Rule of law in Hong Kong strengthened by NPCSC interpretation

The 38th meeting of the 13th Standing Committee of the National People’s Congress ended last Friday. As anticipated, the NPCSC voted to approve the interpretation of Articles 14 and 47 of the National Security Law for Hong Kong. 

The request for the Standing Committee’s interpretation was submitted by Chief Executive John Lee Ka-chiu on Nov 28, after the Hong Kong Special Administrative Region’s Court of Final Appeal upheld the High Court’s decision to allow Jimmy Lai Chee-ying, founder of Apple Daily, to hire British barrister Timothy Owen as his legal representative in his pending national security trial. 

Ironically, Lai is charged with colluding with foreign forces to endanger national security. In its interpretation, the NPCSC concluded that the question of whether overseas lawyers lacking the full qualifications for practicing in Hong Kong can handle national security cases in the SAR falls under Article 47 of the NSL, and their participation in such cases would therefore require approval in the form of a certificate issued by the chief executive of Hong Kong. Article 47 stipulates that Hong Kong courts must 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 case. 

The certificate is binding on the courts and if the courts do not obtain the certificate from the chief executive, the Committee for Safeguarding National Security of the HKSAR shall perform its duties and take decisions on the relevant situation and questions, in accordance with Article 14 of the NSL, according to the NPCSC interpretation.

The NPCSC interpretation has been welcomed by the Hong Kong community at large as Jimmy Lai is the alleged mastermind behind the social unrest that plagued Hong Kong in 2019-20

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The NPCSC interpretation has been welcomed by the Hong Kong community at large as Jimmy Lai is the alleged mastermind behind the social unrest that plagued Hong Kong in 2019-20. Prior to Friday’s interpretation, the NPCSC had never interpreted the National Security Law and had only carried out interpretations of the Basic Law on five separate occasions. As a matter of fact, each interpretation has helped Hong Kong clarify the legislative intent behind the relevant provisions of the Basic Law and has helped settle disputes. The previous NPCSC interpretations have not only clarified the Basic Law provisions concerned, but have also created a far more stable legal environment for Hong Kong, which has enabled the city to refocus its energies on economic and social development.  

Even though the interpretation of Articles 14 and 47 has been largely welcomed by the Hong Kong community, Western media and politicians have still seized on the opportunity to demonize Hong Kong and have claimed that the interpretation was detrimental to the rule of law. This accusation, however, is completely unfounded because Article 67 of the NSL explicitly states that “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”. Since this interpretation was in accordance with the law’s provision, it has resulted in strengthening the rule of law in Hong Kong. In fact, Hong Kong’s judiciary said on Friday night that it respects the lawful exercise of power by the NPCSC to make legally binding interpretations of the legislation.

In the debate over whether an overseas lawyer should be admitted as a legal representative in a national security case, it is worth noting that many former British colonies, such as Australia, New Zealand, India, Malaysia, Singapore and South Africa, no longer allow defendants to be represented by foreign lawyers in their court cases. These jurisdictions are highly regarded for their judicial independence, so it would be unreasonable to suggest that Hong Kong should act any differently in that respect. More importantly, courts in the United Kingdom would never allow lawyers who are not qualified to practice in its jurisdictions to represent defendants in national security cases. So why should we allow a British barrister to represent a defendant in such cases here in Hong Kong? Isn’t this another demonstration of the double standards frequently adopted by the Western media and politicians when they attack the HKSAR government’s move to restrict the involvement of overseas counsels in national security cases here in Hong Kong?

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Furthermore, Jimmy Lai is being prosecuted on charges of “colluding with foreign countries or foreign forces to endanger national security”. Why should Hong Kong allow lawyers from other countries to participate in legal cases of such nature? Especially when the British barrister who Lai wants to engage lacks experience in handling cases under the continental law system and does not have a general license to practice law in Hong Kong. Not to mention his lack of understanding of China’s Constitution and the Chinese language. Why would it be appropriate to grant such a lawyer the right to practice in a national security related case such as Lai’s?

In conclusion, it would be absurd to allow overseas lawyers, who do not have the full qualifications to practice law in Hong Kong, to represent defendants in national security cases. The NPCSC and HKSAR government have taken necessary and immediate steps to effectively prevent such an absurdity from happening. The previous NPCSC interpretations have contributed to the improving the HKSAR’s legal environment for the sake of its stability and prosperity. This time around, the NPCSC’s interpretation of the NSL will not be any different.

The author is co-convener of China Retold, a Legislative Council member, and a member of the Central Committee of the New People’s Party.

The views do not necessarily reflect those of China Daily.