NPCSC interpretation of NSL imperative

John Lee Ka-chiu, chief executive of the Hong Kong Special Administrative Region, said on Monday he would seek the National People’s Congress Standing Committee’s interpretation of the National Security Law for Hong Kong after the SAR’s top court, the Court of Final Appeal, upheld an earlier High Court decision to allow a British barrister to defend jailed media tycoon Jimmy Lai Chee-ying against charges under this law. The high odds that the effective enforcement of the law can be compromised by the involvement of overseas legal practitioners in cases concerning offenses endangering national security make it imperative for the SAR government to seek rectification.

Unlike with local legal practitioners, there is no effective mechanism to prevent or stop overseas defense counsels from leaking potential State secrets involved in national security cases once they leave the city. This is conspicuously contrary to the very purpose of Article 63 of the NSL, which stipulates that anyone who handles cases concerning alleged offenses endangering national security shall keep confidential State secrets which they come to learn about in the process of handling such cases, the disclosure of which could endanger the full, accurate and effective enforcement of the NSL.

As with the five interpretations of the Basic Law by the Standing Committee of the National People’s

Congress, the potential first interpretation of the NSL by China’s top legislative body will rectify any misunderstanding of the law, ensuring that its legislative intent is upheld, and its effective implementation is guaranteed.

The court ruling that admits an overseas defense lawyer for Lai emphasized the “contribution” overseas counsel could make in developing local jurisprudence, and the need to take “public perception of fairness” into account. This defies common sense. The British barrister concerned, or any other overseas counsel to be recruited for other national security cases, has no expertise in the NSL or advantage over local barristers. Their involvement violates the principle governing the ad hoc admission of foreign counsels: that the expertise is not available locally, or that no suitable local counsel is available for handling the case.

And it is unusual to suggest that the involvement of foreign barristers will boost “public perception of fairness”, given the fact that Hong Kong ranked high, at 22nd out of 140 countries and jurisdictions worldwide, in the 2022 World Justice Project Rule of Law Index, ahead of many Western democracies. But most importantly, the suggestion that “public perception” shall prevail over the need to ensure the effective enforcement of the NSL, and thus the effective protection of national sovereignty, security and development interests, defies logic.