On December 30, the National People’s Congress (NPC) Standing Committee for the first time interpreted provisions in the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region which came into force on June 30, 2020.
The national security law was made by the NPC Standing Committee, which is the permanent body of the NPC, which in turn is the highest organ of state of power under the constitution. Article 67(4) of the constitution provides that the NPC Standing Committee shall have the power to interpret laws. Such constitutional power is reaffirmed by Article 65 of the national security law. It is a linkage between the legal system of Hong Kong under the Basic Law and the constitution, as well as a fundamental aspect of the principle of “one country, two systems”.
The legislative interpretation by the NPC Standing Committee does not form part of the judicial proceedings of the Hong Kong courts. Hence, the independence of the Hong Kong judiciary will not be compromised because the Standing Committee exercises such power.
Whether overseas lawyers who are not qualified to practise generally in Hong Kong may be admitted ad hoc to act as legal representatives in cases involving national security is controversial. The interpretation provides guidance on how Hong Kong may resolve this issue by itself by using Articles 14 and 47 of the national security law.
First, it provides that the issue falls within the scope of Article 47. Under Article 47, the Hong Kong courts 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 case. The certificate shall be binding on the courts.
Second, if the Hong Kong courts have not obtained such a certificate, the Committee for Safeguarding National Security shall assess and decide on the matter in accordance with its responsibilities under Article 14. Such decision shall have legal effect and is not subject to judicial review.
There is a similar provision to Article 47 of the national security law under Article 19 of the Basic Law. It states the courts shall obtain a certificate from the chief executive on questions of fact concerning acts of state such as defence and foreign affairs. They are not matters falling within the scope of the high degree of autonomy enjoyed by Hong Kong under Articles 13 and 14 of the Basic Law.
Similarly, Article 3 of the national security law provides that the central government has an overarching responsibility for national security affairs relating to Hong Kong. Owing to the inherent nature of matters concerning national security, the executive is in a better position than the judiciary to decide.
Whether overseas lawyers who are not qualified to practise in Hong Kong should be allowed to appear in cases involving national security might be an issue concerning national security because they do not have any substantial connection with Hong Kong and are less likely to be subject to effective control in accordance with Hong Kong law and professional regulations.
The certificate issued under Article 47 serves as a piece of evidence only, albeit conclusive, in the case before the court. It is still for the court to decide on other issues and the outcome of the case. The chief executive does not usurp the function of the court. The arrangement in this respect does not impair the independent judicial power of the Hong Kong courts.