By Tu Haiming

The Hong Kong Judiciary’s dispute over whether an overseas counsel should be allowed to defend media tycoon Jimmy Lai Chee-ying in his national security offense trial has highlighted the imperative of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (the Committee) playing a bigger role in safeguarding national security in the SAR.

The National Security Law (NSL) for Hong Kong, enacted in accordance with China’s Constitution and the Basic Law, prevails over local laws; and therefore should not be enforced under the same judicial reasoning of Hong Kong’s common law system. As the central organ that is bestowed with the required power by the central government to lead, make and coordinate all national security strategies for implementation in Hong Kong, it is natural that the Committee should assume the primary responsibility for safeguarding national security in the city.

That the Committee is superior to the HKSAR’s executive, legislative and judicial organs in terms of the power to enforce national security protection in the HKSAR is underpinned by a robust legal basis. First, from the perspective of State sovereignty, it is the central authorities, rather than the local authorities, that assume the primary responsibility of safeguarding national security.

Second, in exercising the sovereign power, the central authorities can directly exercise the power to safeguard national security or delegate the power to specific bodies. The Committee and the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region, as specified in the NSL, are the two specific agencies that have been delegated to take charge of matters of national security in the HKSAR.

Third, Article 12 of the NSL prescribes the functional capacity of the Committee, which “shall be responsible for affairs relating to and assume primary responsibility for safeguarding national security in the region”. In other words, the Committee is the “primary entity” that is responsible for safeguarding national security in the HKSAR.

Fourth, Article 13 of the NSL states that the chief executive shall be the chairperson of the Committee. This role of the chief executive is in line with Article 13 of the Basic Law, which specifies that the chief executive shall be accountable to the Central People’s Government. Moreover, Article 15 of the NSL stipulates that “the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall have a National Security Adviser, who shall be designated by the Central People’s Government and provide advice on matters relating to the duties and functions of the Committee. The National Security Adviser shall sit in on meetings of the Committee”. The appointment of the director of the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region as an adviser to the Committee reflects the central authorities’ intention for the setup of the Committee. The superior status of the Committee provides a solid foundation for it to fulfill the primary responsibility of safeguarding national security in the HKSAR.

While the HKSAR’s executive, legislative and judicial organs are obliged to safeguard national security, the Committee unquestionably plays a leading role in this regard. Article 14 of the NSL lists the duties and functions of the Committee, which shall be 1) analyzing and assessing developments in relation to safeguarding national security in the HKSAR, making work plans, and formulating policies; 2) advancing the development of the legal system and enforcement mechanisms of the HKSAR for safeguarding national security; and 3) coordinating major work. As Lai’s case has given rise to a crucial question on the legitimacy of foreign counsel’s involvement in national security trials, the Committee should have, in light of its superior power in national security affairs and the NSL’s supremacy over local laws, assessed the issue and come up with the necessary guiding opinions based on which the Hong Kong Judiciary would have made the decision, instead of letting the Department of Justice wrangle with the courts over the dispute according to the legal logic of local laws, which was not the right way. In a nutshell, the Committee has been given the most powerful weapon, or the “silver bullet”, to safeguard national security in the HKSAR on behalf of the central authorities; it is bestowed with a State power that local courts cannot override.

Article 14 of the NSL also stipulates that “no institution, organization or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial review”. The “institution” cited here includes Hong Kong’s executive, legislative and judicial organs, which should in no way interfere with the decision-making process and policy execution of the Committee. Moreover, as no judicial review shall apply on the decisions of the Committee, it implies that no one can file a lawsuit to challenge them. These legal provisions give the Committee the prerogative, or “silver bullet”, to discharge the primary responsibility of safeguarding national security in the HKSAR. The Committee should exercise its prerogative when needed, or else it will be too passive to assert the authority of the NSL.

Immediately after the Hong Kong court endorsed British lawyer Timothy Owen to defend Lai in his upcoming national security trial, the Hong Kong and Macao Affairs Office of the State Council noted in a statement that the Committee assumes the primary responsibility of safeguarding national security in the HKSAR, and that the central authorities fully support the Committee in performing its legally prescribed duties, exercising its statutory powers, and taking necessary measures in accordance with the law to neutralize potential risks and hidden dangers that threaten national security. It serves as a reminder for the Committee to use the “silver bullet” when it needs to. In elucidating the principle of “patriots administering Hong Kong”, Xia Baolong, director of the HKMAO, pointed out that Hong Kong officials should be competent in fully and accurately implementing “one country, two systems” when carrying out their duties, effectively uphold the central authorities’ overall jurisdiction over the HKSAR, and safeguard national security in the HKSAR in accordance with the law. The chief executive is not only the head of the HKSAR government but also the leader of the HKSAR and the chairperson of the Committee. Thus, the Committee under his leadership should proactively take up the primary responsibility of safeguarding national security in the HKSAR.

The author is a Hong Kong member of the National Committee of the Chinese People’s Political Consultative Conference and chairman of the Hong Kong New Era Development Thinktank.

The views do not necessarily reflect those of Bauhinia Magazine.

Source: China Daily