Top Beijing official urges Hong Kong government to amend city laws to align them with ‘overriding’ national security legislation
- Xia Baolong, director of State Council’s Hong Kong and Macau Affairs Office, also underscores dual mechanism of national security law
- He says Beijing has spelled out ways for successful implementation of law, and that central government will help to tackle ‘intractable problems’
Hong Kong should amend its laws to align them with “overriding” national security legislation, a top Beijing official with responsibility for city affairs has said, as the government moves towards a ban on overseas lawyers in sensitive cases.
The mechanism allows for Hong Kong to have the main responsibility for national security, but the central authorities can step in to tackle “intractable” problems the city’s government cannot resolve, according to Xia.
Chief Executive John Lee Ka-chiu and some pro-establishment figures have highlighted the need to amend Hong Kong legislation to prevent foreign lawyers from appearing in trials involving the state’s interests, as well as a requirement for the city’s own national security law to complement the Beijing-imposed version.
Xia delivered the remarks by video link at a closed-door seminar in Hong Kong on the application of the law.
The audience included the city’s leader, Luo Huining, head of the central government’s liaison office in Hong Kong, and some of the city’s most prominent Beijing loyalists.
The event came weeks after the country’s top legislative body, the National People’s Congress (NPC) Standing Committee, handed down an interpretation of the national security law in a bid to end controversy triggered by media mogul Jimmy Lai Chee-ying’s bid to hire London barrister Timothy Owen to defend him against charges of collusion with foreign forces.
Beijing ruled the matter could be left to the city’s leader and a safeguarding committee to decide, rather than delivering an expected outright ban on foreign lawyers in national security cases.
“The NPC Standing Committee, while drafting the legislation, has given overriding status to the national security law, which application should take priority [over other laws],” Xia told the seminar organised by semi-official think tank the Chinese Association of Hong Kong and Macau Studies.
“The Hong Kong government should actively amend and improve local legislation to unify it with the national security law organically to safeguard national security and the city’s prosperity and stability.”
Committee backs ban on overseas lawyers in Hong Kong national security cases
Xia said that under the dual implementation mechanism, Beijing would have final responsibility for national security matters in the city.
But he added the city’s administration was also empowered to protect national security.
“The NPC Standing Committee’s ruling has laid down the ways and mechanism for the Hong Kong government to resolve problems arising from the implementation of the national security law,” he said.
“It also spelled out the legislative intent of the law, which is, the local government is empowered and tasked with the responsibility to handle the actual problems.”
Xia was speaking just days before the city holds its Legal Year opening ceremony, where Chief Justice Andrew Cheung Kui-nung and legal officials will deliver speeches outlining their views on the legal system or recent controversies.
The standing committee earlier clarified two clauses of the law and said Article 47 of the national security law governed whether overseas lawyers could take on sensitive cases and required the chief executive’s input.
The courts should, if there was doubt, obtain a certificate from the city leader to verify whether an offence involved national security or if the evidence featured state secrets, it said.
The top body added that the city’s Committee for Safeguarding National Security could step in and make a decision under Article 14 of the national security law if the courts failed to make a request for a certificate.
On Wednesday, the high-level committee, chaired by Lee, cleared the way for the government to amend the Legal Practitioners Ordinance to prevent foreign lawyers from taking part in national security trials.
Lai’s trial was scheduled for last month but adjourned to September after Lee asked Beijing for an interpretation of the security law in the wake of a failed legal bid at the Court of Final Appeal to ban Owen from appearing for the owner of the now-closed Apple Daily newspaper.
Lee wrote on his Facebook page on Friday that, apart from amending the ordinance, the government would also promote new legislation under Article 23 of the Basic Law, the city’s mini-constitution, as soon as possible.
Article 23 gives the city power to target treason, theft of state secrets and foreign political bodies engaging in political activities in the city.
“The international economic and political landscape is complex and changeable, while all countries are extremely vigilant against threats to national security,” Lee wrote. “The government should always pay attention to new situations that endanger national security, and make every effort to prevent, stop and punish behaviours and activities that endanger national security.”
Hong Kong ‘should impose blanket ban’ on foreign lawyers taking on security cases
Pro-Beijing heavyweight Tam Yiu-chung, who attended the session, said some participants raised the need for further legislation under Article 23, but denied there was a timetable.
Tam, the city’s sole delegate to the standing committee, joined another pro-establishment lawmaker in shrugging off concerns that such amendments would impact the city’s common law tradition and rule of law.
Priscilla Leung Mei-fun, a barrister and member of the Legislative Council, argued that, in other common law and civil law jurisdictions, the judiciary would be asked to be excused in certain cases involving national security matters.
Can Beijing influence national security court disputes in Hong Kong after ruling?
“It is always the situation that it will not affect the judicial independence of Hong Kong, because that is not uncommon,” she said.
“In fact, they reflect that the rule of law is the cornerstone of ‘one country, two systems’ and they, by way of a national security law to restore the public order and safety of the Hong Kong companies, are also a reflection of the importance of rule of law in Hong Kong,” she said.
Professor Lin Feng, acting dean of City University’s law school who has researched national security legislation, said it would be “straightforward” if the city’s amendment only involved the prohibition of foreign lawyers in national security cases.
“Our courts only need to implement them. I even doubt that any disputes will be brought before the courts if the amendment is clear enough,” he told the Post.
“Impacts on common law tradition come more from the national security law itself, such as on bail and jury trial. Judging from what the court has decided in Jimmy Lai’s case, Hong Kong courts are competent and capable of dealing with such issues.”
University of Hong Kong academic Albert Chen Hung-yee, who specialises in constitutional law, said he believed Xia was referring to legal amendments that arose from Lai’s case.
He explained that, at present, if another city statute contradicted national security law, the latter would prevail, subject to the courts’ ruling.
But Chen said he did not see an urgent need to amend Hong Kong legislation, other than the Legal Practitioners Ordinance.
Michael Davis, formerly of the law school at the University of Hong Kong, said Beijing had over the past two years giving much higher priority to the national security law than other local laws, including the Basic Law. Doing so had turned Hong Kong into a local “territory” where the primary interest was on national security as defined by Beijing.
“It is very difficult for the common law system to work, especially when it comes to guarding basic rights, in the face of such constraints [that prioritise the security law],” he said.
“If human rights and the rule of law are forced to give way to official control every time the notion of national security is raised, then these institutions will have great difficulty functioning. The recent interpretation raised grave concern in that regard, as it appeared to require the courts give way to the government when the government raises a national security concern.”