At the end of 2022, the Standing Committee of the National People’s Congress (SCNPC) of the CCP interpreted the Basic Law and decided that the Chief Executive has the power to decide whether a case involves national security and whether overseas lawyers can participate in it, and whether overseas lawyers threaten national security.
The Hong Kong government is currently amending the Legal Practitioners Ordinance to restrict the participation of overseas lawyers in National security cases, which is being considered by the Legislative Council (LC). Satterthwaite questioned whether the proposed arrangement would be tantamount to transferring the judiciary’s decision-making power to the executive branch, which could affect the defendant’s right to choose a lawyer and to seek judicial review. She also pointed out that according to international human rights standards, the government should ensure that lawyers can perform their professional duties without harassment or undue interference.
In addition, Satterthwaite pointed out in the “National Security Law of Hong Kong” (HKNSL) that the notion of “national security” does not grant absolute discretion to the state, and the ambiguous charges outlined in the law contradict the International Covenant on Civil and Political Rights. According to the Covenant, such provisions must be precise and clear, which is not the case with the aforementioned law.
The legal profession in Hong Kong has highlighted a significant “gray area” within the definition of the four offenses mentioned in the Hong Kong National Security Law. This ambiguity grants the authorities the power to determine whether an individual has committed an offense under the law.
Legal scholar Eric Cheung Tat Ming from the University of Hong Kong pointed out that international human rights standards typically encompass the utilization or threat of force to safeguard freedom of expression and peaceful assembly under the definition of “secession.” However, Hong Kong’s National Security Law does not predicate the offense of “secession” on the existence of force.
Satterthwaite expressed concern regarding the absence of a jury and the bail arrangements for defendants under the HKNSL. She highlighted that such arrangements could result in indefinite detention without trial for defendants denied bail.
Hong Kong has traditionally relied on jury trials to sentence defendants, especially those facing life imprisonment, as this is a fundamental right that every defendant should be entitled to. However, the Hong Kong government’s recent decision to forego juries is purportedly aimed at “safeguarding the personal safety of jurors and their family members.” This move marks a significant departure from the usual practice of Hong Kong courts in handling most criminal cases.
Special Rapporteur Created by UN Human Rights Committee Focus on Violations of Legal System Rights
In 1994, the UN Human Rights Committee observed a surge in assaults on the autonomy of judges and lawyers, prompting them to establish the role of the UN Special Rapporteur on the Independence of Judges and Lawyers. Currently, the esteemed Satterthwaite holds this position, who is renowned as an international human rights scholar. Her expertise includes empirical research methods, measurements, and indicators in human rights, national security, and counter-terrorism. Additionally, Satterthwaite has provided her valuable insights on human rights as a consultant and advisor to prominent organizations such as the World Health Organization, the World Bank, and two UN Special Rapporteurs.CCP Ignores Letter from Former Special Rapporteur
The website of the Special Rapporteur contains a comprehensive list of legal provisions that pertain to judicial independence and related situations across various countries worldwide. The page dedicated to mainland China displays a letter dated May 1, 2019, from former Special Rapporteur Diego García-Sayán and other experts. However, as of now, the letter is still “pending a response from the government.”The UN is concerned about the implementation of the HKNSL The Human Rights Committee (HRC) urged to repeal
The UN has objected to the implementation of the HKNSL many times.In March, the National Security Police arrested Albert Ho Chun-yan, the former Vice Chairman of the Hong Kong Alliance, in Support of Patriotic Democratic Movements of China (HKASPDMC). He was remanded on bail on allegations of obstructing justice while he was already on bail for inciting subversion of state power. The Office of the UN High Commissioner for Human Rights (HCHR) has expressed deep concern about this incident and the ongoing case of the HKNSL. They have strongly urged the release of Albert Ho, highlighting the significance of upholding human rights in the face of political unrest.
The UN Office of the HCHR has voiced concerns about the HKNSL. In his inaugural speech at the UN Human Rights Council meeting in Geneva on March 7, Volker Türk, the newly appointed UN human rights commissioner, highlighted the CCP’s treatment of Uighurs, Tibetans, and other minorities in Xinjiang. He also expressed his dismay and concern over the consequences of the HKNSL.
In February, the trial of the “Hong Kong 47” case began, which involved legislators, activists, and community workers who were accused of participating in the pro-democracy movement during the Democratic primary election. During this time, Volker Türk emphasized the significance of complying with international human rights laws, particularly the International Covenant on Civil and Political Rights. He also shared the United Nations HRC’s 2022 findings, which urged the Hong Kong government to repeal the National Security Law and the crime of incitement.
The HRC issued a report on July 27, 2022, scrutinizing the Hong Kong government’s compliance with the International Covenant on Civil and Political Rights. The report denounced the arrest of over 200 citizens and the disbandment of trade unions and student unions following the implementation of the HKNSL in 2020. The Commission urged the Hong Kong government to rescind the HKNSL, emphasizing the importance of upholding citizens’ civil liberties and political rights.
In addition, in March, the UN Committee on Economic, Social, and Cultural Rights (CESCR) released its concluding observations, citing a report highlighting the HKNSL’s role in eradicating judicial independence in Hong Kong. The report further reveals that the law has been utilized to pressurize academics, curtail academic freedom, and amplify censorship of satirical content in films and plays, thereby infringing upon the right to form trade unions. The committee also urged abolishing the “national security hotline.”
Amendments to the Legal Practitioners Ordinance
Stemming from the obstruction of Jimmy Lai’s hiring of a King’s Counsel caused the CCP’s concern about the Hong Kong legal professionThe Hong Kong government has amended the Legal Practitioners Ordinance in light of Jimmy Lai Chi-ying’s recent case. The founder of Next Media Group was charged with conspiring to endanger national security by colluding with foreign countries or forces outside Hong Kong under the HKNSL. He was granted permission by the High Court to hire Tim Owen KC to defend him. Despite the Department of Justice’s objection failing for the third time at the Court of Final Appeal on Nov. 28, 2022, Chief Executive Johnn Lee announced on the same day that he would request an interpretation of the Basic Law from the NPC. The objective was to clarify whether an overseas lawyer or barrister, who is not fully qualified to practice in Hong Kong, can handle cases related to crimes against national security following the legislative intent and purpose of the HKNSL.
On December 30, 2022, the CCP’s Standing Committee issued an interpretation of Articles 14 and 47 of the HKNSL. The interpretation confirms that the responsibility of handling disputes related to hiring foreign lawyers in national security cases falls under the “National Security Committee” jurisdiction led by Chief Executive John Lee. Additionally, the interpretation emphasized that Hong Kong courts must obtain a certificate issued by the Chief Executive when hearing a case to determine whether “the act in question involves national security.” This certificate holds binding authority over the courts.
On Jan. 19, John Lee declared at the Chief Executive’s Question and Answer Session in the LC that the Government would introduce amendments to the Legal Practitioners Ordinance as soon as possible to address the issue of overseas lawyers without full local practicing qualifications taking part in national security cases.
Ordinance Amendment Consultation Was only 7 days
The LC has established the Bills Committee on the Legal Practitioners (Amendment) Bill 2023 and, after conducting two meetings on March 31 and April 4, respectively, has completed the clause-by-clause examination. However, the public consultation period lasted only seven days, spanning the Ching Ming Festival holiday and the weekend, resulting in only four working days for consultation. Despite the limited consultation period, the Bills Committee proceeded with their examination. The number of submissions received from organizations or individuals was limited to six. Out of the five submissions made by the public, a vast majority supported legislative amendments to restrict the participation of overseas lawyers in cases under the HKNSL.The Bill will resume its Second Reading debate held on April 28 at the House Committee meeting.
