An Analysis of NPC Standing Committee’s Interpretation of the National Security Law in Hong Kong
On December 30, the Standing Committee of the National People’s Congress (SCNPC) interpreted Article 14 and Article 47 of the National Security Law of the People’s Republic of China (PRC) in Hong Kong, showing a minimalist approach to focusing on the procedural aspects of whether a foreign lawyer without local qualifications can handle a national security-related case in the territory.
The interpretation was adopted at the 38th session of the 13th NPC meeting after a proposal had been made by the State Council in response to a report submitted by the Hong Kong Chief Executive to the central government. On December 28, Xia Baolong, the director of the Hong Kong and Macau Affairs Office, introduced the Hong Kong government’s request for an interpretation of the national security law during the first day of the NPC meeting. Then on the same night, Chief Executive John Lee expressed his gratitude to the central government for accepting his government’s request for the interpretation.
The interpretation carries three major points. First, Article 14 of the Hong Kong National Security Law empowers the Committee for Safeguarding National Security (CSNS) of the Hong Kong Special Administrative Region (HKSAR) to have statutory duties to protect national security and to decide that the information and work related to national security should not be disclosed. Furthermore, the CSNS decision is not subject to judicial review and its decision can be enforced with legal authority. Finally, no administrative, legislative or judicial body or individual can intervene in the work of the CSNS, whose decisions must be respected and enforced.
As such, the first point of the SCNPC interpretation empowers and legitimizes the role of the CSNC in making judgement and decisions with regard to national security-related questions.
Second, according to Article 47 of the National Security Law, the courts of Hong Kong, when encountering questions in the adjudication of cases related to offenses that endanger national security, shall request and obtain a certificate from the Chief Executive to clarify questions on whether an act involves national security or whether the related evidence may involve state secrets. Such certification from the Chief Executive is legally binding on the courts.
Therefore, SCNPC interpretation of Article 47 empowers the Chief Executive as a crucial legal gatekeeper, who can issue a certificate with legally binding impact on the courts, and whose certificate can deal with national security-related questions. The empowerment of the Chief Executive, together with that of the CSNS, has become the defining feature of the SCNPC interpretation.
Third, on the question of whether a foreign lawyer without full practising qualifications in Hong Kong can be allowed to act as the legal representative of the litigant concerned, the SCNPC refers this question to the certification from the Chief Executive as required in Article 47. Moreover, the interpretation has added that, if the local courts do not seek the certification from the Chief Executive, then the CSNS should in accordance with Article 14 make the related judgment and decision.
This means that even if the local Hong Kong court may not seek the certification from the Chief Executive, the CSNS should perform its duties procedurally under Article 14 to make related judgment and decisions. Again, the interpretation empowers both the Chief Executive and the CSNS as double gatekeepers in the process of clarifying questions related to the national security cases.
From a political perspective of clarifying who gets what, when and how, there are several characteristics of the SCNPC interpretation.
First, the SCNPC interpretation empowers both the Chief Executive and the CSNS, the former with the legitimate right of issuing a certificate and the latter with the legitimacy and authority of making related judgements and decisions. Politically speaking, the Chief Executive an the CSNS are empowered legally to make judgments and decisions on national security-related questions, such as whether a foreign lawyer without full local qualifications can deal with a national security case. To put it simply, the Chief Executive and CSNS appear to have the legal and political power of interpretating how national security-related questions should be handled.
Second, the local media were wrong in predicting that the SCNPC interpretation would touch on Article 55, Article 12, Article 13, and Article 63 of the National Security Law. None of them was discussed by the SCNPC interpretation. A careful reading of Article 55 shows that it is concerned about the jurisdiction of the Office for Safeguarding National Security of the Central People’s Government (OSNSCPG) in Hong Kong when a national security-related case is complex, serious, and threatening. Article 12 is concerned about CSNS’s supervision by and accountability to the central government, while Article 13 touches on the composition of the CSNS. Article 63 is concerned about the confidentiality requirements for legal authorities and lawyers who handle national security-related cases.
Instead, the SCNPC interpretation appears to adopt a minimalist but an effective approach to focusing on only Article 14 and Article 47 of the National Security Law, and to empowering and legitimizing the role of the CSNS and the Chief Executive in dealing with national security-related questions. As such, while the local media were inaccurate in predicting which Articles would be interpreted by the SCNPC, the interpretation itself has turned out to be far more minimalist, effective, and yet powerful. The phenomenon shows that many Hong Kong media analysts and even legal experts still do not fully understand the mainland Chinese law.
Third, immediately after the SCNPC interpretation, Chief Executive John Lee revealed that the government would study how to amend the Legal Practitioners Ordinance for the sake of enhancing the safeguard for national security. According to Article 14 of the National Security Law, the CSNS shall analyse the assess the developments, make work plans, formulate policies, and advance the development of legal system and enforcement mechanisms that are related to the protection of national security. The Chief Executive’s remarks on the night of December 30 pointed to the need to amend the existing ordinance on legal practitioners.
With the benefit of the hindsight, when the debate emerged a few weeks ago over whether the SCNPC interpretation would really be required on the issue of a foreign lawyer without local qualifications to deal with a national security-related case, there were some local media reports critical of the Hong Kong government’s legal experts, who according to such criticism could perhaps have done a better job by amending the related local ordinance in the first place without seeking the SCNPC interpretation.
Fourth, the interpretation made by the SCNPC was a shrewd one because it does not touch on the decision of the local court judges in the HKSAR. Nor does it answer the question directly on whether a foreign lawyer without local qualifications should be allowed to deal with a national security case. Instead, the interpretation just clarifies the legal procedures and empowers both the Chief Executive and the CSNS to make proper judgements and decisions. As such, the SCNPC interpretation respects the rule of law in Hong Kong, but it merely adopts a minimalist approach in clarifying the proper procedures to deal with the request made from the central government.
In conclusion, the SCNPC interpretation adopts an arguably a minimalist but an effective approach in dealing with the Hong Kong government’s request. It seeks to clarify the procedures of handling the national security case concerned, while empowering the CSNS and the Chief Executive to make decisions and judgements. With the benefit of hindsight, the fact that the Hong Kong government would later amend the legal practitioners’ ordinance shows that it might have done more in the first place. Still, remedial measures will be taken by the local administration. In brief, the interpretation made by the SCNPC is minimalist, effective, legally binding, and is empowering the CSNS and Chief Executive to deal with the national security question concerned in a positive and powerful manner, while simultaneously avoiding any comment on the previous decisions made by the local courts.