In the colonial days when the Hong Kong Supreme Court, the highest local judicial authority, gave its decisions on appeal cases, they were subject to final appeal to London’s Privy Council. There were numerous instances of the Privy Council overturning decisions of the Supreme Court, which was tantamount to a slap in the face of the chief justice.
Yet no protests were ever heard from local legal circles or the international media over such obvious interference in Hong Kong’s judicial independence. After Hong Kong’s return to China, and although it was clearly stated in the Basic Law that the final interpretation of the Basic Law rests with the Standing Committee of the National People’s Congress (NPCSC), it often attracted unwarranted criticism from the international media whenever the NPCSC was asked to interpret the Basic Law over a dispute. In fact, there have only been five such interpretations in the 25 years since the handover and all of those cases were justified by subsequent events as being in the best interests of the society. Yet we continue to see the foreign media’s irrational criticisms of all NPCSC interpretations, including its interpretation of the National Security Law for Hong Kong this time.
The avalanche of foreign media criticism was as expected to the NPCSC’s latest interpretation in response to a request from the chief executive over the Court of Final Appeal (CFA)’s decision to allow an overseas lawyer recruited from Britain to defend Jimmy Lai Chee-ying, the founder of the now-defunct Apple Daily, against charges under the NSL, including two counts of conspiracy to collude with foreign forces. It’s not difficult to see how the local court’s decision violates commonsense, and the chief executive was right to promptly refer the case to the NPCSC to seek an interpretation on whether such practice is contrary to the intention and spirit of the NSL. The Western media wasted no time castigating the HKSAR government and the NPCSC for “interfering” with the independence of Hong Kong’s judiciary.
If the NPCSC had followed the time-honored colonial practice of the Privy Council, it could simply overturn the CFA decision, which would no doubt attract immediate condemnation by the Western media and the anti-China forces as interfering in the independence of the Hong Kong Judiciary and as a death-knell for the “one country, two systems” policy. But Chinese wisdom transcends that!
Instead, the final official interpretation, in layman’s terms, only pointed out that this issue is something that can be resolved locally within the Hong Kong Special Administrative Region through the provisions already contained in the NSL, and assisted the HKSAR by providing a fuller explanation of the legislative intent of Article 14 and Article 47 of the NSL, clarifying the role of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (CSNS) and the chief executive and providing a firm legal basis for handling similar situations in regard to safeguarding national security in Hong Kong. It should be pointed out that the interpretation of the two articles does not create extra power for the chief executive or the CSNS.
The chief executive responded promptly by saying that the CSNS would decide whether overseas lawyers who are not fully qualified to practice in the HKSAR can handle national security cases and what policies should be adopted to resolve the issue. The government will consider amending the Legal Practitioners Ordinance to facilitate the NSL’s implementation. It should be pointed out that any proposed amendment of the legislation would have to be approved by the Legislative Council. The HKSAR government is clearly determined to resolve this issue in strict adherence to existing legislation and the rule of law.
I think there are six important lines to take that should be spelt out in this NPCSC interpretation in response to any foreign criticism, such as one clearly biased article published in The Times on Jan 2, headlined Hong Kong to Decide Who Will Defend Media Tycoon Jimmy Lai, and a similar article in the Washington Post.
With a clearer definition of the roles and responsibilities of the CSNS, it should now take the lead to push for a review of the Hong Kong Judiciary, so as to honor General Secretary Xi Jinping’s report to the 20th National Congress of the CPC that “the judicial institutions and legal system of the HKSAR should be improved” and to ensure that legislation according to Article 23 of the Basic Law be implemented as soon as possible.
First, the NPCSC interpretation falls within the framework of the rule of law. Article 65 of the NSL states specifically that the power of interpretation of the NSL shall be vested with the NPCSC. Indeed, Chinese wisdom foresees problems arising in the legislative interpretation because of the simultaneous operation of two different legal systems as the NSL was drafted under China’s continental legal system while the implementation of the NSL in Hong Kong will be guided by the common law system. It should also be pointed out that both Chief Justice Andrew Li Kwok-nang in 1999 and Chief Justice Geoffrey Ma Tao-li in 2016 affirmed the legitimacy of the NPCSC’s interpretation of the Basic Law and its binding effect on Hong Kong courts.
Second, reinforcing the NSL and plugging the loopholes in response to changing circumstances is necessary as shown in clamping down on the violent insurrection in 2019. In fact, the NSL is no more draconian than comparable national security laws of leading Western democracies, including the United States and the United Kingdom. The decision to block a foreign lawyer’s involvement in a national security trial is both logical and of paramount importance to protect China’s national security against foreign machinations. Any foreign criticism should be countered by asking whether the US would allow any foreign lawyer to defend Julian Assange in the event that he is tried in the US for national security offenses.
Third, the NPCSC’s prompt response in addressing this issue at its first available meeting since the controversy broke indicates the central government’s priority in supporting the HKSAR government and its genuine concern over the stability and prosperity of Hong Kong.
Fourth, the NPCSC decision to leave the matter in the hands of the HKSAR government to resolve the issue demonstrates its respect for the “one country, two systems” principle and reinforces the HKSAR’s high degree of autonomy.
Fifth, the NPCSC interpretation does not jeopardize Hong Kong’s judicial independence nor affect Hong Kong’s rule of law. It did not refer to any individual case nor did it criticize the CFA’s decision, even though the latter was manifestly wrong, as the CFA failed to respect the overriding status of the NSL and the overriding importance of safeguarding national security by robotically following the judicial procedures of the common law. Indeed, internal sources confirmed that throughout the discussion of the NPCSC, there was no criticism of the Hong Kong judiciary. This interpretation is quite different to the previous five in that the NPCSC made no specific decision on the issue presented but delegated the matter to the HKSAR to handle on its own. Not surprisingly, the judiciary promptly issued a statement welcoming the NPCSC’s interpretation, stating that the judiciary respects the lawful exercise of power by the NPCSC to make a legally binding interpretation of Articles 14 and 47 of the NSL, and the judiciary will, as required by Article 3 of the NSL, continue to effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with the law, and will, in the exercise of its independent judicial power under the Basic Law, impartially perform its judicial functions and handle cases involving national security accordingly.
Sixth, the NPCSC interpretation provides an effective mechanism for the CSNS to resolve similar problems in the future, reducing the need for NPCSC interpretation. The role of the CSNS conforms with standard international practice, as it is no different from many similar government agencies in the West, such as the National Security Council in the US, to act as the supreme body in safeguarding national security.
It is also important to point out two things. First, overseas lawyers, including Jimmy Lai’s appointed King’s Counsel, may continue to be employed in Hong Kong on cases unrelated to national security; and second, the interpretation does not affect Lai’s right to a fair trial. He has ample choices within the local legal fraternity to represent him in his trial, including over 1,500 local barristers, among them more than 100 senior counsels.
Finally, with a clearer definition of the roles and responsibilities of the CSNS, it should now take the lead to push for a review of the Hong Kong judiciary, so as to honor General Secretary Xi Jinping’s report to the 20th National Congress of the CPC that “we will … support the chief executives and governments of the two (special administrative) regions in … improving their judicial and legal systems” and to ensure that legislation according to Article 23 of the Basic Law be implemented as soon as possible.
The interpretation vividly demonstrates the Chinese wisdom and prudence of the NPCSC in exercising its powers to interpret laws, as well as its emphasis in upholding the core value of the rule of law in Hong Kong at the constitutional level and its high degree of autonomy.
The author is an adjunct professor of HKU Space and Council member of the Chinese Association of Hong Kong and Macao Studies. He retired as deputy commissioner of ICAC.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS