16 January 2023
The 29 Principles, International Bar Association’s Human Rights Institute, Leitner Center for International Law and Justice at Fordham Law School, American Association of the International Commission of Jurists, International Association of People’s Lawyers (IAPL) Monitoring Committee on Attacks on Lawyers, International Association of People’s Lawyers (Australian Branch), Taiwan Association for Human Rights, Taipei Bar Association Human Rights Committee and Geneva Bar Association are calling on the Hong Kong government to respect the international norms and standards on judicial independence and legal representation in the case of media tycoon Jimmy Lai Chee-ying.
According to media reports on 10 January 2023, Jimmy Lai’s UK-based international legal team wrote to the UK Prime Minister Rishi Sunak requesting for an urgent meeting to discuss “potential ways to secure Mr Lai’s release” and they met with UK’s Minister for Asia Anne-Marie Trevelyan expressing concerns about Mr Lai being targeted by multiple prosecutions and lawsuits designed to silence opposition. Mr Lai’s UK lawyers took the actions as the Hong Kong and Chinese governments have been taking various steps to deprive Mr Lai’s right to a fair trial and his right to hire a lawyer of his own choosing.
On 28 November 2022, Hong Kong Chief Executive John Lee requested the Standing Committee of the Natinal People’s Congress (NPCSC) in Beijing to weigh in to interpret articles 14 and 47 of the Hong Kong National Security Law after the Hong Kong government lost its appeal in Hong Kong’s top court – the Court of Final Appeal – where the court dismissed the Hong Kong government’s attempt to prevent British barrister Tim Owen KC, of Matrix Chambers, from representing Mr Lai at his trial, who is himself a British national. The top court in Hong Kong saw no merits in the Hong Kong government’s arguments in justifying the ban of Tim Owen KC.
On 30 December 2022, the NPCSC ruled that Hong Kong courts should obtain a certificate issued from Hong Kong Chief Executive John Lee to certify whether an act involves national security. The ruling by the NPCSC means that whether Mr Lai can instruct a foreign lawyer to represent him at his trial, scheduled on 25 September 2023, depends on the Hong Kong Chief Executive and the Committee for Safeguarding National Security’s sole discretion under the NSL. If the courts failed to obtain a certificate from the Chief Executive under Article 47 of the NSL, the Committee for Safeguarding National Security has the power to intervene and issue a legally binding directive to order the Courts and the Chief Executive to do so in accordance with Article 14 of the NSL. Such order is not amendable to judicial review. The Committee for Safeguarding National Security has directed the Hong Kong government to introduce amendments to the Legal Practitioners Ordinance as soon as possible so as to ban Mr Owen from representing Mr Lai.
The Hong Kong government’s decision to ask for Beijing’s intervention following Hong Kong’s top court’s decision and the NPCSC’s decision to require Hong Kong courts to obtain a certificate from Hong Kong’s Chief Executive violate the international standards on judicial independence, in particular the United Nations Basic Principles on the Independence of the Judiciary. The Hong Kong and Chinese governments’ actions have violated principle 4: “There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.”
Foreign lawyers, who are not otherwise qualified to practise in Hong Kong, have always been allowed to represent their clients in Hong Kong Courts subject to the provisions of the Legal Practitioners Ordinance and Hong Kong’s common law tradition. The Hong Kong government’s decision to seek Beijing’s intervention raises serious concerns about Hong Kong’s autonomy as a special administrative region and the independence of the legal profession in Hong Kong.
According to article 1 and article 5 of the UN Basic Principles on the Role of Lawyers, “all persons are entitled to call upon the assistance of a lawyer of their choice”. Article 16 also requires that governments should “ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”. The Hong Kong government’s decision has clearly violated these international legal principles.
The 29 Principles, International Bar Association’s Human Rights Institute, Leitner Center for International Law and Justice at Fordham Law School, American Association of the International Commission of Jurists, International Association of People’s Lawyers (IAPL) Monitoring Committee on Attacks on Lawyers, International Association of People’s Lawyers (Australian Branch), Taiwan Association for Human Rights, Taipei Bar Association Human Rights Committee and Geneva Bar Association call on the Hong Kong government to respect Hong Kong citizens’ rights to hire a lawyer of his/her own choosing, including foreign lawyers, in accordance with international standards and Hong Kong’s common law tradition. We also call on the Hong Kong government to stop its political prosecutions against Mr Lai and other dissidents in the city.