The Standing Committee of the National People's Congress interpreted the "Hong Kong National Security Law", further clarified the chief executive's powers in national security affairs, and confirmed that the use of overseas lawyers in national security cases is an issue that should be determined by the chief executive as listed in "Article 47". When processing the application, the Hong Kong court A certificate should be obtained from the Chief Executive.
If the court fails to raise the issue, the National Security Council chaired by the Chief Executive should step in to make judgments and decisions. According to "Article 14" of the National Security Law, it is not subject to judicial review challenges.
How does the "Certificate" mechanism work?
Chen Hongyi, a member of the Basic Law Committee, pointed out that the initiative lies with the courts, but the government has a certain role. As the prosecution, it can raise a certain issue that falls within the scope of "Article 47" and ask the court to consider obtaining a certificate from the Chief Executive.
When interviewed by the former deputy director of the Basic Law Committee, Leung Oi-sze, she pointed out that if the court does not propose, the Department of Justice can directly report to the National Security Council for a decision.
The authorities emphasized that the interpretation of the law is only an interpretation of the original intent of the legislation, and that the relevant mechanisms and powers already existed when the National Security Law was enacted.
However, the government did not understand the use of power in Li Zhiying's court case, and appealed many times until the final trial was lost. The Secretary for Justice Lin Tingguo's latest response stated that according to the interpretation of the law, it must be decided by the National Security Council.
Chen Hongyi pointed out that the greatest possibility is to amend the "Regulations on Legal Practitioners" to stipulate the requirements for overseas lawyers to participate in national security cases, and the revised new regulations will apply to the Li Zhiying case that will be tried in September next year.
Request for "Certificate" is determined by the court Attorney General can make a request
When the courts of the Hong Kong Special Administrative Region encounter issues concerning whether the relevant acts involve national security or whether the relevant evidence materials involve state secrets, they should obtain a certificate issued by the Chief Executive on these issues, and the above-mentioned certificate is binding on the court. .
Article 47 of the Hong Kong National Security Law
Article 47 of the "Hong Kong National Security Law" states that the issues that should be determined by the chief executive include "whether the relevant acts involve national security, or whether the relevant evidence materials involve state secrets."
Chen Hongyi pointed out that according to the mechanism, it is up to the court to decide whether to ask for a "certificate". If the Jimmy Lai case has a mechanism, the chief executive's certificate may list "hiring overseas lawyers without full local practice rights may bring national security risks." , the court will make a judgment after receiving the certificate.
Limited scope of "Certificate" does not affect judicial rights
However, the High Court approved Lai Zhiying's appointment of the imperial court, Tim Owen, without asking for a certificate from the chief executive. Chen Hongyi pointed out that the government also has a role, as the prosecution can make a request, and then the court will consider it.
Chen continued to point out that the "certificate" only determines whether it is involved in national security or state secrets, and does not affect the right to judge: "Article 47 certificates are limited in scope and cannot determine guilt or innocence. For example, determining that "X" is a state secret does not mean that He must be guilty, and ultimately the court will judge him.”
What "determination issues" apply to "Article 47" except foreign lawyers?
After this interpretation, what other issues should be identified under "Article 47"?
National People's Congress Standing Committee member Tan Yaozong pointed out that the chief executive is the ultimate person in charge. Interpreting the law not only solves the problem of overseas lawyers, but also clearly refers to the implementation mechanism, spirit and mechanism of the "National Security Law".
Chen Hongyi pointed out that according to the provisions, the most likely thing that needs to be "determined" is whether certain information and evidence involve state secrets. He also cited whether the "incitement crime" under the "Criminal Offenses Ordinance" is a national security crime. In fact, it can be " "Determination issues" to apply "appointed judges" and higher bail thresholds, although courts have previously embraced the government's view in judgments.
The duties of the National Security Committee of the Hong Kong Special Administrative Region are: (1) to analyze and judge the situation of safeguarding national security in the Hong Kong Special Administrative Region, plan relevant work, and formulate policies for safeguarding national security in the Hong Kong Special Administrative Region; (2) to promote the legal system for safeguarding national security in the Hong Kong Special Administrative Region (3) Coordinating the Hong Kong Special Administrative Region's key tasks and major actions in safeguarding national security.
The work of the National Security Committee of the Hong Kong Special Administrative Region shall not be interfered by any other agency, organization or individual in the Hong Kong Special Administrative Region, and work information shall not be made public.
Decisions made by the National Security Council of the Hong Kong Special Administrative Region are not subject to judicial review.
Article 14 of the Hong Kong National Security Law
How to deal with Li Zhiying's employment certificate?
Lin Dingguo: The National Security Council will hold a meeting to discuss and determine
However, the government has finally lost the case of Jimmy Lai's employment of Yingyu, how will it be handled according to the mechanism?
Lin Dingguo wrote in the evening that the National Security Council will hold a meeting to discuss and make a decision.
According to the content of the interpretation, is the power of "Article 14" used to make a decision that is not challenged by judicial review?
Chen Hongyi pointed out that the government has stated that it will amend the "Legal Practitioners Regulations". Participate again."
Chen Hongyi predicts that the new law will be applied to the Li case in September next year
When asked, since the relevant mechanism has existed since the National Security Law was enacted, is it a mistake for the Department of Justice not to raise it?
Chen Hongyi pointed out that there was a final judgment at that time, and the law could only be interpreted by the central government. If the law is amended in the future, it will not overturn the court's judgment.
Elsie Leung pointed out that "the court did nothing at the beginning", and how to follow up in the future depends on the government's decision. If the chief executive issues a certificate for the trial in the future, the outside world will definitely know, but just like other national security cases, the details may not be made public.
Leung Oi-sze pointed out that the interpretation of the law should be viewed positively, believing that it is implemented entirely in accordance with the "comprehensive governance power" and respects a high degree of autonomy.
The National Security Committee of the Hong Kong Special Administrative Region undertakes the statutory duty of maintaining national security in the Hong Kong Special Administrative Region, and has the right to make judgments and decisions on whether it involves national security issues... It is not subject to judicial review and has enforceable legal effect.
No administrative, legislative or judicial institution, any organization or individual in the Hong Kong Special Administrative Region may interfere with the work of the National Security Committee of the Hong Kong Special Administrative Region, and shall respect and implement the decisions of the National Security Committee of the Hong Kong Special Administrative Region.
NPC Standing Committee Interprets "Article 14"
National People's Congress Interpretation of Law｜Large Association: Relevant power implicates the cornerstone of the rule of law, hoping to use power while taking into account public confidence. Li Zhiying can apply to the Chief Executive for a certificate from the National People's Congress to interpret the law｜Applicable to the Li Zhiying case?
Tang Jiahua said that the National Security Committee will not ignore the National People’s Congress’s interpretation of the law if it does not target individual cases｜If you hire an overseas lawyer in a national security case, you need a certificate from the chief executive, otherwise the National Security Committee should intervene in Li Zhiying’s appointment of the imperial court｜Lin Dingguo: The court did not obtain the certificate of the chief executive Meeting to decide
