Hong Kong, China - The government has made an exceptional court application - a move more often associated with anti-terrorism procedures - in an attempt to maintain confidentiality over documents which shed light on an immigration watch list.
Chief Secretary Rafael Hui has already signed public interest immunity certificates, personally certifying that the documents will expose the inner workings of the immigration system and allow hostile persons to undermine the peace and stability of Hong Kong.
Government senior counsel Daniel Fung said Monday that if judicial review applicants were to insist on the disclosure of two specific immigration documents, the court should resort to a secret hearing; a "special advocate" procedure which excludes the applicants and their lawyers and employs an independent lawyer to advocate on their behalf.
The application was made in opposition to a judicial review made by Taiwanese Falun Gong practitioners who claim they were denied entry into Hong Kong because of religious discrimination.
The "special advocate" procedure is often at the center of the national security-versus-civil liberties debate, and is an exceptional court hearing where litigants and their lawyers are denied access to materials relevant to their own cases.
The applicants in this case - Theresa Chu, Liao Hsiao-lan, Lu Lih-ching and Chang Jenn-Yeu - were among 83 practitioners arriving in Hong Kong for an international Falun Gong conference in February 2003 who were detained and then sent back to Taiwan.
None of the applicants has a criminal record, all have college education or higher, are in professional jobs and have previously been allowed into Hong Kong when on business trips.
A substantive hearing scheduled for September 12 last year was turned into a preliminary hearing in the light of affirmations filed by government officials stating that they were denied entry because they were on a watch list.
In a judgment last November, Justice Michael Hartmann ordered the government to list what documents were at the disposal of the immigration officers who made the decisions, in relation to the applicants and the watch list.
"It is understandable, of course, that the applicants should be anxious to know why exactly they were refused permission to enter Hong Kong and the core basis upon which those decisions were made," Hartmann ruled.
Monday's hearing was rescheduled for the beginning of the substantive hearing for the judicial review, but has again been turned into another preliminary hearing in light of the government's commitment to the nondisclosure of sensitive documents.
In January, the chief secretary personally looked over the relevant documents and decided that it would not be in the public interest to disclose standing orders, the airport operations manual for immigration officers, and two individual documents relating to the applicants and the watch list.
"If these materials fall into the hands of persons hostile to the security system of Hong Kong or persons who pose risks to public order or public safety of Hong Kong - then putting this information in their hands would reveal the inner workings of the system and place them in a better position to circumvent immigration control - therefore pose risk to the peace and stability of Hong Kong," Fung said.
In short, the documents would reveal, "the guts of the system," he said.
Fung asked Hartmann to defer to the opinion of the chief secretary, since what is effectively a national security issue should be left to the government.
Even if the court was minded to conduct another hearing - a balancing exercise between the rights of the applicants and public interest - the applicants must first demonstrate the material relevance of the documents to their case and that the opinion of the chief secretary was unreasonable.
But, "they haven't even overcome [that] first hurdle," submitted Fung, since they are merely speculating over what may be revealed by the documents.
Furthermore, the applicants are not challenging the immigration department for failing to comply with standing orders, Fung submitted.
In the context of the SAR, the issues involved are nevertheless "national security" issues which should not be subject to the judicial process.
Should Hartmann decide that a balancing exercise was necessary, then he should order a "special advocate" procedure, Fung said.
Hartmann noted that this procedure must only arise out of exceptional circumstances: "For example, you have the state saying a particular person may imperil civil society - a terrorist, in other words - there's no point telling him what the evidence is against him as that in itself will enable him to circumvent the security system."
Its intended use in the UK Prevention of Terrorism Bill was condemned by the House of Lords and the House of Commons Joint Committee on Human Rights last February.
Counsel for the applicants, Paul Harris, said they were originally considering adhering to a "special advocate" procedure as long as Bar Association chairman Philip Dykes SC was appointed to argue their case.
The government has rejected him as a possible advocate and said the appropriate counsel will be appointed by the secretary for justice.
Fung said that this application was not a deliberate "stonewalling" of information since the "bulk" of the documents ordered for disclosure have now been disclosed. Guidance to immigration officers on how to handle Falun Gong practitioners has not been disclosed because such guidance does not exist.
Harris will respond with his submission today.