Explainer: NPCSC’s Interpretation of Hong Kong National Security Law over Jimmy Lai’s Foreign Defense Counsel

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On December 30, China’s national legislature, the Standing Committee of the National People’s Congress (NPCSC), issued its inaugural interpretation (Interpretation) of the Law on Safeguarding National Security in the Hong Kong SAR (HKNSL) [香港特别行政区维护国家安全法]. We have recently explained the events leading up to the Interpretation in detail here. In sum: Jimmy Lai, the Hong Kong pro-democracy activist, is facing criminal charges under Hong Kong’s local sedition law and the HKNSL. He decided to retain Timothy Owen, a renowned British barrister, for his defense. Owen is not admitted to the Hong Kong bar, but the trial court allowed him to represent Lai on an ad hoc basis. After having failed to have the trial court’s decision reversed on appeal, the Hong Kong government turned to the NPCSC, which has the ultimate authority to interpret the HKNSL.

John Lee, Hong Kong’s leader, requested the NPCSC to answer this open-ended question: “Based on the legislative intent and objectives of the [HKNSL], 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?” His request, notably, did not identify any specific HKNSL provision that needs clarification.

Contrary to what many had expected, the NPCSC exercised restraint in responding to Lee’s request. It did not directly ban foreign lawyers from participating in national security cases; in fact, it altogether punted on the question presented. The Interpretation instead clarifies that the HKNSL has already given the Hong Kong government adequate tools to resolve the issue. The ball is now back in the latter’s court.

Below, we explain Friday’s Interpretation and offer some preliminary thoughts on its implications in Q&A format.

1. What HKNSL provisions were interpreted?

The Interpretation concerns articles 14 and 47 of the HKNSL.

Article 14 provides for the duties of Hong Kong’s Committee for Safeguarding National Security (Committee), a new governmental body established by the HKNSL. It is chaired by the Chief Executive and accountable to the central government. Under this article, the Committee performs mostly planning, policymaking, and coordinating functions. This article also provides that the Committee’s work is not subject to interference by any other public or private entity, and that its decisions are not subject to judicial review.

Article 47 lays down the so-called “Chief Executive certification” process. It empowers the Chief Executive to certify, in the context of a court case, “whether an act involves national security or whether relevant evidence involves State secrets.” The courts must obtain such a certificate from the Chief Executive whenever such a question arises in a case, and must be bound by the certificate.

2. How has the NPCSC interpreted those provisions?

The Interpretation has clarified both the meaning and application of the two articles.

(a) Regarding article 14, it clarifies that the Committee, in light of its statutory functions, also has the authority to “make judgments and decisions” on whether an issue of national security is involved. The Interpretation reiterates that the Committee’s decisions are not subject to judicial review, adding that they also “have enforceable legal effect” [具有可执行的法律效力] (translated by the Hong Kong government as “may be legally implemented”). Finally, the Interpretation appears to infer from the non-interference obligation imposed on all other public and private entities an obligation to “respect and carry out” the Committee’s decisions.

(b) Regarding article 47, the Interpretation clarifies only that, to obtain a certificate from the Chief Executive, a court must first submit such a request to the latter. This, in our view, is merely making explicit a step that was clearly implied by the certification process as originally written.

(c) Finally, the Interpretation addresses how articles 14 and 47 apply to a new situation that has emerged  after the HKNSL’s enactment: where allowing overseas counsel not generally admitted to practice in Hong Kong to represent defendants in national security cases (allegedly) may “pose national security risks.” The question whether an overseas lawyer may participate in a particular case is one that requires certification under article 47. Should a court fail to obtain a certificate from the Chief Executive, the Committee has the authority under article 14 to make a judgment or decision on the question.

3. What have we learned about the NPCSC’s approach to HKNSL interpretation?

An official with the NPCSC Legislative Affairs Commission, which appears to have been involved in the Interpretation’s drafting, shed some light on the legislature’s interpretive approach in a lengthy interview with state media.

The official explained that the Interpretation followed the mainland’s Legislation Law [立法法] in two key aspects. First, under that Law, the NPCSC should interpret a statute when (1) when the “specific meaning” of a provision needs further clarification; or (2) when it is necessary to clarify the “applicable statutory basis” in new circumstances that have arisen after a statute’s enactment. The Interpretation, according to the official, serves both purposes: points (a) and (b) clarify the meaning of two HKNSL provisions, whereas point (c) makes clear their application in a new situation.

Second, the official explained that the NPCSC’s legislative interpretations “have generally not addressed whether a specific issue is consistent with a law’s legislative intent and original meaning in isolation from relevant provisions of the law” (our emphasis), implying that the NPCSC’s HKNSL interpretation would be no different. In so doing, the official also appears to suggest that the Chief Executive’s question was too open-ended and detached from specific provisions of the HKNSL, thus could not be directly answered by a legislative interpretation.

Finally, the official made clear that the NPCSC’s legislative interpretations have retroactive effect (an issue on which the Legislation Law is silent), so Friday’s Interpretation should be deemed to have been in force since the HKNSL’s effective date. (This assertion is consistent with Hong Kong courts’ long-held view that the NPCSC’s Hong Kong Basic Law interpretations are retroactive.)

By publicly explaining the principles it has followed in adopting the Interpretation, the NPCSC likely intended to create a precedent for any future HKNSL interpretation. And by heeding fairly closely to the Legislation Law’s requirements and the statutory text, it may also attempt to assuage concerns that it would intervene whenever new issues arise in the HKNSL’s enforcement.

4. What are the Interpretation’s implications for Lai’s case and in general?

Editor’s Note (Jan. 2, 2023): For additional commentaries on the Interpretation’s broader implications, please refer to the sources collected in this post on the Big Lychee blog.

Because litigation over Owen’s ad hoc admission has ended, point (c) of the Interpretation suggests that the Chief Executive certification process is no longer available. Instead, the Committee must decide whether to bar Owen’s participation in Lai’s case. Because the Interpretation has retroactive effect, the Committee is deemed to have always had such authority.

While the Committee’s power to bar foreign lawyers in individual cases is clear, the Interpretation is silent on whether it may impose a blanket ban on overseas counsel in all national security cases. Regardless, the Hong Kong government signaled (as some national lawmakers have recommended) that it would pursue an across-the-board solution to the problem by proposing amendments to the Legal Practitioners Ordnance, the local law that authorized Owen’s ad hoc admission.

Beyond the confines of Lai’s case and the specific issue it raised, the Committee’s seemingly broad and unreviewable power to “make [enforceable] judgments and decisions” on whether an issue of national security is involved, regardless of setting, could be cause for concern. It awaits to be seen whether and to what extent it would invoke this newly declared authority to deal with other situations in the future.

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