Friday, March 26, 2021

Simon Young on Constitutional Review of Hong Kong's National Security Law (LAWFARE)

Published on 4 March 2021
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... Click here to read the full text. 


  1. It's also worth noting that you can preserve judicial authority
    by reference to the legislation itself. Articles 4 and 5
    incorporate the human rights protections of the Basic Law,
    allowing the courts to undertake judicial interpretation without
    challenging the legislative authority of the NPCSC.

    One thing that's remarkable about the NSL is that in most
    UK-derived national security legislation, the legislation simply
    grants powers to the executive. This was not done in this
    particular situation because in the case of Hong Kong, the local
    executive does not want to make these sorts of decisions, and
    neither does the executive (i.e. the State Council) at the
    national level.

  2. It's worth noting that a lot of the previous research on NPCSC interpretation was intended to limit the power of interpretation on the theory that limiting NPCSC's power of interpretation would limit the ability of the central government to intervene in Hong Kong affairs. One problem with this approach is that it didn't think too clearly on *why* the central government has these limits, and I suspect that people made the mistake of overestimating the role of external forces (i.e. international public opinion) on limiting Beijing rather than on internal forces (i.e. the limits of legislative and judicial power in the Mainland).

    Given that we are in a new world, it will not do to think of the Mainland as a black box.