The Standing Committee of the National People’s Congress (NPCSC) delivered last week an interpretation of Articles 14 and 47 of the National Security Law for Hong Kong (NSL), a move which is necessary because only the NPCSC has the right to clarify any ambiguity over the legislative intent of the NSL so that the law can be enforced accurately and effectively.
Making the law clear and predictable should be the prime concern of the NPCSC. The law must be accessible and so far as possible intelligible, clear and predictable, as Lord Bingham has correctly pointed out (Tom Bingham, The Rule of Law (Penguin Books, 2010), p.37).
The NPCSC interpretation does not pose any threat to judicial independence and the rule of law partly because it laser-focused on the necessary reasonable gatekeeping roles of the chief executive and the Committee for Safeguarding National Security of the HKSAR (CSNS) in relation to ad hoc admission of overseas counsels in national security cases, and partly because the NPCSC exercised commendable restraint by not imposing a blanket ban on hiring overseas lawyers and by not imposing a one-size-fits-all confidentiality compliance regime for law enforcement personnel, judicial officers and related staff involved in handling national security cases.
Apart from upholding the HKSAR’s judicial independence, the interpretation has fostered in Hong Kong a firm belief that the central government is sincere in its promise to grant a high degree of autonomy to the HKSAR. In short, the interpretation is in line with the “one country, two systems” principle.
According to the NPCSC interpretation, the question of whether overseas lawyers can participate in national security cases falls under Article 47 of the NSL and requires the chief executive’s approval.
Before the interpretation of Article 47, Johannes Chan Man-mun, a law professor, argued that Article 47 has strengthened the executive branch’s power while restricting judicial discretion (Johannes Chan, “National Security and Judicial Independence”, in Fu Hualing and Michael Hor (editors), The National Security Law of Hong Kong: Restoration and Transformation (HKU Press, 2022), p.129-130). In response to the interpretation, Chan further argued that it has extended the power of the chief executive from certifying evidence to deciding on legal questions. But Chief Executive John Lee Ka-chiu emphasized that the interpretation has not increased the chief executive’s power because the power to certify designated issues came into existence upon the NSL’s promulgation.
Not only is the interpretation compliant with constitutional and statutory requirements, it is accommodative of the “one country, two systems” principle. The interpretation, which was made with great wisdom and legal profundity, demonstrates that the NPCSC respects the HKSAR’s high degree of autonomy
Unconvincing as Chan’s arguments may be, we still find it necessary to explain why Article 47 must be incorporated into the NSL. There is a strong case for equipping the chief executive with the power to certify whether an act involves national security concerns or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a national security case. Without granting additional power to the chief executive, the interpretation just makes it clear that the scope of “such questions” under Article 47 includes whether overseas lawyers can participate in national security trials. As Secretary for Justice Paul Lam Ting-kwok has correctly pointed out, under common law certain executive decisions are not justiciable by the courts because they are ill-equipped to review matters in relation to which they lack expertise such as assessment of national security.
If the courts have not obtained a certificate from the chief executive, the CSNS should decide on the matter in accordance with Article 14 of the NSL. The chief executive and the national security experts of the CSNS have the necessary expertise to identify and protect national interests, and are able to garner the right focus on national security issues, which are complicated issues under China’s context.
It’s feared that deliberations on these broad and complicated issues under the public gaze could negatively affect the trials of national security cases. National security issues are also removed from the daily life of judges and legal practitioners. Their lack of expertise makes them unable to adequately assess national security interests. In particular, some threats to national security are unusual and highly technical, thus nations of different political systems often free their executive authorities from many ordinary constraints.
Commenting on Article 47 of the NSL, Kent Roach, a law professor at the University of Toronto, admits that executive branches in liberal democracies have extensive first-mover powers to assert secrecy, but they are subject to judicial review (Kent Roach, “Echoes Enhanced to a Cacophony”, in Fu Hualing, ibid, p.330). Though Article 14 of the NSL provides that the decisions of the CSNS shall not be amenable to judicial review, the law draftsmen have strong reasons for granting these protections to the CSNS. The fear of attracting chaotic and emotional debates on sensitive national security issues may have been considered by the draftsmen. Besides, the certificate issued by the chief executive under Article 47 only addresses a certain question regarding the handling of a court case. According to Paul Lam, the court is still responsible for deciding on other issues and adjudicating the case.
The stipulation that the information relating to the work of the CSNS shall not be subject to disclosure has become a bone of contention since the promulgation of the NSL. Some hypocritical Western scholars like to examine the CSNS through the distorted lens of double standards. In the UK, the Closed Material Procedure (CMP) has become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation and in cases involving national security. For example, in immigration matters, the CMP permits the state to rely on evidence that will not be disclosed to the other party who may be subject to deportation. Is the CMP a departure from fundamental rule-of-law standards of equality of arms and open justice?
The Hong Kong judiciary said it respected the lawful exercise of power by the NPCSC to make legally binding interpretations regarding the city’s performance of its duties in safeguarding national security. Not only is the interpretation compliant with constitutional and statutory requirements, it is accommodative of the “one country, two systems” principle. The interpretation, which was made with great wisdom and legal profundity, demonstrates that the NPCSC respects the HKSAR’s high degree of autonomy. Incidentally, Hong Kong has yet to fulfill its constitutional duty of implementing national security through local legislation according to Article 23 of the Basic Law, the reason the NSL was promulgated. We should be grateful to the central authorities for still trusting us with safeguarding national security.
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.