Tu Haiming：NPCSC interpretation asserts authority of the National Security Law
日期：2023-01-06来源：
紫荆
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By Tu Haiming
The Standing Committee of the National People’s Congress (NPCSC) interpreted Articles 14 and 47 of the National Security Law (NSL) for Hong Kong last Friday, the first interpretation of the NSL since it took effect in June 2020, clarifying and affirming the overriding powers of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (CSNS) and the chief executive on matters of national security in the city.
Evidently, the interpretation is of great significance to not only the accurate and effective implementation of the NSL but also deepening understanding of the NSL among members of society.
In interpreting Article 14, the NPCSC confirmed the powers bestowed on the CSNS by the NSL, including the right to analyze and assess developments in relation to safeguarding national security in Hong Kong, the right to not disclose its work to the public, and the right to make decisions that are not amenable to local laws, among others.
Article 42 of the Legislative Law of the People’s Republic of China stipulates that a law shall be interpreted by the NPCSC if: 1) the specific meaning of a provision needs to be further defined; or 2) after its enactment, new developments make it necessary to define the basis on which to apply the law. Article 14 of the NSL is interpreted based on the first provision of Article 42.
In clarifying the legislative intent behind Article 47, the NPCSC affirmed that Hong Kong courts must 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 adjudicating national security cases. The certificate shall be binding on the courts.
The interpretation clarifies the boundary of powers in handling national security cases, affirming that the power to determine whether an act in the process of handling a national security case involves State secrets is vested in the chief executive instead of the judiciary. If the chief executive determines a court procedure or measure might compromise State secrets, the judiciary must abide by the chief executive’s relevant decisions.
This power of the chief executive is established on solid legal grounds. The Basic Law establishes the chief executive as the head of both the HKSAR government and the special administrative region. As the head of the region, the chief executive is accountable to the central government and is granted powers that are above those of the executive, legislative and judicial organs; such superior powers are manifested in safeguarding national security, for instance. Many people in Hong Kong, including some judges, are oblivious to the chief executive’s superior status and power, and see the chief executive only as the leader of the HKSAR government but not the head of the region.
The truth is the chief executive represents the HKSAR government when handling local affairs, with the executive, the legislature and the judiciary effecting checks and balances. However, in handling issues involving the “one country” principle, the chief executive must be accountable to the central government and assume the constitutional responsibility prescribed by the Basic Law. In such cases, the executive, legislative and judicial organs must abide by decisions made by the chief executive. With this knowledge, one would easily understand why the certificate issued by the chief executive “shall be binding on the courts” under Article 47.
The NPCSC interpretation clarified that question of whether foreign lawyers without full qualifications to practice in the HKSAR can handle national security cases falls under Article 47 of the NSL, and shall obtain a certificate from the chief executive. If the courts fail to obtain such a certificate, the CSNS shall, in accordance with Article 14 of the NSL, perform its statutory duties to make related judgments and decisions on the matter.
With this clarification, the CSNS must now unswervingly carry out its duties under the NSL. This is crucial to the accurate and effective implementation of the law.
Some members of the executive and judiciary are used to handling issues or disputes under a common-law mindset. However, everyone should bear in mind that the NSL is promulgated in accordance with China’s Constitution, the Basic Law and decisions made by the NPCSC, and hence has distinctive characteristics of continental law. When adjudicating national security cases, Hong Kong judges should take the perspectives of civil law into account, and respect the powers of the CSNS and the chief executive while rightfully exercising their own powers conferred by the law.
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.
Tu Haiming：NPCSC interpretation asserts authority of the National Security Law
紫荆
2023-01-06 14:40
2023-01-06 14:40
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By Tu Haiming
The Standing Committee of the National People’s Congress (NPCSC) interpreted Articles 14 and 47 of the National Security Law (NSL) for Hong Kong last Friday, the first interpretation of the NSL since it took effect in June 2020, clarifying and affirming the overriding powers of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (CSNS) and the chief executive on matters of national security in the city.
Evidently, the interpretation is of great significance to not only the accurate and effective implementation of the NSL but also deepening understanding of the NSL among members of society.
In interpreting Article 14, the NPCSC confirmed the powers bestowed on the CSNS by the NSL, including the right to analyze and assess developments in relation to safeguarding national security in Hong Kong, the right to not disclose its work to the public, and the right to make decisions that are not amenable to local laws, among others.
Article 42 of the Legislative Law of the People’s Republic of China stipulates that a law shall be interpreted by the NPCSC if: 1) the specific meaning of a provision needs to be further defined; or 2) after its enactment, new developments make it necessary to define the basis on which to apply the law. Article 14 of the NSL is interpreted based on the first provision of Article 42.
In clarifying the legislative intent behind Article 47, the NPCSC affirmed that Hong Kong courts must 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 adjudicating national security cases. The certificate shall be binding on the courts.
The interpretation clarifies the boundary of powers in handling national security cases, affirming that the power to determine whether an act in the process of handling a national security case involves State secrets is vested in the chief executive instead of the judiciary. If the chief executive determines a court procedure or measure might compromise State secrets, the judiciary must abide by the chief executive’s relevant decisions.
This power of the chief executive is established on solid legal grounds. The Basic Law establishes the chief executive as the head of both the HKSAR government and the special administrative region. As the head of the region, the chief executive is accountable to the central government and is granted powers that are above those of the executive, legislative and judicial organs; such superior powers are manifested in safeguarding national security, for instance. Many people in Hong Kong, including some judges, are oblivious to the chief executive’s superior status and power, and see the chief executive only as the leader of the HKSAR government but not the head of the region.
The truth is the chief executive represents the HKSAR government when handling local affairs, with the executive, the legislature and the judiciary effecting checks and balances. However, in handling issues involving the “one country” principle, the chief executive must be accountable to the central government and assume the constitutional responsibility prescribed by the Basic Law. In such cases, the executive, legislative and judicial organs must abide by decisions made by the chief executive. With this knowledge, one would easily understand why the certificate issued by the chief executive “shall be binding on the courts” under Article 47.
The NPCSC interpretation clarified that question of whether foreign lawyers without full qualifications to practice in the HKSAR can handle national security cases falls under Article 47 of the NSL, and shall obtain a certificate from the chief executive. If the courts fail to obtain such a certificate, the CSNS shall, in accordance with Article 14 of the NSL, perform its statutory duties to make related judgments and decisions on the matter.
With this clarification, the CSNS must now unswervingly carry out its duties under the NSL. This is crucial to the accurate and effective implementation of the law.
Some members of the executive and judiciary are used to handling issues or disputes under a common-law mindset. However, everyone should bear in mind that the NSL is promulgated in accordance with China’s Constitution, the Basic Law and decisions made by the NPCSC, and hence has distinctive characteristics of continental law. When adjudicating national security cases, Hong Kong judges should take the perspectives of civil law into account, and respect the powers of the CSNS and the chief executive while rightfully exercising their own powers conferred by the law.
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.
Tu Haiming：NPCSC interpretation asserts authority of the National Security Law
The Standing Committee of the National People’s Congress (NPCSC) interpreted Articles 14 and 47 of the National Security Law (NSL) for Hong Kong last Friday, the first interpretation of the NSL since it took effect in June 2020, clarifying and affirming the overriding powers of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (CSNS) and the chief executive on matters of national security in the city.
