The people I feel sorry for, reading this week’s newspapers, are those Law Society worthies who recently returned from a trip abroad in which they reassured overseas colleagues that the rule of law was alive and well in Hong Kong.

basic law hong kong
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Scarcely had the poor legal lambs returned than the Hong Kong government produced a new demonstration of what the rule of law now means. The law applies to you and me, but not to the government. Because if they lose in the courts they will simply seek to change it.

I am afraid that whatever intricate legal verbiage is offered in defence of the decision to ask the Beijing authorities to overrule the judicial decision to allow British barrister Tim Owen to represent Jimmy Lai in his upcoming trial, the view of the matter outside Hong Kong is likely to be critical.

One could hope that the rather similar decision to hastily plug the “loophole” revealed by a judicial review of the Health Secretary’s power to invalidate vaccination certificates might be overlooked outside Hong Kong. After all, in most of the world Covid is an old story.

Timothy Owen
King’s Counsel Timothy Owen leaving the Court of Final Appeal in Central on November 25, 2022. Photo: Candice Chau/HKFP.

Mr Lai is another matter. When people are considering a territory’s claims to be an international city offering the full range of human rights and freedoms, the jailing of the owner of a pro-democracy newspaper attracts attention.

You have to wonder why this particular row was considered worth the reputational risk. After all, whoever represents Mr Lai it is difficult to envisage him emerging alive from prison, in the absence of an upheaval so drastic that even imagining it is probably a national security offence.

The decision of the Court of Final Appeal (CFA) does not decide the legal question which seems to be bothering our leaders, because the judges refused to entertain the latest thoughts on the matter from the Department of Justice on the (entirely correct) grounds that they could only consider arguments which had been raised in the courts below. This means that in a future case the CFA can reconsider the whole matter in the light of the Department of Justice’s (DOJ’s) belated brainwave.

You have to wonder if senior officials have developed a suspicion that judges are getting a little resistant to the justice department’s “leave no stone unthrown” approach to people the government disapproves of, and need a reminder that their decisions are not final.

Department of Justice
Department of Justice. Photo: GovHK.

Chief Executive John Lee said that there was “no way” of ensuring that overseas lawyers would observe the “duty of confidentiality” in the national security law. But this hardly seems relevant to Mr Lai’s case, which will presumably rely heavily on the contents of his newspapers – not really a secret.

Mr Lee went on to say that there was no way of ensuring an overseas counsel would not have a conflict of interest, and there was also no way to ensure that he has not been “coerced, compromised or in any way controlled by foreign governments, associations or persons.”

But this is surely taking paranoia – or patriotism – to absurd lengths. It is a characteristic of Hong Kong trials that they are held in public. Judges will insist that speeches are relevant. The duty of defence counsel is to do his best for his client. Where is there an interest for wicked foreigners here?

And after all, foreign lawyers are not the only ones who may have a conflict of interest. The Department of Justice was quite happy to employ one on to argue on its own behalf. And local lawyers have other pressures to worry about. Cynical observers may attribute to the Hong Kong government a desire to ensure that defendants accused of national security offences are represented only by local lawyers who can be surreptitiously punished for excessive zeal.

Well, if we are going to have announcements of this kind one would hope the organisers would come up with some more persuasive supporters. Mr Lee was backed up by a WeChat post from the State Council’s Hong Kong and Macau Affairs Office, a source which cuts little ice in Hong Kong and less overseas.

john lee
Chief Executive John Lee met the press on November 29, 2022. Photo: Kyle Lam/HKFP.

This pushed the curious line that the decision to admit Mr Owen violated the bit in the National Security law which obliges “the executive, legislative and judicial authorities to prevent, stop and punish activities which endanger national security.”

Indeed. But surely this is not a definition of a new offence or a new duty for judges. The role of the judiciary in protecting national security is to enforce the national security law and punish those who infringe it. Nobody has been charged with an infringement.

The anonymous Wechatter went on to say that the CFA’s decision was “against the purpose of legislation and logic in legal contexts,” which perhaps sounds better in Mandarin than in English, and had aroused strong discontent among people who “love the country and love Hong Kong” and “those with righteousness in the legal sector.”

Then we had a supportive spokesman from the Liaison Office, who also claimed to be channelling local discontent among righteous and legal circles. The decision, he said, “not only has created convenience for foreign forces intervention but also damaged the professionalism of local lawyers and the rule of law in Hong Kong.”

I do not remember similar concerns about professionalism and the rule of law when the DoJ was trying to import a prosecutor.

Anyway if I were Mr Lee I would try to avoid having controversial announcements from him flying in formation with supportive offerings from official mainland organs. Or we might start wondering who is in charge?

HKFP is an impartial platform & does not necessarily share the views of opinion writers or advertisers. HKFP presents a diversity of views & regularly invites figures across the political spectrum to write for us. Press freedom is guaranteed under the Basic Law, security law, Bill of Rights and Chinese constitution. Opinion pieces aim to point out errors or defects in the government, law or policies, or aim to suggest ideas or alterations via legal means without an intention of hatred, discontent or hostility against the authorities or other communities.

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Tim Hamlett

Tim Hamlett

Tim Hamlett came to Hong Kong in 1980 to work for the Hong Kong Standard and has contributed to, or worked for, most of Hong Kong's English-language media outlets, notably as the editor of the Standard's award-winning investigative team, as a columnist in the SCMP and as a presenter of RTHK's Mediawatch. In 1988 he became a full-time journalism teacher. Since officially retiring nine years ago, he has concentrated on music, dance, blogging and a very time-consuming dog.