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:
The Court’s judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court’s judgment question, and the Court accepts that it cannot question, the authority of the National People’s Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein. (emphasis added)
The clarification was not seen as a total capitulation, because the emphasized text appeared to retain some scope for judicial review. The Court of Final Appeal essentially said that it cannot question the acts of the NPC and NPCSC, but only if the act in question is in accordance with the Basic Law—a matter that the court would determine for itself.
The clarification, however, was not enough to avert the constitutional crisis that followed. Concerned the judgment would lead to a significant increase in the number of permanent residents migrating from the mainland, the Hong Kong government sought an NPCSC interpretation to reverse the Court of Final Appeal’s interpretation of Article 24(2). Within five months of the court’s judgment, the NPCSC interpreted the Basic Law and effectively reversed the court’s interpretation, though the results of the case were not affected. Given the general unfamiliarity with legislative interpretations of law under the Chinese system, many people criticized the interpretation as an assault on judicial independence at the time. However, when the court came to consider a related issue of interpretation in October 1999, it accepted that the NPCSC had a free-standing power to interpret the Basic Law in Lau Kong Yung v. Director of Immigration (1999) 2 HKCFAR 300.
The court’s judgment in Ng Ka Ling and the subsequent clarification was academic at the time and was not applied in that case. But the issue was front and center in Lai’s case—and this time, the court could not dodge it.
The question in Lai’s case turned on the distinction made in HKSAR v. Lam Kwong Wai (2006) 9 HKCFAR 574 between remedial interpretation—a more flexible form of interpretation applied as a constitutional remedy—and common law interpretation—a more restricted form of interpretation applying common law principles, typically to ascertain at the outset if a law engages a fundamental right. Counsel for Lai sought a remedial interpretation of Article 42(2), arguing that it should be read compatibly with the HKBOR’s right to bail. But to apply such an interpretation, the court had to review Article 42(2) for consistency with the HKBOR and reject any government justification for derogation. If the court were to order remedial interpretation, it would presuppose it had constitutional jurisdiction to review the NSL.
Following Ng Ka Ling (No 2), the court in Lai’s case had three possible options for dealing with the issue of constitutional jurisdiction. The first position was that of substantive review: The court would decide if the NPCSC acted in accordance with the Basic Law by reviewing whether the NSL was compatible with the Basic Law and the HKBOR. If the law were incompatible, the court would remedially interpret the NSL or strike down the infringing parts of the NSL. The second position can be described as a form of procedural review: The court would decide if the NSL was procedurally adopted in accordance with the Basic Law, while the compatibility of its contents with the Basic Law and the HKBOR could not be questioned. A middle-of-the-road third position was also theoretically possible: The court could determine compatibility without claiming any power to order relief if there were incompatibility. This would be a kind of advisory jurisdiction that did not question the vires of the legislative act, similar to the power of English courts to order a declaration of incompatibility under the Human Rights Act 1998.
The court adopted the second approach, coming to the view that
the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong. (emphasis added)
The legislative acts were in accordance with the Basic Law, the court reasoned, because the NPC’s decision of May 28, 2020, the NPCSC’s adoption of the NSL on June 30, 2020, and the listing of the NSL in Annex III of the Basic Law were all done in accordance with Article 18 of the Basic Law—and counsel for Lai did not suggest otherwise. The making of the NSL was lawful, and its substantive content could not be reviewed against the yardstick of the Basic Law and the HKBOR.
Any of the three positions would have been reasonable for the court to adopt, and all were reconcilable with Ng Ka Ling and its clarification. But each position carried with it different risks and consequences in the current tense political environment in Hong Kong. By choosing the second position, the court took the course with the lowest risk of causing political or legislative interference—and thereby protected its judicial power and authority.
Demonstrating respect for the legislative authority of the NPC and NPCSC would help to ward off an overriding NPCSC interpretation of either the Basic Law or NSL, an undesirable consequence the court dealt with in the aftermath of Ng Ka Ling when the NPCSC interpreted the Basic Law and partially reversed the court’s interpretation. With its independence intact, the court maintained its space to apply principles of common law interpretation to give full effect to Articles 4 and 5 of the NSL, which promise respect for human rights and adherence to the principle of the rule of law. Putting it boldly, the court explained its approach in these terms:
NSL 4 and NSL 5 expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL. They provide the context in which NSL 42(2) must be construed and applied. As far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values. Save insofar as NSL 42(2) constitutes a specific exception thereto, that corpus of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail is intended to have continued effect in NSL cases. (emphasis added)
In a footnote, the court likened a NSL-specific exception to a reservation made by a party to an international human rights treaty, the question being whether the NSL provision “intended to carve out a specific exception from a scheme of rights protection.” A reservation may sound like a state trying to avoid human rights law obligations. However, the important point is that the court was asserting its authority to determine when the NSL imposes a “specific exception” to a right protected in the Basic Law or the HKBOR. This means that whether there is a specific exception and the extent of the exception are questions to be answered by the court. In answering such questions, the court will still have a significant role to play in ensuring the principles and values of fundamental rights temper the state interest in national security cases.
In a previous case, Ubamaka v. Director of Immigration (2012) 15 HKCFAR 743, the court played a similar role in the context of returning someone to a place where that person was at risk of torture or cruel, inhuman, or degrading treatment or punishment—ruling that the immigration reservation to the ICCPR could not have intended to preclude the availability of such absolute and nonderogable rights. Thus, in its sphere of judicial authority, which the court has protected for itself, the court has retained a limited jurisdiction to consider the substantive compatibility of NSL and Basic Law provisions, albeit in an indirect way.
That said, the wording and clear intent of the NSL bail clause made it practically impossible for the court to find anything other than a specific exception. Nonetheless, the court kept the extent of the exception to a minimum and demonstrated its independence in rejecting several of the government’s arguments that would have had a restrictive effect on a defendant’s ability to obtain bail.
Had the court instead attempted a substantive review of the NSL’s compatibility with the Basic Law and the HKBOR, it may well have sparked a constitutional crisis on a scale similar to the one seen in 1999 after Ng Ka Ling. As with the Basic Law, the final power of interpretation of the NSL is vested in the NPCSC according to Article 65. Carrying out substantive review would have been seen as a challenge to the legal authority of the NPC and NPCSC and ultimately could have led to a NPCSC interpretation reversing the Court of Final Appeal. This much is clear from the Ng Ka Ling saga.
But in the current political climate, the danger would have been even greater. The NPCSC could have gone further and stripped the Court of Final Appeal of all constitutional review jurisdiction, even with respect to local laws and executive acts of the Hong Kong government. A decade ago, such an erosion of judicial authority would have been unthinkable. But it seems far more possible now—especially after Beijing’s reaction to a November 2019 decision by the High Court striking down an anti-mask law made under emergency legislation. In response to the judgment, as reported in Xinhuanet, a spokesperson for the Legislative Affairs Commission of the NPCSC stated: “Whether a law of the HKSAR is in conformity with the Basic Law of the HKSAR can only be judged and decided by the NPC Standing Committee, no other organ has the right to judge or decide.” The government took no concrete steps to act on this ominous statement, because it was able to win its case through appellate channels all the way to the Court of Final Appeal in Kwok Wing Hang v. Chief Executive in Council (2020) 23 HKCFAR 518. But an assertiveness toward substantive review by the Court of Final Appeal in Lai’s case would likely have attracted the concerns of the NPCSC again, and the end result might have completely undercut the court’s role as a “constitutional check on the executive and legislative branches of government,” as it described itself in Ng Ka Ling.
The third approach of advisory compatibility review would not have been without its difficulties, either. There are at least three problems. First, this approach would be completely novel and is not provided for in Hong Kong law. For example, there is no provision in Hong Kong law similar to Section 4 of the United Kingdom’s Human Rights Act 1998, which provides that courts may make declarations of incompatibility that do not affect the validity of a provision and are not binding on the parties to a proceeding. There is nothing in Ng Ka Ling to provide a foothold for a lesser constitutional jurisdiction of reviewing for compatibility without the possibility of any relief. Second, even if the jurisdiction were only advisory, the NPCSC could still have found any kind of compatibility review by the Court of Final Appeal to be a challenge to its authority—which could potentially trigger a NPCSC interpretation. As the NPCSC spokesperson said, it is the court’s authority to “judge and decide” conformity to national law that is of concern.
Third, and most significantly from the point of view of human rights protection, reviewing for compatibility would not necessarily preclude the government from successfully justifying any derogation. In Lai Chee Ying, the Court of Final Appeal referenced decisions from the Supreme Court of Canada and the South Africa Constitutional Court that had upheld special bail laws that placed a burden on the person applying for bail. Had the Court of Final Appeal undertaken a full proportionality analysis of the NSL’s bail clause, it may well have found the derogation on the right to bail to be justified. Such a decision would have served as a precedent that erodes the right to bail; it would likely have been relied on in future cases and might even have tempted the government to enact new restrictions on the right to bail in other contexts. Substantive review by the court likewise could have legitimized various NSL provisions through proportionality analysis and created jurisprudence with a knock-on effect that reduces rights protections in other contexts.
Though the court may have taken the approach that creates the lowest risk of interference, its interpretations of the Basic Law and the NSL can still be replaced by those of the NPCSC. Borrowing the words of Sir Anthony Mason—one of the most prominent foreign judges who sat on the Court of Final Appeal from 1997 to 2015—the Court of Final Appeal maintains “the rule of law in the shadow of the giant.” Judging from reports in the Global Times describing the court’s decision as a “landmark move” signaling the Hong Kong “common law system adapting to national security law,” the giant appears to be content for now. And, for now, the court continues its vital role serving as a strong “constitutional check” in NSL cases—and, importantly, in the many varied contexts beyond the NSL.
I thank Jerome Cohen and the Council on Foreign Relations who chaired and hosted the Winston Lord Roundtable, where the ideas for this article were first presented.