Author: Tu Haiming

The Standing Committee of the National People’s Congress is expected to soon make its first legislative interpretation of the National Security Law for Hong Kong two years after its promulgation. It will be a landmark interpretation that ensures faithful and accurate implementation of the NSL.

It’s unsurprising that the executive branch and the judiciary of the Hong Kong Special Administrative Region have a different reading of the NSL. In such a case, a legislative interpretation by the NPCSC, which drafted the law and is the top legislative body of the country, is both natural and imperative.

Article 65 of the NSL stipulates that “the power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” This provision is underpinned by a strong legal basis. First, the NPCSC is the highest organ of State power; it is entitled to make legislative interpretations of the laws for safeguarding national security, which is a manifestation of upholding State sovereignty.

Second, the legitimacy of a legislative body interpreting the law it made is beyond doubt. The NSL is a comprehensive law, comprising substantive law, procedural law and organic law. The nature of this makes it impossible for the drafters to imagine all potential issues that could arise in the process of its future implementation. The NPCSC, having drafted the NSL, is the only entity that is qualified to interpret the law based on its legislative intent.

Furthermore, as no entity knows the legislative intent and rationale of the NSL better than the NPCSC, the NPCSC is the most authoritative voice to determine what is in line with the legislative intent. Hence, the NPCSC’s power to interpret the NSL is unassailable, and must be respected by Hong Kong’s judiciary.

The NSL is intended to shut foreign interference out of Hong Kong affairs. The involvement of a foreign counsel in a national security case could compromise its original intention. This indicates that there is ambiguity in the NSL that needs to be clarified by the NPCSC.

The NPCSC has delivered five interpretations on the Basic Law in the past, which all took place subsequent to disputes and failure to reach a decision. In each case, the NPCSC clarified relevant provisions instead of making suggestions on how to resolve a specific dispute. Hong Kong’s judiciary then came up with rulings based on the interpretations made by the top legislative body. The whole interpretation process not only cleared up doubts and disputes that Hong Kong courts could not resolve on their own but also strengthened the constitutional order of the HKSAR laid down by the nation’s Constitution and the Basic Law.

The Basic Law stipulates that Hong Kong’s capitalist system and its way of life shall remain unchanged for 50 years, whereas the city’s laws may be subject to amendment. Article 160 of the Basic Law stipulates that “the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People’s Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law”.

As the above provision makes it clear that Hong Kong’s local laws will remain relevant only if they do not contravene the Basic Law, it shows that the Basic Law is superior to local laws. Similarly, the NSL, a national law which is drafted and promulgated based on the Constitution, the Basic Law and the relevant NPCSC decisions, also has precedence over the city’s local laws.

Both the Basic Law and the NSL were drafted based on the principles of civil law, which may not always align with common law thinking. Some judges in Hong Kong have tended to understand the Basic Law and the NSL in a common-law way of thinking, overlooking their legislative intent and legal logic. They tended to put emphasis on the literal meaning of the laws, and interpret the law provisions on their own in cases of ambiguity.

The court’s admission of Timothy Owen, a British King’s Counsel, to defend Jimmy Lai Chee-ying in his national security trial is a case in point that manifests the conflicts between the common law and civil law systems.

After an NPCSC interpretation effectively tackles the dispute over overseas law practitioners’ involvement in national security cases, Hong Kong’s judiciary will need to seriously look into how Hong Kong’s common law system can align with the civil law system practiced on the Chinese mainland. It should come to realize that Hong Kong is part of China and there should be practical approaches for settling differences between the two legal systems.

As the NSL has only been in force for a little more than two years, it is unsurprising that some judges may fail to understand the law correctly. Therefore, it is a new task for Hong Kong judges to grasp the NSL.

The author is a Hong Kong member of the National Committee of the Chinese People’s Political Consultative Conference and chairman of the Hong Kong New Era Development Thinktank.

The views do not necessarily reflect those of Bauhinia Magazine.

Source: China Daily