On Nov 28, 2022, under instruction from the Central People’s Government, Chief Executive John Lee Ka-chiu submitted a report on the implementation of the National Security Law for Hong Kong, and recommended that a request be put to the National People’s Congress Standing Committee (NPCSC) for an interpretation of relevant provisions of the National Security Law.
The request arose over the question of whether Timothy Owen, a senior British barrister, should be admitted on an ad hoc basis to represent media tycoon Jimmy Lai Chee-ying in his trial, which was originally scheduled for December but has been postponed to September 2023. Lai faces serious criminal charges, including conspiracy to publish and distribute seditious materials under the Crimes Ordinance and conspiracy to commit collusion with a foreign country or external elements to endanger national security under the National Security Law.
The secretary for justice had objected to the ad hoc admission of Timothy Owen as Lai’s defense lawyer in the trial. Under the Legal Practitioners Ordinance, permission can be given by the High Court for non-locally qualified lawyers to appear as barristers of the High Court under stringent criteria. Permission was given by the courts on the ground that the trial involves “legal issues of great urgent public importance”. The secretary for justice’s appeal to the Court of Final Appeal (CFA) failed, mainly because new arguments relating to national security were presented too late — they had never been mentioned in lower courts. Adjudication of such additional national security arguments militates against the CFA’s primary role as a court to review arguments presented to lower courts.
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The prospect of Timothy Owen, a foreign lawyer with no knowledge of Chinese, no understanding of the National Security Law and no commitment to safeguarding China’s national security, raised considerable apprehension among national security experts, including the chief executive, who chairs the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (CSNS).
The NPCSC has not conferred additional powers on the chief executive or the CSNS, but provides a clear mechanism for the executive branch of the HKSAR government to deal with the question of admission of non-locally-qualified overseas lawyers to the courts in cases involving national security
On the other hand, some prominent lawyers were worried that an interpretation by the NPCSC to overturn the CFA’s decision on the admission of Owen would amount to direct interference in the judicial process and deal a body blow to judicial independence.
The authorities in Beijing and HKSAR are clearly aware of the concerns on both sides of the debate. Lai’s trial was postponed to allow the NPCSC more time to deliberate on the legal questions before it. A month later, the NPCSC adopted an extremely reasonable, fully justifiable and circumspect interpretation to resolve the legal issues that had arisen.
On Dec 30, the NPCSC delivered its decision by issuing authoritative interpretations of Articles 14 and 47 of the National Security Law. It affirmed the duty of the CSNS to form judgments and make decisions on matters relating to national security under Article 14 of the National Security Law. As provided under this Article, the work of the CSNS cannot be interfered in by any institutions, organizations or individuals in the HKSAR. Its decision cannot be judicially reviewed.
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As for Article 47, the NPCSC confirmed that in adjudicating on cases involving offenses relating to national security, the Hong Kong courts will need to obtain a certificate issued by the chief executive stating whether any act impinges on national security or whether any evidence adduced involves State secrets. Such a certificate is binding on the courts.
The interpretation states that the admission of non-locally-qualified overseas lawyers to the courts in cases involving national security offenses could trigger risks to national security. In accordance with Article 47 of the National Security Law, such lawyers need to obtain a certificate issued by the chief executive before approval can be given by the courts. If the courts have not obtained the chief executive’s certificate, the CSNS will form a judgment and make a decision in accordance with its powers conferred by Article 14.
The full implications of the interpretation are not easy for laypeople to comprehend. But it is important to note that the NPCSC was acting entirely within its legal remit. Article 67(4) of China’s Constitution confers the power to interpret the law on the NPCSC, and Article 65 of the National Security Law states clearly that “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”.
The NPCSC has not conferred additional powers on the chief executive or the CSNS, but provides a clear mechanism for the executive branch of the HKSAR government to deal with the question of admission of non-locally-qualified overseas lawyers to the courts in cases involving national security.
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Nor has the NPCSC interfered in the judgment of Hong Kong courts on the admission of non-locally qualified overseas lawyers. The interpretation deals with matters of principle relating to the implementation of the National Security Law in the HKSAR and the city’s long-term security.
As the chief executive pointed out, threats to national security could take many subtle and insidious forms. The executive branch, as well as the CSNS, must be on high alert as to whether any act or evidence in national security cases could compromise national security. The clarification of the power of the chief executive to issue certificates and that of the CSNS to make the necessary decisions will strengthen the implementation of the National Security Law in Hong Kong.
To complete the implementation mechanism, the HKSAR government will need to introduce amendments to the Legal Practitioners Ordinance to ensure that the relevant provisions on the admission of overseas lawyers are aligned with the NPCSC’s interpretation. The chief executive has pledged to do so, and we can expect to see swift legislative action in the next few months.
The author is convener of the Executive Council and a legislator.
The views do not necessarily reflect those of China Daily.