Ju Liu on The Ouster Clause and the Amendment to the Legal Practitioners Ordinance: an Analysis (HKLJ)

"The Ouster Clause and the Amendment to the Legal Practitioners Ordinance: an Analysis"
Ju Liu (PhD candidate)
Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.451 - 467

Abstract: In late 2022, Beijing issued its first interpretation of the National Security Law of Hong Kong, concluding that the admission of overseas counsel to appear in national security-related cases would involve national security and thus a certificate issued by the Chief Executive would be required. In May 2023, the Legal Practitioners (Amendment) Ordinance 2023 passed all the legislative proceedings and was gazetted on 12 May. In accordance with Beijing’s interpretation, the Ordinance introduces a parallel criterion for admitting overseas counsel in national security cases. This article looks into s 27F of the amended Ordinance, an ouster clause excluding any judicial challenge against a Decision made by the Chief Executive concerning the admission of overseas counsel. First, this article identifies three types of ouster clauses operating in Hong Kong. It then contends that, even though art 47 of the National Security Law is intertwined with s 27F of the amended Ordinance, the former does not necessarily supply the latter with full precluding force, and the latter gains its ousting force independently. Finally, this article argues, by reference to the English legal jurisprudence, that the Hong Kong courts might still be able to judicially review the Chief Executive’s Decision, but the scope would be rather limited and of low intensity.