Changes must clarify foreign lawyers’ role in Hong Kong after public debate
- Core features of Hong Kong’s legal system will also have to be upheld by amendments regarding who can take part in national security law cases
A ban on lawyers from overseas working on national security cases was not, as many had expected, imposed by China’s top legislature last month.
Instead, the interpretation of the national security law left the decision to authorities in Hong Kong. The issue is now to be settled through changes to the city’s legislation.
There is no doubt that restrictions will be imposed, but the form and extent of those limitations remain open to debate.
Secretary for Justice Paul Lam Ting-kwok says the changes to the Legal Practitioners Ordinance will be made in the first six months of this year. Lam promised to listen to “constructive views” from lawyers and the wider public to “harness the collective wisdom”.
This is welcome. The interpretation pointed to powers enjoyed by the chief executive and a top-level national security committee, but it is not clear how these powers will be used. The changes to legislation should provide clarity.
Some pro-establishment figures have called for a blanket ban on lawyers without Hong Kong qualifications working on security cases. This would have the advantage of being clear-cut and easy to implement. But it is not necessarily in the best interests of the city’s legal system and its international reputation.
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The Bar Association opposes a total ban and has said there should be some flexibility. Victor Dawes, the Bar chairman, called on officials to exercise their powers with “great caution and restraint” given the potential ramifications for fundamental features of the legal system, such as an independent judiciary and protection of human rights.
Such views deserve consideration. A case-by-case approach to foreign lawyers would ensure the focus is on whether any national security risks arise. The lawyer and the nature of the case would need to be considered.
This could leave the door ajar for eminent practitioners in appropriate cases. It would preserve, even in national security cases, the long-standing practice of admitting top lawyers from overseas.
The interpretation was requested by the chief executive after the courts rejected a government bid to block the admission of a British lawyer to represent media tycoon Jimmy Lai Chee-ying in his foreign collusion trial.
Lawyers for the government in those proceedings advocated a blanket ban except in “exceptional circumstances”. Officials should now spell out what circumstances they had in mind. This might provide a good starting point for further discussion.
The proposed ban on foreign lawyers in security cases has ardent supporters and arch critics. Like it or not, restrictions will be put in place. The focus now should be on having a productive public debate and ensuring the legal amendments protect national security while upholding the legal system’s core features.
