Published: 22:04, January 1, 2023 | Updated: 09:27, January 4, 2023
Why is judicial independence unaffected by NPCSC interpretation?
By Ho Lok-sang

The NPCSC’s interpretation of the National Security Law for Hong Kong (NSL) will not jeopardize the Hong Kong Special Administrative Region’s judicial independence and should not affect Hong Kong’s rule of law. More importantly, it does not have any adverse effect on Hong Kong people’s much valued protection of human rights.   

Wikipedia is a popular source of information. It correctly states that human rights protection is enshrined in the Basic Law of Hong Kong and its Bill of Rights Ordinance and that by virtue of the Bill of Rights Ordinance and Article 39 of the Basic Law, the International Covenant on Civil and Political Rights is put into effect in Hong Kong. However, the entry in Wikipedia also adds that “This does not apply to national legislation that applies to Hong Kong, such as the National Security Law, even if it is inconsistent with the Bills of Rights Ordinance, ICCPR, or the Basic Law.” This statement is unfortunately somewhat misleading. 

In practice it would be highly unlikely that the NSL would clash with the spirit of the Bill of Rights Ordinance. The Bill of Rights Ordinance effectively protects the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. 

I have pointed out multiple times in this column that while people should enjoy equal political rights as well as social and political rights, equal political rights do not necessarily mean that all countries need to have a multiparty system in order to be democratic. The People’s Republic of China has a one-party system, but it does respect people’s equal political rights. Although the Communist Party of China governs over China, it is a pragmatic party that subscribes to the principle that the best policy is that which serves the people best. On the Chinese mainland, government officials are held accountable, often even more so than in multiparty systems. People from all walks of life can reach the top levels in the government if they demonstrate the commitment and competence to serve the people. The fact that the “Three Represents” as proposed by the late State leader Jiang Zemin has been written into China’s Constitution shows that CPC members join the Party only in order to serve the people. 

Although the CPC has a strict internal governance system and requires party members to unite under a unitary leadership, it does value and welcome different views from both think tanks and the public. The CPC routinely conducts consultation exercises in order to fine-tune its policies. In principle, anyone who has great ideas is welcome to join the government regardless of background, but competition to join the Party and the government is keen. China’s experience shows that this system has served the people exceedingly well. That is why I call China’s political system an important soft infrastructure that is important for China to continue to prosper.  

Exactly because China’s political system is working so well, there is an imperative to protect it. Some people often say that they love China but not the Party. But why? Although the CPC being run by people can make mistakes, it has been “reinventing itself” and is single-mindedly pursuing the great rejuvenation of the Chinese nation. Where is the proof that a multiparty system would serve China better? As a matter of fact, under a multiparty system, it is highly likely that people will seek to further their private interests politically, often at the expense of the country’s long-term interest, leading to the neglect of key public infrastructure and sustainable development, as is often the case in the US. Protecting the political system is therefore a matter of great importance to all Chinese. The experience that Hong Kong went through in the last decade shows that there are people who want to destabilize China through destabilizing Hong Kong. This is why Hong Kong needs the National Security Law. 

In a multiparty system, for the ruling party to prevent political competitors from competing or to hinder supporters of political competitors from voting does constitute a violation of human rights. But protecting China’s political system is not unfair competition under a multiparty system. Beijing agreed to allow Hong Kong to elect the chief executive through universal suffrage under Article 45 of the Basic Law. But this was conditional on the electoral system not jeopardizing China’s territorial integrity or China’s political system, which is achieved through the Nominating Committee process, which is now fortified by the NSL.   

The NPCSC interpretation of the NSL clarifies that if an overseas lawyer who does not have full qualifications to practice law in Hong Kong is to represent a defendant, the courts must first secure approval from the chief executive. If the Hong Kong courts have not obtained such an approval, the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall assess and decide on the matter in accordance with its responsibilities under Article 14 of the NSL. The defendant, of course, can still hire fully qualified local lawyers to defend his case. His legal rights are therefore fully protected. 

National security of course is a very sensitive and very important issue. It is imperative that no ambiguity should arise in any standards and procedures. With increased clarity, the rule of law is better preserved.

The author is the director of the Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University.

The views do not necessarily reflect those of China Daily.