NPCSC interpretation best option for fixing national security gaps

The four attempts by the Department of Justice to block the admission of Tim Owen to represent Jimmy Lai Chee-ying in a national security case have raised a huge storm of controversy in Hong Kong. Subsequent responses by the Hong Kong Special Administrative Region government to these futile exercises have offered a tempting opportunity for some commentators to fish in troubled waters and make an unsubstantiated allegation that Chief Executive John Lee Ka-chiu’s decision to seek an interpretation of the National Security Law for Hong Kong by the Standing Committee of the National People’s Congress may risk turning Hong Kong into a xenophobic city. These criticisms have been played up out of proportion.

In its first attempt to block the ad hoc admission of Owen, the secretary of justice (SJ) and the Hong Kong Bar Association argued that the issues involved in the trial were not of unusual difficulty or complexity and Owen would not add a significant dimension to the trial. Chief Judge of the High Court Jeremy Poon Shiu-chor rejected their arguments. It was held by the Court of First Instance that it was clearly in the public interest to allow Owen to represent Lai. The common law system requires the judge to apply the guiding principles developed by the courts over the years, as summarized in Re Perry QC (2016) 2 HKLRD 647.

Similarly, the Court of Appeal and the Court of Final Appeal applied established legal principles in adjudicating the case. The judiciary has on a whole displayed admirably strong determination to uphold its independence by ruling against the government. We are confident that Hong Kong’s legal system will continue to be internationally respected for its commitment to the rule of law and judicial independence. Though the SJ’s application was dismissed by the CFA, one important point raised by the SJ has caused an outpouring of discussion in the legal community. The issue is whether ad hoc admission of overseas counsel should generally be refused save in exceptional circumstances.

In order to prevent hostile powers from turning Hong Kong into a Trojan horse to destabilize China, the NPCSC must perform its interpretative duty and close the loopholes in the NSL. The NSL has laid a good foundation for maintaining the security of “one country” under “one country, two systems” amid rising geopolitical rivalry in the region

It is a particular matter of concern that the judgment of the CFA has left open the overarching question of whether legal practitioners from abroad should in principle be excluded from national security cases (refer to Question 2 of the SJ’s Formulated Question annexed to the judgment of SJ vs Tim Owen (2022) HKCFAR 23). Focusing on the SJ’s failure to comply with the principles laid down in Flywin Co. Ltd vs Strong & Associates Ltd (2002) 5 HKCFAR 356, the CFA criticized the SJ for changing his case only at the stage of seeking leave to appeal to the final court and dismissed his application. The CFA did not give a definite answer to Question 2. 

Two issues arise for consideration, namely whether the NPCSC is in the best position to interpret the NSL by clarifying provisions which may allow overseas lawyers to access confidential information during the trial, and, if so, whether the benefits of an interpretation could outweigh the risk arising from criticism against any supplement-based interpretation. It is easy to deal with the first issue. As the chief executive has correctly pointed out, the request for interpretation of the NSL was needed as there was no effective means to ensure overseas lawyers would not have a conflict of interest because of their nationality and that they would not be controlled by foreign agencies.

In March, the resignations of Lord Robert Reed and Lord Patrick Hodge from the CFA raised questions as to whether their departure was related to political pressure from the British government. The UK Supreme Court’s move came in step with the British government’s unfriendly stance toward China. Former chief executive Leung Chun-ying condemned the withdrawal of top judges as an act of UK’s interference with the city’s judiciary by administrative means. Besides, it will create problems for the Bar Association or the Law Society to punish foreign lawyers if there is a breach of confidential rules. These worries have strengthened the “conflict of interest” argument put forward by John Lee.

Some uncertainty surrounds the issue of whether the admission of Owen in a national security case is incompatible with the overall objective and design of the NSL. Fully aware of the legislative intent and purpose of enacting the NSL, the NPCSC is in the best position to make clarification. As Senior Counsel Rimsky Yuen Kwok-keung has persuasively pointed out, the NSL was enacted as a result of a need to ban, inter alia, interference in the HKSAR’s affairs by foreign or external forces, and that admitting overseas counsel on an ad hoc basis in cases involving national security would generally tend to defeat that aim (refer to SJ’s Q1 annexed to the above CFA’s judgment).

In order to prevent hostile powers from turning Hong Kong into a Trojan horse to destabilize China, the NPCSC must perform its interpretative duty and close the loopholes in the NSL. The NSL has laid a good foundation for maintaining the security of “one country” under “one country, two systems” amid rising geopolitical rivalry in the region. The NPCSC is in the best position to close the loopholes which may pose a latent threat to national security because of its familiarity with China’s national security policies. After all, the law was enacted by the NPCSC.

In a seminar, Maria Tam Wai-chu has enlightened us by emphasizing that what is good for national security is not a legal issue, but a policy decision (Department of Justice, Back to Basics: Basic Law 30th Anniversary Legal Summit Proceedings (HK: DOJ, 2020), p.259). She further argued that, in accordance with the principle of judicial deference, judges should refrain themselves from making a ruling on issues which belong to the scope of the executive and legislative powers (ibid).

Equally of concern is that the judiciary made a rare move by commenting on the decision of John Lee to seek an interpretation. The judiciary said, “The judiciary respects the chief executive’s proposal to ask the NPC Standing Committee for an interpretation of relevant provisions of the National Security Law to clarify issues.” Victor Dawes, chairman of the Bar Association, noted that the NPCSC was entitled to interpret the legislation under Article 65 of the NSL. He dismissed suggestions that banning overseas barristers would undermine defendants’ rights and freedom in legal representation.

It bears emphasizing that the NSL lacks an express provision on the admission of foreign lawyers. Though there is a need for the NPCSC to interpret the NSL and close its loopholes, and though the NPCSC is in the best position to do such an exercise, the potential interpretation could trigger controversy because of the difficulty in distinguishing legislative interpretation from legislative amendment.  

According to Fu Hualing, dean of the Faculty of Law at the University of Hong Kong, China’s Constitution does not delineate the boundaries between supplementation and amendment on one hand and interpretation on the other, but it says clearly that interpretation, conceptually, is not supplementation. While they are conceptually distinct, it is a distinction without differences as a matter of legislative practice (Fu Hualing, “Guide to Legislative Interpretation in China” in HKU Legal Scholarship Blog). Irrespective of whether it is fair to examine the interpretation through the lens of common law lawyers, the NPCSC’s interpretation will inevitably attract harsh criticism from hostile forces.

Like a stone cast into a placid pool, the potential interpretation could spread circles of ripples in Hong Kong. But an interpretation is the only means to provide a necessary plug to close the loopholes in the NSL that may pose a latent threat to national security. Hostile forces will regard their criticism of the interpretation as a necessary exercise to discredit the legal system of Hong Kong. We are ready for the polemics.

Junius Ho is a Legislative Council member and a solicitor. 

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition.

The views do not necessarily reflect those of China Daily.