The Hong Kong Bar Association has urged the authorities to exercise the power confirmed by Beijing’s recent interpretation of the security law with ‘caution’ during the opening of the new legal year.
The city’s justice minister and a solicitors group defended Beijing’s recent ruling, saying that it had not granted new powers to the chief executive or national security authorities. The city’s courts were also urged not to “usurp” the legal functions of other government organs.
Speaking at the Ceremonial Opening of the Legal Year 2023, Chief Justice Andrew Cheung said the courts must respect and uphold Hong Kong’s constitutional order under China’s Constitution.
The courts were duty bound to fully exercise their power under the Basic Law and other Hong Kong legislations, Cheung said.
“However, it is equally important that they do not usurp the functions, powers or jurisdiction vested in other organs or bodies under the Basic Law, or… the Constitution, or to purport to exercise judicial power that they have not been conferred with,” he added.
Interpretation of security law
The Chairperson of the Hong Kong Bar Association Victor Dawes said Beijing’s first interpretation of the national security law last month “understandably prompted discussions about the rule of law and judicial independence in Hong Kong.”
Following four failed attempts by the government to block the admission of King’s Counsel Timothy Owen in the high-profile national security case against media mogul Jimmy Lai, China’s top law-making body interpreted the national security law after being invited to do so by Chief Executive John Lee.
The interpretation confirmed that the chief executive and a national security committee had the power to decide whether a foreign counsel not qualified to practice in Hong Kong could participate in national security cases.
Dawes said the exercise of any power by the city’s leader or the committee had important ramifications on “the right to be legally represented, the right to a fair trial, and the perception of fairness in a trial,” which he said are “cornerstone features of our legal system.”
“We urge and expect the Chief Executive and the Committee to exercise their power with great caution and restraint, with these fundamental matters in close view,” he said.
Meanwhile, the Secretary for Justice Paul Lam said suggestions that the interpretation had expanded the powers of the city’s leader or the committee and put them “above the law” were “plainly wrong and misconceived.”
“The Interpretation is, by definition, a clarification of the original intent and purpose of those provisions; it does not confer any new power on anyone,” Lam added.
Echoing Lam, the President of The Law Society of Hong Kong Chan Chak-ming said the interpretation was a “good example” of the authorities’ commitment to faithfully implementing “One Country, Two Systems” within the Basic Law.
Chan said Beijing’s recent interpretation of the security law “provided procedural guidance on existing provisions” and left the handling of the case “entirely in the remit of the judiciary.”
Public criticism
Addressing public criticism of the judiciary, Chief Justice Cheung said it was “wrong to criticise a judge simply for applying laws which one does not like or agree with,” as “laws are not enacted by judges.”
Cheung said that judges in Hong Kong have handled cases attracting public or international attention “with great professionalism,” irrespective of whether they were designated as national security judges.
The chief justice added that some views on court decisions might stem from “an inadequate understanding of the adjudication process.”
During his speech, Dawes said many members of the Bar Association had taken up “sensitive and difficult” criminal cases in the past few years.
The leader of the barristers group said it was “unfortunate” that these lawyers were criticized because of their role in defending such clients.
He said the public must appreciate that lawyers were required to appear in court “not because of any sympathy on their part with the aims or methods of the accused,” but their professional duty.
Overseas non-permanent judges
The judiciary announced on Friday that retired justice of the High Court of Australia Patrick Keane had been recommended as an overseas non-permanent judge at the city’s Court of Final Appeal.
Two British judges – Lord Robert Reed and Lord Patrick Hodge – resigned from the top court last year, citing security law concerns.
Dawes said Keane agreeing to join Hong Kong’s judiciary “is a clear vote of confidence to our apex court.”
Speaking on behalf of The Law Society of Hong Kong, Chan also said they were grateful to all judicial officers and overseas non-permanent judges serving in Hong Kong’s courts.
“In recent years, attempts to politicise some of the court’s work have presented challenges to the perception of judicial independence,” Chan said.
“Their support speaks louder than words about the respect they have for the commitment of Hong Kong’s judiciary to the rule of law and judicial independence,” he added.
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