Before the Standing Committee of the National People’s Congress commenced on Tuesday, Chief Executive John Lee Ka-chiu had already said that he would welcome and look forward to its decision to initiate deliberation on interpreting the Hong Kong Special Administrative Region’s National Security Law. Xia Baolong, director of the Hong Kong and Macao Affairs Office, gave an explanation to the National People’s Congress Standing Committee over the request for an interpretation of “relevant articles” of the law.
The request for the Standing Committee’s interpretation was submitted by Lee on Nov 28 after Hong Kong’s Court of Final Appeal sustained the High Court’s decision to uphold Jimmy Lai Chee-ying’s request to hire British barrister Timothy Owen in his pending national security trial. Lai is charged with colluding with foreign forces to endanger national security. The case was postponed as the High Court awaited Beijing’s interpretation of the NSL.
As anticipated, the Standing Committee’s interpretation is broad and goes beyond a single case, achieving the goal to “enrich and clarify the legislative intent” of the NSL. One of the key areas the Standing Committee deliberated on was to clarify the confidentiality rules for lawyers. Article 63, which discusses the confidentiality of law enforcement, judicial agencies and related staff involved in handling national security cases, was included in the interpretation.
Articles 12, 13 and 14 are the other provisions that were deliberated on in the meeting, which ended on Friday. Specifically, Article 12 states that the Committee for Safeguarding National Security assumes “primary responsibility for safeguarding national security in the region”; Article 13 lays out the structure and composition of the committee; and Article 14 highlights the duties and functions of the committee.
It is necessary for the Standing Committee to deliberate on interpreting the NSL to ensure national security is safeguarded
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It is necessary for the Standing Committee to deliberate on interpreting the NSL to ensure national security is safeguarded. Any potential loopholes must be corrected immediately so foreign forces cannot exploit them and threaten the national interests of the country or any of its regions.
Despite some anti-China politicians in the West calling the decision to request a law interpretation a political show targeting Lai, the key issue involved had always been a factual one — that although Article 63 of the NSL declares that any individual “who serves as defence counsel or legal representative shall keep confidential State secrets, trade secrets or personal information which he or she comes to know in the practice of law”, there is, however, currently no mechanism to effectively prevent foreign lawyers from breaching the confidentiality requirement. The potential vulnerability required immediate action to be taken by the Chinese legislative body.
In addition, the interpretation from China’s top legislative body should clarify doubts and misunderstandings, and provide a better basis for the courts to handle future NSL cases. The legislative intent of the NSL has been clarified following Beijing’s interpretation, and such a move is especially significant and meaningful with Articles 12, 13 and 14 being further substantiated, providing a robust and well-defined legal basis for the Committee for Safeguarding National Security in conducting its duty and exercising its power over matters relating to national security in Hong Kong.
Professor Lau Siu-kai, vice-president of the Chinese Association of Hong Kong and Macao Studies, believes the interpretation can “effectively plug loopholes” that mainland officials might have overlooked in drafting the law following the 2019 anti-government protests. Henry Tang Ying-yen, the former chief secretary for administration, further expressed his support by stating Hong Kong’s national security can be better protected while simultaneously elevating international confidence in the city’s judicial system. Hong Kong’s judicial independence will not be undermined.
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It is Hong Kong’s constitutional obligation to ensure national security is safeguarded and the nation’s interests protected from foreign forces, and the Standing Committee’s interpretation of the NSL is an appropriate and legal means of clearing any potential misunderstanding or confusion on the law, as well as facilitating the implementation of “one country, two systems”.
The author is a member of China Retold and the Central Committee of the New People’s Party.