On Nov 28, 2022, Hong Kong’s Court of Final Appeal (CFA) failed to respect the overriding status of the National Security Law (NSL) for Hong Kong and the vital importance of safeguarding national security by “mechanically” following the judicial procedures of the common law.
Accordingly, it rejected the Hong Kong Special Administrative Region (HKSAR) government’s objection and allowed Tim Owen, a lawyer from the United Kingdom who is not qualified to practice generally in Hong Kong, to serve as Jimmy Lai Chee-ying’s defense lawyer in his national security case, thereby creating possible national security threats. On Nov 28, 2022, the HKSAR government requested the Standing Committee of the National People’s Congress (NPCSC) to interpret the NSL to clarify the matter. The NPCSC accepted the request of the HKSAR government and interpreted Articles 14 and 47 of the NSL on Dec 30, 2022. This is the first time the NSL is interpreted by the NPCSC. The NPCSC points out in its interpretation that Article 14 of the NSL stipulates that the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (CSNS) has the statutory responsibility for safeguarding national security in the HKSAR and has the right to make judgments and decisions on whether a national security case involves national security issues, and that its decisions are not subject to judicial review and have enforceable legal force. The NPCSC also affirms that by Article 47 of the NSL, the courts of the HKSAR shall obtain a certificate from the chief executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a national security case. The certificate shall be binding on the courts. The NPCSC also decides whether an overseas lawyer who is not qualified to practice generally in Hong Kong can serve as a defender or litigant in crimes endangering national security is an issue covered by Article 47 of the NSL. A certificate issued by the chief executive shall be obtained for the matter. If the court fails to submit and obtain a certificate from the chief executive, the CSNS shall perform its statutory duties prescribed by Article 14 of the NSL and make the relevant decision on the matter. This means in effect that overseas lawyers who are not qualified to practice generally in Hong Kong will unlikely be allowed to participate in the trial of offenses involving the NSL.
Undoubtedly, the central government’s promulgation and implementation of the NSL and the initiation of a thorough reform of Hong Kong’s electoral system are also extremely significant examples of the central government exercising comprehensive jurisdiction over the SAR
The ruling by the CFA has drawn the deep concern of the central government about the will and ability of the HKSAR in safeguarding national security. Deng Zhonghua, president of the Chinese Association of Hong Kong and Macao Studies, said in his speech at the symposium on National Constitution Day on Dec 4, 2022 that even though since the implementation of the NSL, the HKSAR had achieved remarkable results in fulfilling its constitutional responsibility to safeguard national security, the situation, however, is still grim and complicated. Whether the NSL can be fully and accurately implemented in a series of major national security cases remains to be tested.
This first-time interpretation of the NSL by the NPCSC is of great significance in clarifying the legislative intent of the law and plugging the related legal loopholes so that the NSL can play a better role in maintaining national security in future. More importantly, the interpretation of the law by the NPCSC fully demonstrates the effective exercise of the central government's comprehensive jurisdiction over Hong Kong after the severe 2019-20 riots were quelled. The significance of this interpretation cannot only be understood from a narrow legal perspective but also a broader political perspective. From a political point of view, the interpretation of the law by the NPCSC demonstrates the central government’s strong will to safeguard national security, and it is also a sign that the central government has been actively exercising its comprehensive jurisdiction over the HKSAR since the fourth plenary session of the 19th Central Committee of the Communist Party of China in October 2019. It is thus an important example on the part of the central government to improve the institutions and mechanisms of “one country, two systems”, including the legal system and mechanisms for safeguarding national security.
The fourth plenary session of the 19th CPC Central Committee decided to “establish and improve the legal system and enforcement mechanisms for (Hong Kong) to safeguard national security and support (the city) in strengthening law enforcement”. It also vowed to resolutely guard against and contain external forces from interfering in (Hong Kong) affairs and engaging in separatist, infiltrative and sabotage activities. On Oct 16, 2022, General Secretary Xi Jinping mentioned in his report to the 20th National Congress of the CPC that it would “uphold and improve the institutional structure of ‘one country, two systems’”, “implement the central government’s comprehensive jurisdiction”, “implement the legal system and enforcement mechanisms of (Hong Kong) on safeguarding national security”, “improve the judicial institutions and legal system of (Hong Kong)”, “resolutely crack down on the anti-China and seditious forces in Hong Kong”, “resolutely prevent and curb the external force from interfering in Hong Kong affairs”, and “successfully implement the important principle of ‘one country, two systems’”. These principles are central to understanding the NPCSC’s interpretation of the NSL.
In fact, in 2019, even before the promulgation of the NSL, Zhang Xiaoming, then director of the Hong Kong and Macao Affairs Office of the State Council, made it clear that to quell the riots in Hong Kong and ensure the steady and long-term implementation of “one country, two systems”, the central government will exercise decisively the various legal powers bestowed by the nation’s Constitution and the Basic Law, including the better implementation of the central government’s comprehensive jurisdiction over Hong Kong. He pointedly mentioned that “the exercise of the power to interpret the Basic Law should not depend on the likes and dislikes of some people but should be decided according to actual needs, and the interpretation should be done whenever necessary”. The central government will also strive to improve the institutions and mechanisms related to the implementation of the Constitution and the Basic Law in the HKSAR. “As the practice of ‘one country, two systems’ continues to deepen, both the central government and (Hong Kong) are responsible for further improving the relevant institutions and mechanisms based on comprehensively reviewing the implementation of the Constitution and the Basic Law. The laws that should be abolished must be abolished, those that should be amended must be amended, those that should be supplemented must be supplemented, and the matching mechanisms that should be devised must be devised.”
In November 2022, in explicating the report of the 20th National Congress of the CPC, Xia Baolong, director of the Hong Kong and Macao Affairs Office of the State Council, asserted that “the reason why Hong Kong has turned from chaos to order and returned to the right track is the central government making good use of its comprehensive jurisdiction over Hong Kong. It has grasped firmly the major issues concerning the long-term stability of (Hong Kong), resolutely managed what should be managed, resolutely corrected what should be corrected, and resolutely established the rules that should be established to ensure that the practice of ‘one country, two systems’ will always move in the right direction. ” Xia also pointed out that since the return of Hong Kong to the motherland, the central government has continuously improved the institutions and mechanisms related to the implementation of the Constitution and the Basic Law. “The enactment and implementation of the NSL…is an important measure taken by the central government to uphold the rule of law in Hong Kong and protect the basic rights of Hong Kong residents.”
To ensure that the NSL can effectively play a role in safeguarding national security, it imposes strict requirements on the qualifications of the personnel for different agencies involved in the implementation of the law, and the relevant selection procedures have been set up for this purpose. Article 16 of the NSL stipulates that the head of the National Security Department of the Hong Kong Police Force shall be appointed by the chief executive. Article 18 stipulates that the Department of Justice of the HKSAR shall establish a specialized prosecution division responsible for the prosecution of offenses endangering national security and other related legal work. The prosecutors of this division shall be appointed by the secretary for justice after obtaining the consent of the CSNS. Article 44 stipulates that the chief executive has the right to designate several judges at all levels to handle cases concerning offenses endangering national security. Before appointing judges, the chief executive may consult the CSNS and the chief justice of the CFA. It can be seen therefore that the police officers, prosecutors and judges involved in the implementation of the NSL are all selected through special procedures to ensure that they will faithfully implement the NSL. Interestingly, the NSL has said nothing about whether overseas lawyers who do not have full qualifications to practice in Hong Kong should be allowed to participate in national security trials. This is a “loophole” that Jimmy Lai and the external forces have exploited. The interpretation of the NSL by the NPCSC is just in time to plug this “loophole”.
Since the 18th National Congress of the CPC, there have been many instances in which the central government exercised its comprehensive jurisdiction to improve Hong Kong’s institutions and mechanisms for implementing “one country, two systems”. In 2019, Zhang Xiaoming, then director of the Hong Kong and Macao Affairs Office of the State Council, enumerated several such significant instances, including the 2014 decision of the NPCSC on the universal suffrage arrangements for the chief executive, and the 2016 NPCSC interpretation of Article 104 of the Basic Law to clarify the relevant requirements for public officials in oath-taking. In February 2019, the central government issued an official letter to the chief executive asking it to prohibit the operation of the “Hong Kong National Party”, which advocated “Hong Kong independence”. The positions and opinions expressed by the central government in the official letter have further established the system and mechanism for the central government to issue directives on major issues involving the relationship between the central government and the HKSAR. Undoubtedly, the central government’s promulgation and implementation of the NSL and the initiation of a thorough reform of Hong Kong’s electoral system are also extremely significant examples of the central government exercising comprehensive jurisdiction over Hong Kong.
From a political point of view, the interpretation of the NSL by the NPCSC fully demonstrates that the central government is determined and will continue to improve the institutions and mechanisms of “one country, two systems” through institutional building and reform, including those in the legal system and the judiciary, to ensure the long-term success of “one country, two systems” and Hong Kong’s long-term prosperity and stability.
The author is a professor emeritus of sociology, the Chinese University of Hong Kong, and a consultant to the Chinese Association of Hong Kong and Macao Studies.
The views do not necessarily reflect those of China Daily.