Threat to Hong Kongers’ Right to Legal Counsel: Troubling Cases Highlight Erosion of Constitutional Safeguards

HONG KONG (AP) — Recent developments in Hong Kong suggest that the right to access legal counsel is being eroded in the national security sector of the police force. The erosion of this important right, guaranteed by the Bill of Rights Ordinance and the Basic Law, is a cause for concern.

According to Article 11 (2) (b) of the Bill of Rights Ordinance, individuals charged with a criminal offense have the right to adequate time and facilities for their defense and to communicate with their chosen counsel. Similarly, Article 35 of the Basic Law states that Hong Kong residents have the right to confidential legal advice, access to the courts, choice of lawyers, and judicial remedies.

The national security law also explicitly protects the rights of criminal suspects, defendants, and other parties in judicial proceedings to defend themselves and exercise their rights under the law. However, there is no indication in Article 43 of the national security law, which deals with police powers, that any new rights are being conferred to deprive defendants of their right to counsel.

Two prominent cases have raised concerns about the erosion of the right to legal counsel. Agnes Chow, a former political figure, made a deal with the national security police, signing a letter of regret and contrition in exchange for the return of her passport and enrollment in a degree course in Canada. It is troubling that Chow had no access to a lawyer throughout the negotiation and implementation of the arrangement.

Similarly, Tony Chung, who had served time for a national security offense, was under the supervision of both the Correctional Services Department and the national security police. Chung fled to the UK and intended to seek political asylum. He revealed that he had no access to a lawyer during periodic interviews with the national security police.

These cases highlight the absence of legal advice during interactions with the police, including the signing of potentially incriminating documents. It is important to ensure that individuals involved in legal proceedings have the right to legal representation as guaranteed by the law.

It is crucial to uphold the law and respect individuals’ rights to legal counsel, even in the context of national security. Restrictions on access to legal advice should be exceptional, temporary, based on an individual assessment, and regulated by domestic law. The government’s official advice acknowledges the right to free legal advice and emphasizes that individuals must be informed of this right upon arrest and before being questioned at a police station.

In conclusion, the erosion of the right to legal counsel in Hong Kong is a concerning development. Upholding individuals’ rights to legal representation is essential for ensuring a fair and just legal system. It is important to address these concerns and ensure that the right to legal counsel is respected and protected in all circumstances.