tim's experiment

The Hong Kong Government continues to exhibit a strange and disproportionate preoccupation with the legal proceedings against Jimmy Lai, the former proprietor of a frisky tabloid not much given to admiring coverage of the administration.

Some weeks ago China’s National People’s Congress Standing Commmittee ruled, at the request of local officials, that Hong Kong courts will need to obtain a certificate from the Chief Executive when considering whether to allow overseas lawyers to represent defendants in national security cases.

This followed a spirited tussle in the courts here, in which the Department of Justice objected to Mr Lai’s plan to instruct a London-based barrister on his behalf. This bout went all the way to the Court of Final Appeal, where the department lost on the rather technical basis that it was seeking to advance arguments which it had not brought up in earlier hearings.

But these days any defeat in the courts for the government is temporary. If appeals fail it will change the law, either through Legco or by seeking an “interpretation” from the NPC Standing Committee.

It is difficult to see why the government is so exercised over Mr Lai’s choice of counsel. His particular case does not, as far as we know, involve any state secrets which should not be shared with foreigners. It appears to centre round some very public expeditions to the USA.

It would be tempting to infer that the squabble is merely a continuation of the campaign to get at Mr Lai by any means available. If he wants something it must be opposed as a matter of principle.

Anyway the latest development was rather predictable and uncontroversial, given the history so far. The department unveiled its proposed local legislation to give effect to the Standing Committee’s “interpretation”.

This will involve an amendment to the Legal Practitioners Ordinance. Courts hearing applications for overseas counsel will have to ask the Chief Executive whether the case involves national security, and whether allowing the proposed gwailo barrister to take the case would jeopardise national security. If the Chief Executive certifies that these two possibilities are in fact realised, then the application to deploy a foreigner must be refused.

I could have swallowed this with a silent grimace, if it were not for the statement accompanying it, which went like this:

The legislative proposal will not have adverse implications on the rule of law, the court’s independent judicial power as guaranteed by the Basic Law, and the party’s right to choose their legal representation and the right to a fair trial.

Paper submitted to Legco

Those of us who wish to believe that our government tells the truth most of the time will have to hope that this statement was originally penned in a more defensible form in Chinese, and badly translated. Because it is plainly not true.

The right to overseas counsel is not a big deal for most of us. It is a small twig on the branch which is the right to the lawyer of your choice, which in turn is a fairly minor offshoot of the right to a fair trial.

The proposed change could legitimately be defended as a minor reduction in defendants’ rights, applicable only in a tiny number of cases. After all how many defendants of any kind can afford to import an overseas barrister, a process which tends to involve First Class travel and a long stay in the Mandarin Hotel, quite apart from the fees?

So you can say, if you wish, that this will affect very few people. For them, though, it is clearly an infringement to the right to counsel of their choice, and an honest government would admit this.

Similarly the independent judicial power of a court is clearly diminished if in a certain type of proceedings it is required to follow the instructions of the Chief Executive. It may not come up often, but when it comes up there is no point in saying that black is white and the jurisdiction of the court is not diminished.

The Department of Justice could have argued – if it allowed its muse to be hampered by such irrelevant considerations as honesty – that the effect of the changes proposed would be very limited, both in the number of instances in which it is likely to come up, and the effect on the proceedings when it does. It could further have argued that this occasional blip in the smooth progress of justice was a necessary price to pay for the important objective of safeguarding national security.

Instead we get the “nothing is happening” argument again.

This sits uncomfortably with the government’s continuing willingness to ignore completely the District Councils Ordinance. Latest explanation for this is that there is no mention of the councils in the Basic Law – which might be said of quite a lot of topics on which all legislation is local – and that work is in progress on a new arrangement which will conform to the Basic Law and ensure that “only patriots rule Hong Kong”.

These are two fat red herrings. Nobody has suggested at any time in the last 25 years that the existing arrangements conflict with the Basic Law. The councils are purely advisory and members no longer have any role in the selection of the Chief Executive, so they do not in any sense “rule Hong Kong”, whether they are patriotic or not.

Still, just in case, they have been required since 2021 to take “an oath … that the oath-taker will uphold the Basic Law and bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”.

It is difficult to resist the conclusion that the government is simply ignoring the ordinance while it tries to come up with a procedure which looks like an election but returns the right people. This is a difficult task and likely to take some time. In the meantime the rule of law stops at Chapter 547 of the Laws of Hong Kong.