Here’s the introduction to the piece. The most comprehensive on the issue that we’ve read and would suggest that interested parties make sure they read the entire article
Since its establishment in 1997, Hong Kong’s apex court, the Court of Final Appeal, has demonstrated a strong approach to constitutional review in human rights cases. It has struck down laws and executive acts found to be in violation of protected fundamental rights and freedoms. But in the wake of Hong Kong’s new National Security Law, is that changing?
In HKSAR v. Lai Chee Ying (2021) HKCFA 3, the court ruled it had no jurisdiction to constitutionally review the controversial National Security Law (NSL), which created new national security offenses in Hong Kong punishable by up to life imprisonment, a high-level security committee, new law enforcement bodies, and new police powers including surveillance powers without judicial authorization. The court’s decision meant it could not consider whether any NSL provision was incompatible with Hong Kong’s constitution, known as the Basic Law, or the Hong Kong Bill of Rights (HKBOR), which implements the International Covenant on Civil and Political Rights (ICCPR) and has constitutional status.
The court could have taken several different approaches to the constitutional review of the NSL. It chose an option that, on its face, appeared conservative and weak. But in the current political environment, the court’s approach was a wise strategic decision: It preserved the court’s judicial independence, enabled the continued protection of fundamental rights by common law principles and fended off the risk of executive backlash.
The case concerns Jimmy Lai Chee Ying, a well-known media tycoon and supporter of pro-democracy causes in Hong Kong, who has been charged with fraud and a separate offense of collusion under the NSL. In Hong Kong, all cases proceed from the magistrates’ courts, and prosecutors decide whether serious ones transfer up for trial in either the District Court (before a single judge) or High Court (before a judge and jury; or in NSL cases, if certified by Hong Kong’s secretary for justice, before three judges). When a person is charged with an offense other than murder, he or she may apply for bail before the magistrate. If bail is denied, the person can have the decision reviewed on its merits before a single judge of the High Court. There is no further appeal on the merits decision, but questions of law may be considered by the apex court. A person denied bail can apply again if there has been a change in circumstances.
Though he was denied bail in the magistrates’ court, Lai successfully reviewed the magistrate’s decision and obtained bail in the High Court—but on highly restrictive terms including house arrest, strict conditions not to communicate with the media, a HK$10 million cash deposit and three cash sureties in the amount of HK$100,000. The prosecution appealed the bail decision to the Court of Final Appeal, where leave was only granted on the interpretation question concerning the NSL’s bail clause. This was the first time the court considered not only the NSL but also a point of law concerning bail.
Article 42(2) of the NSL provides that “[n]o bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” This bail clause is at odds with the right to bail in Article 5(3) of the HKBOR, which provides that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial ….” The HKBOR is set out in Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383), which has constitutional force by virtue of Article 39 of the Basic Law.
If the bail clause appeared in local Hong Kong legislation, a Hong Kong court could review the clause for compatibility by examining whether it derogated from the protected constitutional right and, if so, whether the government could justify the derogation with reference to the doctrines of prescribed by law, legitimate aim, rational connection, necessity and reasonable balance. If justification were lacking, the court would consider if it were possible to interpret the clause remedially—that is, read it consistently with the imperatives of the protected right. If not, the court would declare the clause unconstitutional, which has the effect of invalidating the law.
But in constitutionally reviewing a clause in a national law, the Court of Final Appeal was on new terrain. According to Article 58 of the Constitution of the People’s Republic of China 1982, the National People’s Congress (NPC) and the Standing Committee of the National People’s Congress (NPCSC) exercise the legislative power of the state. Laws adopted by the NPC or NPCSC are regarded as national laws, whereas local laws include legislation enacted by Hong Kong’s Legislative Council and the common law applicable in Hong Kong. The Basic Law was adopted by the NPC on April 4, 1990, and came into effect on July 1, 1997. It is a national law and regarded as Hong Kong’s constitution. While courts may interpret the Basic Law, the final power of interpretation lies with the NPCSC, according to Article 158 of the Constitution. That article requires the Court of Final Appeal to refer questions of Basic Law interpretation to the NPCSC if the relevant provision to be interpreted concerns the affairs of the central government. From its earliest days, the Court of Final Appeal recognized a jurisdiction to review local laws for compatibility with the constitutional requirements of the Basic Law. But controversy ensued each time the NPCSC interpreted the Basic Law: Binding legislative, rather than judicial, interpretations of the constitution raise serious questions for the separation of powers.
Other than the Basic Law, few national laws apply directly in Hong Kong—a reflection of the high degree of autonomy Hong Kong enjoys under the “one country, two systems” model. For this reason, Hong Kong courts have not had to consider conflicts between two national laws applicable to Hong Kong.
The NSL is a national law adopted by the NPCSC on June 30, 2020, and applied to Hong Kong (in accordance with Article 18 and Annex III of the Basic Law) on the same day. It is the first national law with serious criminal offenses and far-reaching police powers to be applied locally and directly. While other national laws applied to Hong Kong have had criminal offenses, such as the national anthem law, these were implemented by local legislation and passed by the Hong Kong Legislative Council.
In deciding the Jimmy Lai case, the Court of Final Appeal had to determine if it had jurisdiction to adjudge the compatibility of provisions in two national laws applying to Hong Kong. And if the provisions were incompatible, the court also had to decide whether to remedially interpret the provision to fix the incompatibility or to declare one or the other law invalid. This was a question of first impression for the court—but statements made in its very first constitutional case in 1999 bore on the issue.
In Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4, the applicants were Chinese nationals born on the mainland, whose parents (or parent) had Hong Kong permanent residency. By virtue of the third category of Article 24(2) of the Basic Law, these applicants were also Hong Kong permanent residents because they were “[p]ersons of Chinese nationality born outside Hong Kong of those residents” with permanent residency due to either of the first two categories. However, a local immigration law denied them the recognition of this status—and the concomitant right of abode in Hong Kong—because they had yet to receive a one-way permit issued by a mainland office. The Court of Final Appeal ruled that for Hong Kong immigration officials to require such a one-way permit before recognizing a person’s permanent residency status was unconstitutional.
Though the court did not have to review any national law other than the Basic Law to reach its decision, it made the following controversial statement in outlining its “constitutional jurisdiction”:
What has been controversial is the jurisdiction of the courts of the Region to examine whether any legislative acts of the National People’s Congress or its Standing Committee … are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent. In our view, the courts of the Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally. …
The jurisdiction to enforce and interpret the Basic Law necessarily entails the jurisdiction stated above over acts of the National People’s Congress and its Standing Committee to ensure their consistency with the Basic Law. (emphasis added)
Chinese officials and scholars criticized the judgment for purporting to assert judicial authority over the acts of the national law-making bodies in Beijing. The ensuing public debate prompted the Court to make the following clarification a month later in Ng Ka Ling v. Director of Immigration (No 2) (1999) 2 HKCFAR 141:
More at
https://www.lawfareblog.com/hong-kongs-highest-court-reviews-national-security-law-carefully
