Editor’s Note (Dec. 30, 2022): The NPCSC on Friday, December 30 issued an interpretation of articles 14 and 47 of the Hong Kong National Security Law. Our explainer is available here.
Jimmy Lai, the Hong Kong pro-democracy activist and media tycoon, has been indicted on four national security charges and was scheduled to stand trial on Thursday. (The government has asked the court to postpone the trial in light of the development discussed below.) He is being accused of violating Hong Kong’s seditious publications law and of conspiring to “collude with a foreign country or external elements to endanger national security” under the Law on Safeguarding National Security in the Hong Kong SAR (NSL) [香港特别行政区维护国家安全法].
Recently, Lai retained Timothy Owen, an experienced British barrister, to lead his defense team. Owen, as one Hong Kong court recognized, is a “renowned specialist in criminal, public and human rights law, with substantial experience in cases concerning national security and freedom of speech.” He has appeared before Hong Kong courts in the past but is not admitted to the Hong Kong bar. Over the Hong Kong government’s objection, the Court of First Instance allowed Owen to represent Lai on an ad hoc basis. After having suffered a streak of losses on appeal, the government on Monday decided to seek help from the NPC Standing Committee (NPCSC), which has the ultimate authority to interpret the NSL. Below, we will discuss the legal battle fought in Hong Kong courts, the government’s request for NPCSC intervention, and what to expect next.
Hong Kong Government’s Argument in Court
The Hong Kong government’s unsuccessful bid to bar Owen’s ad hoc admission ended on Monday when the Court of Final Appeal (CFA), Hong Kong’s apex court, declined to hear its appeal. According to the CFA, the government sought to raise “radically new points” that, “notwithstanding their obvious importance,” had not been fully passed upon by the courts below. Advancing new arguments at this stage, the CFA held, would “ha[ve] an impact on the fairness of the proceedings” and “hamper[] [its] ability to adjudicate effectively the appeal.”
What was government’s belated new argument? It, in essence, sought a “blanket ban” on ad hoc admissions of overseas counsel in national security cases, “subject only to undefined ‘exceptional circumstances.’” Under “well-established” legal principles, however, Hong Kong courts have “unfettered” statutory discretion to determine whether the admission of overseas counsel in particular cases is appropriate. They do so by weighing factors like the importance and complexity of the legal issues involved and whether the overseas counsel would add a “significant dimension” to the case.
The government rejected those principles as “inapposite” for national security cases and defended its novel approach on four main grounds. It first argued that the NSL is “inherently unique” as it came from a civil law system and was specifically drafted to safeguard China’s national sovereignty and security. For this reason, the government continued, overseas counsel, whose experience is “essentially confined” to the common law, have little to contribute to the development of Hong Kong’s NSL jurisprudence. In addition, it asserted that, because the NSL was enacted in part to address “interference in [Hong Kong]’s affairs by foreign or external forces,” admitting overseas counsel in national security case would “generally defeat that aim” as “there is no meaningful or effective” mechanism to enforce overseas counsel’s obligations under the NSL to keep confidential the state secrets they come to know. Finally, the government contended that the judiciary’s duty under various NSL provisions to prevent acts that endanger national security extends to “any possible attempt to use the legal process to compromise . . . national security.”
The Court of Appeal, the only court to have cursorily dealt with those new arguments when it denied the government’s request to appeal further, was not persuaded. In particular, it noted that Lai’s case did not involve state secrets, so any concern with their possible disclosure by overseas counsel was purely “hypothetical.” The court, moreover, pointed to the NSL’s global reach and the fact that Owen would still be bound by the code of conduct for English and Welsh barristers when practicing in Hong Kong, so dismissed the government’s claim that enforcement of Owen’s professional and legal obligations would be inadequate once he has left Hong Kong.
Chief Executive’s Request for NPCSC Interpretation
Within hours of the CFA’s ruling, Hong Kong’s Chief Executive, John Lee, announced that he would recommend that the State Council seek an interpretation of the NSL from the NPCSC. He framed the question that requires clarification as follows:
Based on the legislative intent and objectives of the National Security Law, can an overseas solicitor or barrister who is not qualified to practise generally in Hong Kong participate by any means in the handling of work in cases concerning offence endangering national security?
根据《香港国安法》的立法原意和目的，没有本地全面执业资格的海外律师或大律师可否以任何形式参与处理危害国家安全犯罪案件的工作？
In outlining his considerations for recommending NPCSC interpretation, Lee continued the “kitchen sink approach” that his government lawyers had used in court. He cited an assortment of NSL provisions, including ones giving the NSL “an overriding effect” on local Hong Kong laws and requiring Hong Kong authorities to effectively prevent acts that endanger national security, even though none directly speaks to the issue of defense attorneys in national security cases. The crux of his argument, it seems, was that Hong Kong authorities lacked “effective means” to ensure that overseas counsel would comply with the NSL’s confidentiality requirements, would be free from conflicts of interest due to their nationality, and would not be controlled or coerced by “hostile” foreign entities. Indeed, Lee appeared to insinuate that overseas counsel would be prone to “collusion with external elements.”
Lee’s failure to identify one or more specific NSL provisions that require interpretation stands in contrast to past Chief Executive requests for NPCSC interpretation of the Hong Kong Basic Law. Perhaps this was a tacit acknowledgement that, as Prof. Fu Hualing succinctly put it, the conceptual distinction between the NPCSC’s legislative interpretation and supplementation “is a distinction without differences.” The NPCSC may use legislative interpretation to clarify the applicable law in “new circumstances” that arise after a statute’s enactment. But “it, in its typical manner, does not offer explanations. It tells what it is but bot why it is. [So] it is difficult to say the formal distinction between interpretation and supplementation has much substance in Chinese law.”
In his statement, Lee also attempted to preempt criticism that barring defendants in national security cases from retaining overseas counsel would violate Hong Kong residents’ right to “choice of lawyers . . . for representation in the courts” under article 35 of the Basic Law. He alluded to a 2021 ruling by the Court of Appeal holding that, under article 35, a litigant “has no right to insist on being represented by a lawyer who does not have a general right to practise in Hong Kong.” But that case was a civil negligence case, so was not squarely on point. Criminal defendants potentially may have broader protections under the International Covenant on Civil and Political Rights and analogous Hong Kong civil rights law, both of which entitle a defendant to “defend himself . . . through legal assistance of his own choosing.” But Lee did not address these provisions in his statement.
NPCSC’s Forthcoming Interpretation
The NPCSC is expected to convene for a regular session in late December. Given the central government “pays utmost attention to [the request for interpretation],” according to Lee, the NPCSC is very likely to respond to his request at its upcoming session. The Council of Chairpersons, the top decisionmaking body within the NPCSC, is expected to meet to call the session by mid-December, and may disclose any relevant bill in the meeting readout. Note, however, that the NPCSC’s newly amended rules of procedure allow it to hide a bill until after its adoption, so the NPCSC could be considering an NSL interpretation even if its public agenda next month does not say so.
Under the mainland’s Legislation Law [立法法], the NPCSC may adopt a legislative interpretation after a single review, and in practice has not reviewed any interpretation more than once. We therefore do not expect the release of a public draft of the NSL interpretation before its approval, much less an opportunity for public comment.
As for the substance of its forthcoming action, the NPCSC is not limited to giving a simple “no” answer to Lee’s question (so that overseas counsel cannot participate in national security case at all), but may choose to lay down more complex rules on who may participate and under what circumstances. And even though Lee disavowed any intention to prevent foreign lawyers admitted to the Hong Kong bar or foreign judges who sit on the CFA from participating in national security cases, there is no guarantee that the NPCSC would stay within the scope of his request.
Under the Legislation Law, the NPCSC’s interpretation of the NSL has the same force as the NSL itself. And the interpretation would likely have retroactive effect (i.e., apply to acts before its announcement, such as Lai’s case), even though the Legislation Law is silent on this issue. Hong Kong courts have long held that the NPCSC’s Basic Law interpretations are retroactive and have not distinguished interpretations that clarify laws from those that supplement laws. The same reasoning likely applies to the NPCSC’s NSL interpretations as well.
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