No loopholes should be allowed in national security defense

Judy Chan says while different views have arisen regarding an NPCSC interpretation of the NSL, no one disputes the need to safeguard national security

Chief Executive John Lee Ka-chiu said on Nov 28 that he would seek the National People’s Congress Standing Committee’s interpretation of the National Security Law (NSL) for Hong Kong, an announcement that was made after Hong Kong’s Court of Final Appeal (CFA) sustained the High Court’s decision to uphold Jimmy Lai Chee-ying’s request to hire British barrister Timothy Owen in his pending national security trial. Lai, a media tycoon who founded the now-defunct Apply Daily newspaper and an alleged perpetrator of various acts of social unrest, is charged with colluding with foreign forces to endanger national security.

Ever since the court ruling and the chief executive’s subsequent announcement, there has been widespread discussion across Hong Kong regarding the appropriateness of an NPCSC interpretation of the NSL. It is, however, an undisputed fact that national security must be safeguarded. It is of the utmost importance that the NSL is enforced in Hong Kong, and it is also the chief executive’s duty to ensure that the NSL is properly implemented according to its original intentions. Lee said while he respects the CFA’s ruling, he believes an interpretation by the NPCSC is necessary so that questions concerning the accurate implementation of the NSL are answered. 

Overseas common law jurisdictions, including Australia, the United Kingdom and Singapore, have enhanced their respective national security laws in response to the shifting nature of national security threats

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After the chaotic events of 2019 which threatened China’s national security, the promulgation of the NSL was intended not only to restore peace and order in the city, but also as the “silver bullet” for safeguarding national sovereignty in the special administrative region. In that regard, the implementation of the NSL should take into full consideration the very purpose of the legislation, or its legislative intent, which is of the utmost importance for effectively safeguarding national security in the Hong Kong Special Administrative Region. If the effective implementation of the NSL were at risk of being compromised by factors, such as the existence of loopholes that could be exploited by hostile foreign forces against the HKSAR or the country, the HKSAR government is obliged  to take remedial action. 

Article 63 of the NSL demands that anyone who comes to know confidential State secrets in the process of handling cases concerning the offense of endangering national security must not disclose those secrets. Arguably, the involvement of foreign legal practitioners in such cases could pose a potential threat to national security, as no effective mechanism exists to prevent them from breaching the confidentiality requirement, thus it was imperative for the chief executive to seek an NPCSC interpretation of the NSL to clarify whether overseas lawyers who have not practiced generally in Hong Kong should be allowed to engage in national security cases in the HKSAR.

Furthermore, Article 65 of the NSL states that “the power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”. Thus, the chief executive’s move to seek a legislative interpretation by the NPCSC to clarify the law’s legislative intent behind the articles is perfectly sound — both legally and logically. 

Overseas common law jurisdictions, including Australia, the United Kingdom and Singapore, have enhanced their respective national security laws in response to the shifting nature of national security threats. With some foreign states taking an increasingly hostile stance toward China and attempting to interfere with the country’s internal affairs, the NPCSC’s potential clarification can provide clear guidance on the implementation of the NSL. Leung Chun-ying, vice-chairman of the National Committee of the Chinese People’s Political Consultative Conference, has warned of the far-reaching consequences of allowing overseas barristers to participate in this case, and called the court decision “utterly wrong”.  

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Different views regarding a potential NPCSC interpretation have emerged, with former secretary for justice Elsie Leung Oi-sie reportedly having raised some questions, while others have suggested that amending local laws on the admission of overseas legal practitioners could be an alternative. But it is worth noting that, when making these arguments, no one disputed the need to safeguard national security. The CFA’s ruling and the public statement from the Hong Kong Bar Association also embrace the notion that safeguarding national security is part of the HKSAR’s constitutional obligation. Despite the legal arguments, the common goal is crystal clear: The court should never be allowed to be used by hostile foreign forces to undermine China’s national security.  

The author is a member of China Retold, a Legislative Council member, and a member of the New People’s Party.