Hong Kong courts have the power and duty to ensure that the Beijing-imposed national security law is properly applied, and to step in when the city’s national security committee has overstepped its power, a senior barrister for media tycoon Jimmy Lai argued on Friday.
The pro-democracy media chief, who did not appear in court, was represented by Senior Counsel Robert Pang, as well as barristers Steven Kwan and Albert Wong in front of Chief Judge of the High Court Jeremy Poon at the Court of First Instance.
Lai, 75, is being prosecuted under the Beijing-imposed national security law and the colonial-era sedition law. He stands accused of two counts of conspiracy to collude with foreign forces, and one count of conspiracy linked to allegedly seditious publications.
Another charge of collusion with foreign forces under the sweeping security legislation has been left on court files, meaning that the prosecution reserves the right to charge but cannot do so without a judge’s authorisation.
The chief judge dealt with an application from Lai’s team for leave to apply for judicial review on Friday. The application was made against the city’s national security committee’s decision concerning the admission of King’s Counsel Timothy Owen as Lai’s defence counsel in the national security trial.
Lai’s case sparked a debate on the participation of foreign lawyers not qualified to practice in Hong Kong in the city’s national security cases.
The Court of First Instance granted an application to admit Owen as Lai’s representative in October last year despite objections from the Bar Council and the Department of Justice.
The government’s three subsequent attempts to bar the king’s counsel from the trial were thrown out by the Court of Appeal and the Court of Final Appeal. Following the defeat at the top court, Chief Executive John Lee invited Beijing to intervene on the matter.
The top decision-making body of China’s legislature, the Standing Committee of the National People’s Congress (NPCSC), passed an interpretation on the national security law last December following Lee’s invitation.
The NPCSC did not rule definitively on whether overseas lawyers could participate in national security cases in Hong Kong.
Instead, the decision stipulated that the city’s courts have to request certification from the chief executive on whether the admission of the overseas counsel in such cases would involve national security.
If courts fail to obtain certification from the chief executive, then the Committee for Safeguarding National Security have to step in, according to the NPCSC decision.
Overstepping powers
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Lai’s team filed the legal bid after they said the committee had ruled that the admission of Owen could harm national security and had advised the Immigration Department to reject any new visa application from the king’s counsel.
Pang said on Friday that, while it was within the committee’s purview to determine whether the admission of an overseas counsel would involve national security if the court did not request certification, the committee had overstepped its powers by advising the Immigration Department.
The senior counsel argued that the national security committee should have left it to the court to decide whether Owen should be allowed to serve as a defence counsel in Lai’s case.
Jurisdiction
Ex-justice minister Rimsky Yuen represented the national security committee, the director of immigration, and the secretary for justice on Friday. He said that, not only did the committee not overstep its powers, but the court also lacked jurisdiction to handle challenges against the committee’s decision.
Yuen cited the NPCSC decision, which reiterated that under the sweeping security legislation, decision made by the committee shall not be subject to judicial reviews.
Pang, on the other hand, said that the court has the power and duty to ensure that the security law was properly applied, and that it had jurisdiction to handle challenges against the committee’s decision when the committee had overstepped its powers.
“A critical principle of the rule of law is that a body, organ, [or] government department cannot exceed the power that was granted to it whether by local statue or by a national law,” Pang said.
Lai’s representative went on further to say that following the government’s logic, the committee could not be challenged even when it was “obvious” that it was acting in excess of its prescribed powers.
“The [national security committee], one day, could decide that anyone in this room is a threat to national security and should be locked up for the rest of his life, and – according to the logic of [Yuen] – the court cannot step in,” said Pang, adding that people would be “saying goodbye” to a considerable part of the rule of law if the government’s logic was right.
Yuen, objecting to Pang’s argument and example, said that Hong Kong courts only had jurisdiction to deal with cases involving offences concerning national security, but not the challenges against the security committee.
The ex-justice minister also said that, in some circumstances, the executive was in a better position than the judiciary to decide on national security matters.
Yuen added that because information on the national security committee’s work cannot be disclosed, the court would not be able to deal with challenges against the committee’s decisions.
Yuen urged the court to reject the media tycoon’s legal bid as soon as possible, and cited a former judge as saying that “public authority should not be having the threat of [judicial review] hanging over their heads.”
Poon, following submissions from both parties, said he will hand down a decision within a month.
The High Court is also scheduled to handle another application from the media tycoon to halt the trial next Tuesday.
The media tycoon, who was sentenced to five years and nine months in prison over a fraud case in December last year, has been detained for over two years.
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