Hong Kong’s government could bar foreign lawyers from working on national security cases under a new law, sparking fears about the integrity of the city’s legal system as the government seeks to restore its international reputation.
Hong Kong’s leader, former top cop John Lee, could ban foreign lawyers on national security grounds under a legislative amendment unanimously approved Wednesday by the Legislative Council, the city’s legislature dominated by pro-Beijing loyalists.
Foreign lawyers “may pose a threat to national security” when practicing or working as barristers in national security cases, Hong Kong officials argued in a submission to the legislature.
The move to limit foreign lawyers, while widely expected, will send chills through Hong Kong’s legal community. The city’s internationally recognized common law system is central to its claim as a global financial hub, and foreign nationals have long held prominent positions in its legal community. Foreign judges and lawyers qualified to practice abroad regularly sit in the region’s top courts and participate in civil and criminal cases.
A foreign lawyer with more than two decades of experience in Hong Kong said the amendment “goes far beyond national security interests”. “International lawyers will ask why the Hong Kong government has taken a sledgehammer to crack the little nut.”
The change comes after the Hong Kong government fought to prevent jailed media mogul Jimmy Lai from retaining British barrister Timothy Owen to defend him in a national security case.
Hong Kong’s Supreme Court overturned a government appeal in November, ruling in favor of Lai, who now faces charges of foreign collusion in connection with his ownership of the defunct pro-democracy Apple Daily newspaper. He has pleaded not guilty.
The city government retaliated and asked China’s top legal body to intervene. Beijing responded by ruling that Hong Kong’s leader can determine the participation of foreigners in such cases.
Hong Kong is seeking to protect its international standing following three years of tough pandemic controls following pro-democracy protests in 2019, followed by an exodus of investors and residents and a crackdown on the territory’s civil liberties. Beijing responded by imposing comprehensive national security measures in 2020. The law on the territory under which defendants are imprisoned for life.
Hong Kong’s justice minister, Paul Lam, stressed that there was still a “real opportunity” for foreign lawyers to participate in some national security cases, and that the power to ban them was “not unique to Hong Kong”. The chief executive already has the power to appoint judges to hear national security cases, in which defendants are not guaranteed a jury trial.
“Our system, even under our reforms, is very, very liberal,” Lam added.
But legal experts and analysts said most foreign lawyers were likely to be excluded from security cases, raising concerns that the reform would undermine the confidence of the international business community in Hong Kong’s legal system.
Bing Ling, an expert on Chinese law and professor at the University of Sydney, said while other countries barred foreign lawyers from working on national security cases, Hong Kong’s multinational legal community helped the region maintain ties with other common law countries.
“The door is not completely closed to foreign lawyers participating, but . . . The prospect of foreign lawyers participating in national security cases will not be very good,” Bing said. “This is very unfortunate.”