Hong Kong Special Administrative Region Chief Executive John Lee Ka-chiu requested an interpretation of the National Security Law for Hong Kong (NSL) from the Standing Committee of the National People’s Congress (NPCSC) over a legal matter arising from whether Timothy Owen, a British barrister who is not qualified to practice law in Hong Kong, may act as counsel for Jimmy Lai Chee-ying in a case involving points of national security. The NPCSC after hearing a report from Xia Baolong, director of the Hong Kong and Macao Affairs Office of the State Council, promulgated an interpretation on Dec 30, 2022, over the matter.
This interpretation primarily explains the legislative intent of Articles 14 and 47 of the NSL. The interpretation does not add anything new to the relevant provisions. It merely clarifies the legislative intent of the provisions and the powers and responsibilities of the chief executive and the Committee for Safeguarding National Security of the HKSAR (CSNS). It does not expand or extend the powers of the chief executive or the CSNS.
Article 14(1) of the NSL sets out that the duties and functions of the CSNS include “advancing” the development of the legal system and the enforcement mechanism for safeguarding national security in Hong Kong. The provisions clearly specify the powers and responsibilities of the CSNS. Meanwhile, the word “advancing” indicates the need for the development of the legal system and the enforcement mechanism in the future. Where circumstances of necessity and urgency arise, the CSNS will be obliged to propose the amendment of laws and/or the legal system and enforcement mechanism to safeguard national security. The question whether a non-local lawyer not fully qualified to practice law in Hong Kong may represent a defendant in a highly sensitive national security case may fall into such circumstances.
Interpretation is not intervention
It should be noted that the NSL is a Chinese national law that directly applies to Hong Kong through Annex III of the Basic Law by direct promulgation. Direct application means that like other Chinese national laws, its final interpretation power is vested upon the NPCSC by virtue of Article 67(4) of the Constitution of the People’s Republic of China. This power of the NPCSC is explicitly reiterated in Article 65 of the NSL. In other words, the ascertaining of the original intent of its legislation must be determined by and subject to the interpretation of the NPCSC. The courts of Hong Kong may exercise jurisdiction over the NSL (Article 40), however, if the court’s understanding of the law differs or detracts from the original legislative intent, it will ultimately be a matter that requires the NPCSC to make a final interpretation.
In the past 25 years, whenever the NPCSC has interpreted the Basic Law, criticisms that Beijing was intervening in Hong Kong have arisen. Such criticisms, however, only show the lack of understanding of the constitutional order under the “one country, two systems” principle, under which the interpretation power of the NPCSC is an inherent part thereof.
The NPCSC has invoked its interpretation power on the Basic Law five times. … Each interpretation clarifies the true intent of the law, to protect Hong Kong’s prosperity and stability, major public interests, the relationship between the central government and Hong Kong, State power, State actions and national dignity. The NPCSC has been very restrained in exercising its interpretation power on the law. Each time, it has been a reaffirmation of the original legislative intent of the relevant provisions of the Basic Law.
Since Hong Kong’s return to the motherland, the NPCSC has invoked its interpretation power on the Basic Law five times — on right of abode in 1999; on political reform in 2004; on the remainder of the term of the chief executive in 2005; on the act of State in 2011; and on the oath taken by public servants in 2016. It is noteworthy that the NPCSC does not exercise its interpretation power without careful consideration. Each interpretation clarifies the true intent of the law, to protect Hong Kong’s prosperity and stability, major public interests, the relationship between the central government and Hong Kong, State power, State actions and national dignity. The NPCSC has been very restrained in exercising its interpretation power on the law. Each time, it has been a reaffirmation of the original legislative intent of the relevant provisions of the Basic Law. But people with ulterior political motives always turn a blind eye to the constitutional order of “one country, two systems” and slam Beijing for having interfered in Hong Kong matters whenever the NPCSC has exercised its inherent interpretation power.
Hong Kong is part of China. The NPCSC is only performing its duty by clarifying the legislative intent of the national laws — the Hong Kong Basic Law and now, the Hong Kong NSL. It is mindful that the NPCSC has the power to interpret all provisions of the Basic Law. But only under rare occasions as stated in Article 19(3) and Article 158(3) of the Basic Law may the NPCSC exercise its interpretation power. Most of the daily cases are adjudicated by the Hong Kong courts as stated in Article 19(1) of the Basic Law. The NPCSC interpretation is completely in line with the constitutional order that has not affected the judicial independence of Hong Kong.
In the present situation, the points covered in the interpretation have long been expressly provided for in Articles 14 and 47 of the NSL. Article 14 of the NSL not only mentions the duties of the CSNS, but also explicitly states that decisions of the CSNS concerning safeguarding national security are not subject to judicial review. Some have questioned whether this is an infringement on the power of the courts. However, those who are familiar with this area must note that in cases involving national security and State power, the examples of courts not exercising jurisdiction can be commonly seen in both common law and civil law jurisdictions. This is not unique to China or the HKSAR. China is a country with a civil law system where major principles of law are codified as written laws, whereas such principles are reflected through case law in common law jurisdictions.
Exemption of national security is not uncommon
In the most prominent common law country, the United Kingdom, take the 1985 landmark judicial review case: Council of Civil Service Unions & Others vs Minister for the Civil Service (known as GCHQ) as an example. The government intended to alter the terms and conditions of service for civil servants working at GCHQ. The House of Lords, while saying that the government did commit procedural wrong, held in favor of the UK government on merely one ground, that being national security, emphasizing that it was for the executive not the court to decide what amounts to national security.
The boundaries between the judiciary and the executive exist in both common law and civil law jurisdictions throughout the world. It is a worldwide practice that the courts do not exercise jurisdiction over acts of state. These limits are very restrictive and primarily grounded on national defense, foreign affairs and national security, which do not affect the independent jurisdiction of the courts in hearing other types of cases.
In the context of the constitutional order under “one country, two systems”, Hong Kong is governed by the Chinese Constitution and the Basic Law, which are of the nature of civil law, together with precedents of common law characteristics and other sources of law in Hong Kong (see Article 8 of the Basic Law). As mentioned earlier, the NSL is a national law enacted by China specifically for its HKSAR. It carries characteristics of both common law and civil law. Article 14, paragraph 3 of the NSL states that decisions made by the CSNS for national security shall not be amenable to judicial review. It is not to infringe on the power of the courts; rather it is to clearly lay down the legal principles which exist worldwide in written form. This reflects civil law characteristics. The way that this provision is drafted took account of Hong Kong’s situation when the NSL was formulated, while fully reflecting the characteristics of “one country, two systems”.
The second part of the interpretation is of Article 47 of the NSL, which states that the courts of Hong Kong shall obtain a certificate from the chief executive to certify whether an act involves national security or State secrets when such questions arise in the adjudication of a case. A similar mechanism is mentioned in Article 19(3) of the Basic Law, which provides that Hong Kong courts do not enjoy jurisdiction in relation to acts of State, such as defense and foreign affairs. The power to determine the facts relating to the acts of State is also vested in the chief executive after consulting the central government. Although the process by which civil law and common law courts arrive at the conclusion of noninterference with the conduct of State affairs may differ, the outcomes are always the same — the court has to respect the government’s act of State (see also The Congo Case, 2011). The court must give due regard to the principles of sovereignty and supremacy of the act of State which does not affect judicial independence at all.
In brief, the latest interpretation has been the sixth by the NPCSC since the handover, but the first interpretation of the NSL. The NSL is relatively new as it was adopted only 2.5 years ago. Clarification of the issue is timely, crucial and significant for the future practice of the executive, legislative and judicial branches on the NSL.
The author is a member of the Hong Kong Basic Law Committee of the Standing Committee of the National People’s Congress and a member of the Legislative Council of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.