Swati Jhaveri: Administrative Law – A Modest Guardian of the Rule of Law on Questions of National Security in Hong Kong

At a recent conference organised by Cora Chan (HKU) and Fiona De Londras (Birmingham) and hosted by the Faculty of Law of the University of Hong Kong, participants discussed the possible ways in which the legal and political institutions of Hong Kong could safeguard the rule of law following the enactment of national security legislation under Article 23 of the Basic Law:

“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”

The need to balance the state’s interest in protecting national security against broader rule of law concerns is one faced by many jurisdictions. And in striking this balance, the courts can and do have a role to play.  The size of the courts’ role tends to be resolved in most systems by balancing a fairly similar set of concerns relating to, inter alia, the need to adequately protect the rights of individuals, the need for (external / judicial) checks and balances, the pursuit of sound and transparent decision-making against the bounds of the courts’ jurisdiction given their limited democratic credentials and institutional expertise.

However, any discussion of these issues in Hong Kong needs to factor in three further considerations. First, there is a lack of clarity over the division of the powers of interpretation under Article 158 of the Basic Law between the Hong Kong courts and the Standing Committee of the National People’s Congress of the People’s Republic of China (NPCSC):

“The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress…The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region…The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress through the Court of Final Appeal of the Region.”

These issues, without clarification, will manifest in significant ways in the course of judicial review proceedings in Hong Kong where the courts may be called on to interpret Article 23 of the Basic Law.

Secondly, Article 23 is fairly unique in imposing a constitutional duty on the government in Hong Kong to implement some form of national security law.  Other common law jurisdictions typically ‘permit’ the government and legislature to act in furtherance of national security.  This may impact the way the courts strike a balance between public and individual interests in the specific disputes that come before them.

Finally, Article 23 envisages the enactment of laws that relate mostly to the sedition family of offences (versus e.g. terrorism) and, more importantly, laws that protect the Central People’s Government of the People’s Republic of China (versus a concern with local government in Hong Kong). The definition of these various offences, given their location in national legislation in Hong Kong but with the protection of the central government in mind, will be a complex legislative drafting exercise.  Hong Kong, as a common law jurisdiction, may look to the civil laws of China in considering the nature of the offences to be introduced.  This could raise complex questions for the courts in Hong Kong when interpreting the legislation.

The possibility (and scope) of any role for the local courts and the common law in striking a balance between national security and rule of law concerns is, therefore, likely to be a constitutionally and politically complex one.  In this context, the courts may need to relocate their sphere of influence to outside the Basic Law.  They may need to consider other ways in which they can maintain a role as a check and balance.  Here, the court’s role in reviewing the actions of the executive carried out pursuant to national security legislation using administrative law grounds of judicial review (procedural fairness, illegality and irrationality) may be a more effective site for exerting a common law influence in the balancing of national security interests against the rule of law.  These are areas where the courts in Hong Kong have already demonstrated a willingness to engage with and strike a balance between the rule of law and public order concerns in a way that resonates with debates that happen across the common law world.

Ultimately, controlling the scope and operation of national security legislation will need to be a multi-event and multi-actor effort: starting upstream and ex ante through legislative debates on the scope of the legislation to downstream efforts in the setup and staffing of any enforcement bodies established under the national security legislation; and in the effective training of police and law enforcement authorities in relation to the implementation of the national security legislation.  The role of administrative law will, therefore, necessarily be a modest one.

Swati Jhaveri is an Assistant Professor in the Faculty of Law at the National University of Singapore. Her areas of research include constitutional and administrative law, and she has published in these areas in Public Law, the Tort Law Review and the International Journal of Constitutional Law.

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