Thread by @XinqiSu

A #thread on what led to HK leader's propose of first interpretation of #NSL, what questions have arisen from his proposal, and what may be at stake as the matter continues to unfold.

It started with #JimmyLai hoping to engage veteran British lawyer Tim Owen KC for #NSL trial.

Jimmy Lai, founder of the now-shuttered #AppleDaily, is charged of 2 counts of "conspiracy to collude with foreign forces" under the #NSL and 1 count of "conspiracy to publish seditious publication" under HK's Crimes Ordinance. The former can lead to life in jail.

While all the other individuals involved in Lai's case have pleaded guilty, Lai and 3 #AppleDaily companies were originally scheduled to stand trial from 1 Dec. The date was fixed by 3 designated #NSL judges although Lai's HK lawyer made it clear he would not be available.

Hence Lai's legal team, at the end of Aug and soon after trial date was fixed, sought consent from the DOJ and the HK Bar for ad hoc admission of Tim Owen KC to represent Lai in his #NSL trial.

Both DOJ and the Bar opposed, on these grounds:

On 19 Oct, Jeremy Poon, chief justice of the High Court, ruled in favour of Tim Owen KC's admission, saying "Given Mr Owen’s undisputed expertise and experience as a specialist in criminal and human rights law, he will undoubtedly add a significant dimension to the case."

The DOJ then appealed to the Court of Appeal, on three grounds: (focusing mainly on Owen KC does not have the expertise while local lawyers have substantial experience)

The Court of Appeal on 9 Nov rejected DOJ's appeal, saying "There is no valid basis to interfere with the exercise of the judge’s discretion" and "Public perception of fairness in the trial is of vital importance to the administration of justice".

Then DOJ asked the Court of Appeal to grant it a leave to appeal to the apex Court of Final Appeal, when exSJ Rimsky Yuen for the first time raised the point about "foreign forces" and "risks of leaking state secrets" brought by overseas counsels.

On 12 Nov, the Court of Appeal rejected DOJ's application for leave to appeal to CFA. In its ruling, CA has made it clear that the SJ has been changing his positions and there was no factual basis for the "state secret" concern.

Mind that according to article 41 and 47 of #NSL, a fully or partially closed-door trial can be arranged if state secrets are invovled, and if the court is not sure, a certificate from the chief executive would be needed. None of this was done for Lai's trial.

After CA rejected DOJ's appeal and application for leave, 2 things happened.

First, DOJ sent letter to brief-out counsels, "reminding" them to observe the #NSL requirement

https://twitter.com/XinqiSu/status/1594694428383379457?s=20&t=kp73_EQ9Vl3v4ROEZYh6cQ

Second, state-affiliated newspapers, pro-Beijing scholars, pro-Beijing politicians began to criticize the court's decision, demanding the court to "safeguard national security"

https://twitter.com/XinqiSu/status/1595571146661007361?s=20&t=kp73_EQ9Vl3v4ROEZYh6cQ

The arguments against admitting a foreign counsel can be summed up as
1. They don't know Chinese but NSL was written in Chinese
2. They don't understand Chinese nat sec and constitutional order
3. They may bring in foreign influence which is NSL trying to prevent

Two options suggested by the pro-Beijing politicians were :
1. Send Jimmy Lai to mainland for trial
2. Ask the NPCSC to interpret #NSL
Apparently 2nd was more in favour as HK's sole rep to NPCSC said this 2 days before CFA appeal com to make a decision:

https://twitter.com/XinqiSu/status/1596422663614115841?s=20&t=kp73_EQ9Vl3v4ROEZYh6cQ

On Monday, at 4pm, the Court of Final Appeal's appeal committee rejected DOJ's leave for appeal application on a basis similar to the Court of Appeal's.

At 6.45pm, John Lee announced his "proposal to the central people's government to request an interpretation by NPCSC"

One immediate question, which is yet to be answered meaningfully by anyone, is that: what are the lawful procedures to request an NPCSC interpretation of the #NSL？
Although #NSL65 provides that NPCSC has the power, there is no provision on how to make a request.

When the HK Chief Executive proposed to the Central People's Government to request an NPCSC interpretation, on what legal basis can the HKCE make this proposal? on what legal basis can CPG approve or disapprove? on what legal basis and who is actually going to make the request?

Asked about the procedures to seek an interpretation and whether CE's move was legally sound, HK Bar chairman Victor Dawes this morning said he was not particularly concerned about the procedure and the key is to handle the matter expeditiously.

By now, CE has submitted his proposal to Beijing, DOJ has asked the court to adjourn #JimmyLai's trial, and Sing Tao Daily said this: - while both CE and Bar chairman said citizens' right to legal representation is not affected.

https://twitter.com/XinqiSu/status/1597463458584629249?s=20&t=kp73_EQ9Vl3v4ROEZYh6cQ

In weeks if not days to come,
- NPCSC will decide on the overseas counsel question, and probably expand it to a "designated lawyer system" if Sing Tao is right
- a procedure to request interpretation of #NSL will be established where apparently the judiciary has no role to play

In short what happened: DOJ tried to block a foreign lawyers with changing grounds that they never prepared for and as they failed proBJ politicians made open warning about interpreting #NSL which indeed happened in a creative(?) manner and may bring larger than expected impacts.