Jimmy Lai Photo: VCG
Hong Kong officials, legal professionals and observers welcome the country’s top legislature providing interpretations for provisions under the National Security Law for Hong Kong, which absolutely does not affect the city’s judiciary independence, but instead clarifies the legislative intent of a number of provisions of the NSL for Hong Kong, providing more authoritative and clear guidelines for the judicial practice of the Hong Kong Special Administrative Region (HKSAR). They also refuted Western media’s criticism over the interpretation claiming that it undermined the city’s high degree of autonomy.
The National People’s Congress Standing Committee adopted the interpretation of Article 14 and Article 47 of the NSL for Hong Kong on Friday following a proposal submitted to respond to a report by the HKSAR Chief Executive (CE) to the central government after infamous secessionist media tycoon Jimmy Lai attempted to hire a London-based barrister to defend his national security case.
Tam Yiu-chung, a member of the NPC Standing Committee (NPCSC) from Hong Kong, told the Global Times on Saturday that the interpretation of the provisions of the NSL for Hong Kong further clarified the special status and important responsibilities of the HKSAR in solving national security issues, further making it clear the legislative intent of the NSL for Hong Kong and providing a mechanism to solve similar problems in the future.
“The law interpretation could help clarify which legal professionals could involve in national security cases and prevent any potential risks, dispelling concerns over the possible interference of foreign forces in Hong Kong affairs and in endangering the national security,” Tam said.
Article 14 of the NSL for Hong Kong stipulates the duties and functions of the Committee for Safeguarding National Security of the HKSAR, while Article 47 stipulates that the courts of the HKSAR shall obtain a certificate from the CE 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.
“When a court hears a case related to the NSL for Hong Kong, it needs to ask the CE and obtain a certificate from the CE when it encounters the issue of whether the relevant act involves national security or whether the relevant material involves state secrets,” Willy Fu, a law professor and vice-chairman of the Hong Kong Legal Exchange Foundation, told the Global Times on Saturday.
The certificate is issued based on analysis of facts, evidence and in accordance to the law, which is fair and justified, creating a positive effects on the HKSAR’s correct exercise of independent judicial power and final adjudication power in line with the law, and there’s no such thing of damaging the high degree autonomy of the HKSAR, Fu said.
Some Western media outlets such as the Wall Street Journal and Nikkei criticized the legal interpretation by claiming that the top authority “lets Hong Kong leader override courts over Jimmy Lai’s lawyer,” and “devastates the remaining degree of rule of law and judicial independence of Hong Kong.” However, legal professionals in Hong Kong believed that those media have not fully grasped the essence of the Constitution, the Basic Law and the NSL for Hong Kong, which is the ill-intentioned slander that should be strongly condemned.
“The law interpretation does not mean the administration has the power to interfere in or change the court’s ruling. In fact, local courts in the Western countries also respect the special statutory powers enjoyed by executive agencies in safeguarding national security,” Lau Siu-kai, a consultant from the Chinese Association of Hong Kong and Macao Studies who is also a senior policy advisor, told the Global Times on Saturday.
The Law Society of Hong Kong said in a statement sent to the Global Times on Saturday that it’s trite law that the power to interpret the NSL for Hong Kong is vested in the NPCSC and the Article 45(2) of the Legislation Law of the China states that the NPCSC shall give interpretation to a national law in the circumstance that a new situation arises after enactment of such legislation, thereby requiring clarification of the basis of its application.
Further, Article 62 of the NSL states that “this law shall prevail where provisions of the local laws of the HKSAR are inconsistent with the law.”
The HKSAR enjoys independent judicial power, including that of final adjudication under the Article 2 of the Basic Law and the Basic Law stipulates that Hong Kong residents shall have the right to choose their lawyer.
“The interpretation clarifies the legislative intent of a number of provisions of the NSL, including the mechanism whereby lawyers can be involved in NSL cases,” the Law Society said.
In fact, the national security is a top priority, which is the fundamental purpose of maintaining Hong Kong’s long-term prosperity and stability, enabling One Country, Two Systems to be implemented steadily in a long run, Kenneth Fok Kai-kong, member of the Legislative Council of the HKSAR, told the Global Times on Saturday.
“The NSL for Hong Kong has constitutional status, and we can’t use general principles, administrative procedures and customs to constrain its implementation,” Fok said.
The interpretation by the NPCSC effectively plugged the loopholes in the enforcement mechanism of relevant laws and regulations and confirmed the handling methods and procedures of national security cases, further clarifying the status and the role of the NSL for the Committee for Safeguarding National Security of the HKSAR in order to ensure the correct practice in the future, the lawmaker said.
The Basic Law Committee’s vice-chairwoman, Maria Tam, was quoted as saying in media reports on Saturday that the interpretation actually strengthens the power given to Hong Kong regarding national security.
There was no criticism made against Hong Kong courts during the discussion of the country’s top legislature session, and local courts are independent, she said, noting that the latest interpretation is different from the previous ones, and it affirms the HKSAR’s power on security issues.
“This interpretation respects the high degree of autonomy already given to Hong Kong regarding national security policy and implementation. The power is now totally unaffected, and the ability to enforce it is strengthened,” she was quoted as saying in a report by RTHK on Saturday.