Hong Kong Chief Executive John Lee delivers his policy address at the chamber of the Legislative Council in Hong Kong, Oct. 19, 2022.Vernon Yuen/The Associated Press
Frank Ching is a Hong Kong-based freelance journalist.
Ever since he became Hong Kong’s Chief Executive in July, John Lee has made clear what his priorities are: reviving the economy, ending any COVID-19 restrictions cutting off Hong Kong’s links with the rest of the world, and the full reopening of the border with mainland China.
He has made much progress on these counts. By winning Beijing’s trust, he has been given a free hand to deal with COVID-19 without having to follow the mainland’s “zero COVID” policies. By Dec. 29, all restrictions were lifted, aside from mask-wearing in certain public spaces. There was an explosion of joy as people celebrated the holidays without having to worry about tests, quarantines, close contacts, vaccine passes or how many people could sit at one table.
The easing of restrictions was accompanied by talks with the mainland on reopening the border, which has been closed for almost three years. The first phase of reopening is now expected on Jan. 8, with a set quota of people to be allowed quarantine-free travel. Throngs of visitors should have major benefits for an economy that’s now in recession.
At the same time, Mr. Lee is encouraging foreign investors and business people, some of whom have relocated to Singapore, to return to Hong Kong, so it can regain its former role as a regional and international financial, shipping and business hub. This will be more difficult, however, since it will involve convincing foreign governments and the international business community that Hong Kong is still governed by law, with an independent judiciary and basic freedoms, even after the national security law was imposed in 2020.
Mr. Lee insists that all freedoms enshrined in the Basic Law are still protected. In his first policy address on Oct. 19, 2022, he cited Hong Kong’s competitive advantages, including “a sound legal system.”
“The government will safeguard independent judicial power,” he said. “We will safeguard due administration of justice and the rule of law to enhance the confidence of the public and the international community in our rule of law.”
Recent events, however, have raised fresh doubts about the administration’s relationship to the judiciary.
Jimmy Lai, the former newspaper tycoon awaiting trial on national security charges – including one of collusion with foreign forces – has hired British barrister Timothy Owen to defend him. The government vigorously opposed this in court last year, but it has lost at every level, including in Hong Kong’s Court of Final Appeal on Nov. 28.
The CFA’s decision is supposed to be final. Not so, apparently, for the government.
Back in 1999, after the Hong Kong government lost a right-of-abode case known as Ng Ka Ling v. Director of Immigration, it asked China’s National People’s Congress Standing Committee for an interpretation of the Basic Law. The NPCSC proceeded to declare, among other things, that the CFA’s decision should be overturned. The government, which had lost in court, managed to prevail by appealing to Beijing.
This time, after the government lost in the CFA, Mr. Lee asked the NPCSC to interpret the national security law to clarify whether overseas lawyers who are not qualified to “practice generally” in Hong Kong should be allowed to engage in national security cases.
The NPCSC announced its decision on Dec. 30, but instead of ruling on whether Mr. Owen could defend Mr. Lai, it issued broad principles. It said that when a Hong Kong court hears cases involving crimes endangering national security, the court shall apply for a certificate from the chief executive regarding whether national security or state secrets are involved, and the certificate shall be binding on the court.
If a court doesn’t apply for a certificate, then a body known as the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, headed by the chief executive with a mainland official as an adviser, can step in.
In his request for an interpretation, Mr. Lee argued that overseas lawyers acting as defenders in criminal cases “may lead to national security risks,” according to the NPCSC. An overseas lawyer, it seems, is ipso facto not as trustworthy as a Hong Kong one. In its interpretation, the standing committee has in effect told Mr. Lee that it is within his power to deal with the issue.
It’s unclear if the CFA will be asked to apply for a certificate in Mr. Lai’s case. But whatever the procedure, the die has now been cast. Hong Kong’s Court of Final Appeal may retain its name, but the government certainly knows in its heart that there are ways to get around the finality of its decisions. One must only wonder now what the international legal and business communities will think of its ingenuity.