Law change eyed on foreign lawyers in security cases

Courts should get approval from the chief executive over the admission of overseas lawyers in national security cases, the Department of Justice has proposed.

The DoJ's proposal was contained in a document submitted to the Legislative Council yesterday, three days after jailed media tycoon Jimmy Lai Chee-ying asked the High Court to declare the legitimacy of the Court of Final Appeal's earlier ruling allowing him to be represented by London-based king's counsel Tim Owen.

The National People's Congress Standing Committee on December 30 ruled that Hong Kong courts need to obtain an approval certificate from the chief executive when considering applications for overseas lawyers to serve as defence counsel or legal representatives in national security cases. The DoJ proposed to amend the Legal Practitioners Ordinance regarding the power of the court to admit barristers on an ad hoc basis.

"For any case concerning national security, the court must, before making any order as to the ad hoc admission of a person for the case, request and obtain a certificate from the chief executive under Article 47 of the national security law," the DoJ proposed.

It said the chief executive will certify two matters in the certificate including "whether the person's practicing or acting as a barrister for the case involves national security" and "whether the person's practicing or acting as a barrister for the case would be contrary to the interests of national security."

The court must not admit the applicant if it is considered in the certificate that the person's practicing or acting as a barrister for the case involves national security and would be contrary to the interests of national security.

The DoJ also proposed that the certificate apply to all national security cases no matter if it is civil or criminal or otherwise, including offenses under the national security law, or other offenses endangering national security.

"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 parties' right to choose their legal representation and the right to a fair trial," it said.

The government plans to table the bill to the Legco in the first half of the year.

In a writ filed to the High Court on Friday, Lai asked it be declared that the interpretation by the NPCSC on December 30 last year will not affect the rulings by the Court of First Instance of the High Court, the Court of Appeal and the Court of Final Appeal. Those allowed him to be represented by Owen in his upcoming trial over charges of collusion with foreign forces which is due to start on September 25.

Or, as Lai claim, the DoJ could instead obtain a CE certificate to decide whether Owen would be allowed to defend him.

Lai, the 75-year-old founder of the defunct Apple Daily, asked the DoJ to reply to his request within 14 days and grant him an early hearing for his appeal.

sophie.hui@singtaonewscorp.com