Legal Practitioners (Amendment) Bill 2023
CHAN CHUN YING:
Deputy President, national security is a top priority for every country in the world. I believe that from state leaders to ordinary members of the public, no one would tolerate undue threat or damage to national security.
The Court of First Instance (“CFI”) has earlier granted the ad hoc admission of Tim OWEN, KC, as a barrister for a case in Hong Kong in which LAI Chee-ying, founder of Next Digital Limited, is alleged to have contravened the National Security Law (“NSL”), sparking dispute in the community over whether overseas lawyers not qualified to practise in HKSAR may pose national security risks when practising or acting as barristers in cases concerning national security in HKSAR.
The Standing Committee of the National People’s Congress (“NPCSC”) made an interpretation of Article 14 and Article 47 of NSL on 30 December last year, stating that in accordance with the provisions of Article 47 of NSL, the courts of HKSAR shall request and obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case concerning an offence endangering national security, and that the certificate shall be binding on the courts. Besides, regarding the question of whether overseas lawyers not qualified to practise generally in HKSAR may serve as defence counsel or legal representatives in cases concerning an offence endangering national security, a certificate from the Chief Executive shall be obtained. From this, we can see that the admission granted by CFI earlier is not consistent with the intent of NSL.
The Legislative Affairs Commission of NPCSC noted that during the deliberation on the State Council’s proposal, opinions were clearly expressed that the HKSAR Government should amend and refine the relevant local legislation in a timely manner, and resolve the legal issues encountered in the implementation of NSL through local legislation as far as practicable. The present amendments to the Legal Practitioners Ordinance (Cap. 159) (“the Ordinance”) seek to enhance the legal framework for ad hoc admission of overseas lawyers for national security cases, which is precisely a positive response to resolve the legal issues encountered in the implementation of NSL through local legislation.
Under the pre-amended Ordinance, defendants and plaintiffs in criminal and civil cases may engage a lawyer practising in another common law jurisdiction to represent them in the courts of Hong Kong after an application for ad hoc admission of the lawyer is made to CFI of the High Court through the Hong Kong Bar Association. Under normal circumstances, the court will grant the admission if it is satisfied that the application is in the public interest and the Department of Justice does not raise any objection.
The Bill provides for the general principle that ad hoc admission of overseas lawyers as barristers for national security cases is not to be granted, and seeks to resolve the question of whether an overseas lawyer may be admitted on an ad hoc basis for a national security case on a case-by-case basis. In fact, as colleagues have just mentioned, most jurisdictions in the world do not have an ad hoc admission mechanism in place, let alone allow overseas lawyers to participate in national security cases. Therefore, I support the case-by-case approach proposed in the Bill, that is, allowing overseas lawyers to participate in national security cases under exceptional circumstances, as opposed to the blanket ban approach.
Nevertheless, if an application is to be made for admission of an overseas lawyer for a national security case in Hong Kong, the court should not admit the overseas lawyer for the case unless it obtains a certificate from the Chief Executive certifying that the overseas lawyer’s participation in the case “does not involve national security” and “would not be contrary to the interests of national security”.
Given that the facts of some cases may be very complicated and cases may develop unpredictably with the emergence of new evidence, the Bill provides that if, in the course of the proceedings, there is a change of circumstances, e.g. additional national security risks exist or the Secretary for Justice has made a request, the court should request and obtain a new certificate from the Chief Executive in the light of the outcome of the review. This review mechanism serves as a safety net, allowing greater flexibility for the court in handling cases. I believe this can also minimize any possible threat to national security.
The amendments to the Ordinance highlight the respective roles of CFI and the Chief Executive on the relevant matters. In the past, applications for ad hoc admission were decided by the court. Yet, national security is actually the responsibility of the executive authorities, and it should be up to the executive authorities to decide what actions need to be taken to safeguard national security. The court should not make such decisions, nor is it appropriate to address the various relevant issues through judicial proceedings. Article 14 of NSL provides that “no institution, organization or individual in the Hong Kong Special Administrative Region shall interfere with the work of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, and that information relating to the work of the Committee shall not be subject to disclosure.” In view of the peculiar nature of a decision involving national security matters, the Chief Executive is not obliged to give reasons for not issuing a certificate or disclosing his considerations. I strongly support this provision, which is in line with NSL. Of course, some colleagues have just suggested enhancing transparency. However, I think the Chief Executive will be criticized no matter what reasons are provided at that time.
In fact, there is no conflict between safeguarding national security and protecting civil rights, and they can be pursued in parallel. The present amendments to the Ordinance are not only constitutional and lawful, but also fulfil the constitutional duty of the Hong Kong Special Administrative Region to safeguard national security. The executive authorities, the legislature and the judiciary of the SAR shall prevent, suppress and impose punishment for any act or activity endangering national security. Effectively safeguarding national security and the rule of law in Hong Kong will in turn reinforce the foundation of our rule of law.
Deputy President, given the fundamental and overriding importance of safeguarding national security, and on the premise of preventing potential national security risks associated with the participation of overseas lawyers in national security cases, the Bill strikes a balance in allowing overseas lawyers to participate in court proceedings in Hong Kong. Moreover, the proposed enhancements will not have adverse implications on the rule of law, the courts’ independent judicial power, and the parties’ right to choose their legal representation and right to a fair trial. For criminal and civil cases not concerning national security, plaintiffs and defendants will still be able to engage overseas lawyers of their choice through ad hoc admission. Therefore, I absolutely support the passage of the Bill.
I so submit. Thank you, Deputy President.