Letting Hong Kong leader decide on foreign lawyers in national security trials erodes rule of law: US envoy

The US government’s top envoy to Hong Kong on Wednesday said a recent ruling by the Chinese government that handed the city’s chief executive the power to decide whether a defendant in a national security trial should be allowed to use a foreign lawyer undermines Hong Kong’s rule of law.

Beijing’s interpretation of the national security law that it imposed on Hong Kong in 2020 “could further undermine the independence of Hong Kong’s judiciary system by expanding the Hong Kong executive branch authority to make decisions affecting cases without judicial oversight”, Consul General Gregory May said.

“In light of these and other developments companies should be aware that the risks faced in mainland China are now increasingly present here in Hong Kong,” he added in remarks delivered at a Centre for Strategic and International Studies event for the Washington-based think tank.

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In clarifying two clauses in the national security law – after Hong Kong’s top court upheld an earlier ruling that allowed jailed media tycoon Jimmy Lai Chee-ying to hire a British barrister for his pending national security trial – the National People’s Congress (NPC) Standing Committee did not ban foreign lawyers.

Instead, it decided the city’s courts would need the approval of the chief executive or a committee established to safeguard national security to allow the participation of foreign lawyers.

The national security law has been one of the biggest sources of tension between Washington and Hong Kong as well as part of a broader American disagreement with Chinese government policies in recent years.

Former US president Donald Trump in 2020 signed a law to sanction individuals and banks deemed to have aided the erosion of Hong Kong’s autonomy and an executive order ending the city’s preferential trading status soon after the national security law took effect. US President Joe Biden’s administration has maintained Trump’s hard-line position on Hong Kong and mainland China.

Kurt Tong, who served as US consul general to Hong Kong until 2019, called Beijing’s interpretation “a mixed bag” and something that “could be seen as consistent with maintaining Hong Kong autonomy”.

“Some expected the standing committee to simply issue a blanket decision saying that no foreign lawyers are allowed in national security cases, with that policy established and dictated from Beijing,” Tong said.

“On the other hand, the fact that the Hong Kong government saw fit to challenge the courts’ decision on foreign lawyers in the first place was a knock against judicial independence,” he added.

Overseas lawyers could be ‘banned from Hong Kong security trials within 6 months’

May on Wednesday accused Hong Kong’s government of curtailing press freedoms and other violations of its chartered semi-autonomous status since the enactment of the new law in response to anti-government protests in 2019.

While calling on authorities in Beijing “to cease its dismantlement of Hong Kong’s democratic institutions, autonomy and rule of law” and for the Hong Kong government to drop charges against “individuals unjustly detained”, May also called for more academic exchange and continued business engagement with the US.

Citing the need for Washington to help “build the next generation of scholars, business leaders, and government officials” with expertise in the region, May said the US government would “initiate some programmes to encourage renewed exchanges between American and Hong Kong universities and think tanks”. While academic freedom has been curtailed, he said, this problem was not as acute as on the mainland.

May pointed to a recent decision by Hong Kong immigration authorities to deny entry to Michiko Kiseki, a Japanese photojournalist who documented the widespread anti-government protests of 2019.

The Hong Kong Journalists Association reported on January 13 that the journalist was deported last month after being detained for one night and questioned about her work.

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May said local Hong Kong media’s minimal coverage of a lone protester known as “Bridge Man” offered further evidence of growing self-censorship in the city. The protester was arrested after unfurling banners in Beijing critical of Chinese President Xi Jinping, one of several incidents late last year that sparked protests outside China.

Ho-fung Hung, a political economy professor at Johns Hopkins University’s School of Advanced International Studies, said the Hong Kong government’s forthcoming enactment of another national security-related law would show whether the city would pivot more in the direction that May was urging.

Hung argued that the Article 23 security law – whose passage is expected later this year – could further impinge on non-political activities like financial analysis, a function that is crucial for the well-being of Hong Kong’s economy.

He cited legal action by Hong Kong’s Securities and Futures Commission against American short-seller Andrew Left, head of Citron Research, as illustrative of what could happen to more securities analysts in the city if the Article 23 law ended up being excessively broad in determining what constitutes a state secret.

The investigation of Left found that he made a profit of about HK$1.7 million (US$217,000) by shorting 4.1 million shares in China Evergrande Group before issuing a scathing report on the company in 2012.

A decade later, it emerged that Evergrande had become the world’s most indebted property developer amid a property slump that has dogged China’s economy.

Left was banned from trading on Hong Kong’s stock market for five years and ordered to repay HK$1.6 million in trading profits and about HK$4 million in legal expenses, following a ruling by the Market Misconduct Tribunal in 2016.

“If the Article 23 is enacted in the most draconian way,” Hung said, “it is potentially troubling because people who are totally non-political can be suspected or charged for disguising [themselves] as a scholar, journalist or businessman but actually spying for foreign powers.”

Tong said businesses should watch for the details of the Article 23 law, but added that it might not matter as much with the national security law already in place.

“The new legislation may just reinforce the existing national security law, rather than be additive. We will have to wait and see what the text says,” he said. “From a foreign business perspective, it is unnecessary for Hong Kong to go to the trouble of passing additional measures to make Hong Kong politically quiescent, since things have pretty much gone quiet in terms of political opposition.

“Businesses should very carefully track trend lines associated with judicial independence, and freedom of information and access to information,” Tong added.

“Information is what drives business in a service economy like Hong Kong, and any new steps to use Hong Kong law to clamp down on political activity have the potential, ultimately, to also influence the commercial law environment,” he said.

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