as in Owen’s case (a situation unlikely to recur), the matter will be handled by the national security committee chaired by the chief executive.
Restraint needed in use of the power to ban foreign lawyers
The interpretation, moreover, only covers national security cases, and does not affect overseas lawyers seeking admission to handle other types of cases.
It is highly unusual for any jurisdiction to allow lawyers from elsewhere to conduct cases in its courts, but Hong Kong takes its global status very seriously. In most places, including Australia, Canada and the United Kingdom, only locally qualified lawyers conduct trials, and there is no question of outsiders handling national security cases. Although Hong Kong is an exception, this does not mean it cannot take reasonable steps to avoid any possible dangers, and this is now being done.
The NPC Standing Committee’s interpretation, however, is minimalist, proportionate and rational, and will help to prevent interference by malignant actors in cases involving national security.
Grenville Cross SC is a criminal justice analyst