In response to a report submitted by the chief executive of the Hong Kong Special Administrative Region government to the State Council, the Standing Committee of the National People's Congress (NPCSC) delivered its interpretation of Article 14 and Article 47 of the National Security Law (NSL) for Hong Kong on Dec 30, 2022.
The significance of the interpretation is multifold. First, it clarifies the statutory responsibilities, scope of powers of the Committee for Safeguarding National Security of the HKSAR (the National Security Committee), as well as the legal effect of the decisions by the National Security Committee, i.e., the decisions made by the Committee shall not be amenable to judicial review, and shall have enforceable legal force. Second, it outlines the relationships between the administrative, legislative, judicial organs of the HKSAR and the National Security Committee. Third, the interpretation sets a precedent for the NPCSC to interpret national laws listed in Annex III of the Basic Law that are applied in the HKSAR, setting up the proper procedure for the HKSAR government to initiate the interpretation process. Hence the event establishes a working mechanism for the HKSAR government to deal with similar issues in future.
A legitimate request by the chief executive
The case that triggered the chief executive’s report requesting for an NPCSC interpretation has its particularities. Jimmy Lai Chee-ying, founder of Apple Daily, is suspected of committing the crime of colluding with foreign countries or foreign forces to endanger national security. Lai's proposal to hire a foreign barrister who is not practicing in Hong Kong to defend him has triggered great controversy; in particular, it seems to contradict with Article 63 of the NSL, which stipulates that a lawyer who serves as defence counsel or legal representative shall keep confidential of State secrets, trade secrets or personal information which he or she comes to know in the process of handling national security cases because there is no mechanism to ensure overseas legal practitioners’ compliance. Unsure of how the law shall be applied to the case, the chief executive submitted a report to the central government to seek an interpretation by the NPCSC. In doing so, the chief executive was fulfilling his duties under the NSL. Under Article 11 of the NSL, the chief executive is accountable to the central government for affairs relating to safeguarding national security in the HKSAR.
Upon receiving the report submitted by the chief executive, the State Council proposed to the NPCSC for the requested interpretation, which was endorsed by the NPCSC. By delivering its interpretation, the NPCSC reaffirmed that the chief executive and the HKSAR government have the right to request for an NPCSC interpretation when they deem it necessary to better fulfill their constitutional responsibilities.
NPCSC’s power to interpret national laws applied in HK
Since the establishment of the HKSAR, there had been no legislative interpretation by the NPCSC on any national law applied in Hong Kong other than the Basic Law, before this interpretation. The NSL is a national law enacted by the NPCSC on June 30 2020. It was then included in Annex III of the Basic Law and promulgated in Hong Kong. This is the first time that the NPCSC has interpreted provisions in a national law listed in Annex III of the Basic Law. It reaffirms that the power of interpretation of the Annex III laws, like the power to interpret the Basic Law, belongs to the NPCSC.
The interpretation highlights the constitutionality and overriding nature of the Basic Law and the Annex III national laws in the legal system of the HKSAR. It also provides a path for solution in future when the HKSAR government encounters major issues or situations in implementing the NSL or other Annex III national laws, viz., to make a request via the central government to the NPCSC.
An interpretation not an expansion
A salient feature of the interpretation is that the NPCSC did not directly answer the question the chief executive asked, instead, it pointed out that the answer can be found in the NSL. According to the interpretation, the question of whether foreign lawyers without local qualifications in the HKSAR can serve as a defence counsel or legal representative in court cases concerning offenses endangering national security falls under Article 47 of the NSL; and the decision shall be made by the chief executive.
The interpretation vividly demonstrates the prudence and caution of the NPCSC in exercising its powers to interpret laws. The NPSCS does not go for an arbitrary expansion to clarity the issue, but choose to give full respect to the legislative intent underlying the relevant provisions. In delivering its interpretation, the NPCSC is not writing a new article into the law, but rather clarifying the meaning of the existing articles. The interpretation suggests the NPCSC is consolidating and upholding the core value of the rule of law in Hong Kong at the constitutional level.
A new era of order and governance under rule of law
The NPCSC’s interpretation of the NSL represents a milestone in the HKSAR’s constitutional development journey. It reaffirms the NPCSC’s power of interpretation on national laws enforced in the HKSAR as well as the legitimacy of the chief executive and the HASAR government’ request for an NPCSC interpretation in case of necessity. It is a good demonstration of how the legal system of the country and the legal system of the HKSAR are organically connected under the framework of “one country, two systems”. It heralds a time of order, governance, prosperity and rule of law for Hong Kong.
The author is a Legislative Council member and a Hong Kong deputy to the National People’s Congress.
The views do not necessarily reflect those of China Daily.