By Celeste Lo

The relationship between national security and human rights is one of complexity, requiring a delicate equilibrium where both concepts must be balanced yet seen as mutually reinforcing. In judicial practice, courts around the world face the challenge of upholding national security while simultaneously ensuring the protection of fundamental human rights and freedoms within the constraints of the legal framework. This challenge is particularly pronounced in Hong Kong, where the introduction of the National Security Law (NSL) by the PRC Central Government in 2020 has presented the courts with an intricate legal landscape.

Hong Kong’s courts have adopted a multifaceted approach in navigating this landscape, with varying responses depending on the nature of the impugned laws or administrative decisions at hand. These approaches can be broadly categorised into three key areas.

National Legal Disputes： Utilisation of Matrix Theory

The first category pertains to cases involving PRC national laws, particularly those concerning the interpretation and application of specific provisions of the NSL. As a national law enacted by the Standing Committee of the National People’s Congress (NPCSC), the authority of the NSL is absolute. In line with the principles established in Ng Ka Ling (No.2), Hong Kong courts are precluded from questioning any actions by the NPCSC that adhere to the Basic Law’s framework, and therefore cannot assess the constitutionality of the NSL, either in light of the Basic Law or international human rights instruments such as the International Covenant on Civil and Political Rights. This principle was further reinforced in HKSAR v Lai Chee Ying【2021】HKCFA 3, commonly referred to as the Jimmy Lai bail case.

However, the NSL’s supremacy does not entirely displace the role of the Basic Law or local Hong Kong statutes in safeguarding human rights and freedoms. In cases involving PRC national laws, Hong Kong courts have frequently employed a “matrix theory” to reconcile national security imperatives with human rights guarantees. In the Lai Chee Ying bail case, for example, the Court of Final Appeal highlighted the relevance of Articles 4 and 5 of the NSL, which emphasise the protection of human rights and adherence to the rule of law. These provisions, the court argued, provide the necessary interpretive context for understanding the NSL’s bail provisions. Thus, the NSL must be harmonised with constitutional rights, including freedoms enshrined in Hong Kong laws, to safeguard the rule of law  (see paras 38-44) .

While personal liberty is a fundamental right under Hong Kong law, it is not absolute. The Criminal Procedure Ordinance governs the court’s discretion in bail decisions, while the NSL introduces a more stringent framework for bail in national security cases  (see paras 45-54) . The application of this matrix theory extends beyond bail to encompass issues such as trial by a panel of three judges in lieu of the jury in national security trials, as seen in Tong Ying Kit v Secretary for Justice【2021】HKCFI 1397, and its appellate ruling Tong Ying Kit  (No.6)【2021】HKCA 912, as well as the interplay between NSL Article 43 Implementation Rules and human rights, as discussed in Lai Chee Ying v Secretary for Justice 【2021】HKCFI 2804.

Local Legal Disputes: The Hysan Development Test and Interpretative Approaches

The second category of cases concerns local legal disputes involving offences related to national security as defined by Hong Kong’s domestic laws. Here, the courts can scrutinise the domestic laws for constitutional compliance using the test established in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372. This allows the courts to invalidate any local laws found unconstitutional. In HKSAR v Tam Tak Chi【2024】HKCA 231, a case involving sedition, the Court of Appeal applied the four-step test from Hysan to determine whether Sections 9 and 10 of the Crimes Ordinance aligned with constitutional standards, ultimately affirming the constitutionality of the sedition offence.

The interpretation of legal provisions in national security cases also plays a crucial role in balancing human rights. In cases concerning sedition, the prosecution and defence have debated whether it is a crime of general or specific intent. General intent refers to the intent to commit the criminal act, while specific intent involves an intention to achieve a particular outcome. From Tam Tak Chi to Sheep Village, to the Stand News case, this debate over intent has been central. In the Stand News case, the prosecution argued that knowing the seditious nature of the article sufficed to establish the general intent of the crime, even if there was no intent to incite. However, the court rejected this argument, citing Kulemesin v HKSAR (2013) 16 HKCFAR 195, which held that for certain crimes, the prosecution must prove intent to cause or recklessness toward certain consequences. Thus, the court held that intent to incite, or recklessness in publishing seditious content, must be proven for the crime to be established. The court emphasised that interpreting sedition as a crime of general intent would undermine fundamental freedoms, particularly those relating to speech and publication.

Administrative Decisions: Deference and Limited Judicial Review

The final category involves administrative decisions related to national security, particularly decisions by the National Security Committee  (NSC)  and the issuance of certificates by the Chief Executive. Under Article 14 of the NSL, decisions by the NSC are not subject to judicial review. In Lai Chee Ying v The Committee for Safeguarding National Security of the HKSAR【2023】HKCFI 1382, the court acknowledged that the NSL, as national law under Annex III of the Basic Law, restricts the jurisdiction of Hong Kong courts. Although the case did not explicitly address how to balance national security and human rights, the national character of the NSL suggests that courts continue to apply matrix theory in such cases.

By contrast, certificates issued by the Chief Executive under Article 47 of the NSL are subject to judicial review, although they are binding on the court. In the Glory to Hong Kong appeal, the court reiterated its deference to administrative decisions while affirming its authority to review such decisions where they exceed legal authority, lack evidential basis, or are “Wednesbury unreasonable.”

Conclusion: Navigating the Balance between National Security and Human Rights

In sum, where national security laws pertain to local legislation, Hong Kong courts exercise broader scrutiny over constitutional issues, employing rigorous reasoning and drawing on comparative legal principles from other common law jurisdictions. This enables a more balanced approach to safeguarding both national security and human rights.

Conversely, when dealing with national laws such as the NSL, the courts’ ability to challenge the law’s constitutionality is curtailed. In these cases, courts rely on more mechanistic reasoning through matrix theories, which can result in a less coherent logic. Over time, it is imperative that Hong Kong courts cautiously explore the nuance and balance between national security and human rights protections in national security law, in order to foster greater consistency and complementarity between the two.

While the NSL’s status as a national law limits the scope of judicial review, Hong Kong courts continue to make meaningful efforts to uphold human rights and the rule of law within the constraints of the current legal framework. These efforts warrant further examination and continued development.

 (The author is Solicitor, Hong Kong; PhD Candidate in Law, Tsinghua University; Research Assistant, School of Law, City University of Hong Kong. This article represents the view of the author only.)