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The ouster clause in the Hong Kong national security law: its effectiveness in the common law and its implications for the rule of law

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Abstract

Article 14(2) of the Hong Kong National Security Law contains this ouster clause: ‘…decisions made by the Committee [for Safeguarding National Security of the Hong Kong Special Administrative Region] shall not be amenable to judicial review’. Does this make the National Security Committee its own legal island, wholly exempt from judicial oversight of any kind? Not necessarily. This article argues that it may not be as effective as it appears to be in preventing the courts from reviewing the National Security Committee’s decisions. First, in the absence of the clearest and most explicit words, the Hong Kong courts can still construe the ouster clause, in light of the common law construction approach, as only baring judicial review of a valid and lawful decision made by the Committee. This means the Hong Kong courts can still review some decisions. Second, the Hong Kong courts can also justify judicial review by referring to the rule of law, a characteristic feature of the common law in Hong Kong. The rule of law requires that no form of ouster clause, however clear and explicit, could exclude from the supervision of the courts a decision that negates a Hong Kong resident’s right of access to justice.

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Notes

  1. The Basic Law is commonly referred to as the ‘mini-constitution of Hong Kong’, see Gittings [10], p. 48. The Hong Kong Court of Final Appeal in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 even described the Basic Law as ‘the constitution of the Hong Kong Special Administrative Region upon its establishment on 1 July 1997 when China resumed the exercise of sovereignty over Hong Kong’. Article 23 of this mini-constitution imposes an obligation on the Hong Kong government to ‘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’.

  2. The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.

  3. Tsoi and Lam [23].

  4. The Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security (adopted at the Third Session of the Thirteenth National People’s Congress on 28 May 2020).

  5. Article 57 of the Constitution of the People’s Republic of China provides that ‘[t]he National People’s Congress of the People’s Republic of China is the highest state organ of power. Its permanent organ is the National People’s Congress Standing Committee’. Under ‘one country, two systems’, the acts of the NPC/Standing Committee are not subject to judicial review in Hong Kong. The supremacy of the NPC/Standing Committee has been fully acknowledged by the Hong Kong courts in the cases such as Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 and Leung Lai Kwok Yvonne v The Chief Secretary for Administration (HCAL 31/2015, unreported, 5 June 2015). Accordingly, as an enactment of the Standing Committee, the constitutionality of the HK National Security Law per se cannot be legally challenged in Hong Kong. This view gained further support from the ruling of the Hong Kong Court of Final Appeal in HKSAR v Lai Chee Ying (FACC 1/2021, unreported, 9 February 2021), in which the Court held ‘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.).

  6. Article 18 and Annex III of the Basic Law.

  7. Article 12 of the HK National Security Law.

  8. Article 14(2) of the HK National Security Law stipulates that ‘[n]o institution, organization or individual in the Region shall interfere with the work of the [NSL] Committee. Information relating to the work of the [NSL] Committee shall not be subject to disclosure. Decisions made by the [NSL] Committee shall not be amenable to judicial review’.

  9. For instance, Cora Chan from the Faculty of Law, University of Hong Kong, see Cheng [4].

  10. Article 13(1) of the HK National Security Law.

  11. Lau [12].

  12. Article 35 of the Basic Law provides, inter alia, that Hong Kong residents shall have the right to access to the courts and institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

  13. Article 8 provides that ‘[t]he laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region’ and Article 18(1) states that ‘[t]he laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region’.

  14. Article 84 stipulates that ‘[t]he courts of the Hong Kong Special Administrative Region shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in Article 18 of this Law and may refer to precedents of other common law jurisdictions’.

  15. A Solicitor v The Law Society of Hong Kong (2008) 11 HKCFAR 117, paras 9–17.

  16. Statement of the Hong Kong Bar Association [19]. Human Rights in China, a New York-based international non-governmental organization, had also raised similar concerns, see Human Rights in China [11].

  17. (HCAL 1601/2020, unreported, 21 August 2020), para 49.

  18. (2001) 4 HKCFAR 211, at p. 221G-H.

  19. Article 1 of the HK National Security Law.

  20. See Young [27].

  21. (HCAL 1601/2020, unreported, 21 August 2020), p. 21, footnote 21.

  22. In this case, the CFA did not explicitly spell out the words ‘common law approach’ in interpreting Article 42(2) of the HK National Security Law. However, by holding that it is ‘appropriate to examine the matrix in which NSL 42(2) exists, consisting of the applicable human rights and rule of law principles, the rules regarding bail under HKSAR law and the provisions of the NSL read as a coherent whole, with a view to ascertaining how NSL 42(2) is intended to operate in that context’ (Emphasis added), it is in effect applying such an approach to this article, see HKSAR v Lai Chee Ying (FACC 1/2021, unreported, 9 February 2021), para 45.

  23. [1969] 2 AC 147.

  24. Ibid., [151].

  25. Ibid., [152].

  26. Ibid., [169].

  27. Ibid., [170].

  28. Ibid.

  29. Fordham [9], p. 87, See also Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, [286], in which Viscount Simonds stated that ‘the subject’s recourse to Her Majesty’s courts for the determination of his rights’ could be capable of being ‘excluded … by clear words’; R v Nat Bell Liquors Ltd [1922] 2 AC 128, [162], in which Lord Sumner said that legislation limiting the jurisdiction by way of certiorari would only be allowed if ‘explicit language is used for that purpose’.

  30. Anisminic (n 23 above), [171].

  31. Ibid., [170].

  32. Lowenthal [13].

  33. R v Lord President of the Privy Council, Ex parte Page [1993] AC 682, p. 701F; In In re Racal Communications Ltd [1981] AC 374, p. 383 B-D, Lord Diplock acknowledged the true significance of the Anisminic case, observing that as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not had for practical purposes been abolished; also see Barnett [1], p. 586.

  34. Anisminic (n 23 above), [174].

  35. Wade and Forsyth [24], p. 614.

  36. Anisminic (n 23 above), [211]-[212].

  37. Ibid., [148].

  38. Metzer [15].

  39. Edlin [5], p. 78.

  40. See R v Ministry of Defence, ex p Smith [1996] QB 517, [556].

  41. Parpworth [17], p. 268.

  42. Anisminic (n 23 above), [208].

  43. Edlin [5], p. 77.

  44. Edlin [5], p. 75.

  45. Tomlinson [21], p. 7.

  46. [1980] AC 718.

  47. Ibid., [719].

  48. Ibid., [720].

  49. Ibid., [730]. In this case, Lord Diplock, in giving the judgment of the Privy Council stated that ‘[i]t is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision-making authority, under this Act, the Minister, had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not a ‘decision’ under the Act. The Supreme Court, in the exercise of its supervisory jurisdiction over inferior tribunals, which include executive authorities exercising quasi-judicial powers, may, in appropriate proceedings, either set it aside or declare it to be a nullity: Anisminic Ltd v Foreign Compensation Commission (No 2) [1969] 2 AC 147, [1969] 1 All ER 208. …Their Lordships, in agreement with all the Judges in the Court below, would therefore conclude that the ouster clause in s.16 of The Bahamas Nationality Act 1973 does not prevent the court from enquiring into the validity of the Minister’s decision on the ground that it was made without jurisdiction and is ultra vires.’ (Emphasis added.).

  50. [1998] 1 WLR 763.

  51. Ibid., [772].

  52. Elliott [6], p. 105.

  53. [2019] UKSC 22.

  54. Scott [20], p. 104.

  55. R(Privacy International) (n 53 above), [491] and para 108.

  56. Ibid., para 109.

  57. Ibid., para 110.

  58. [2011] QB 120, para 31.

  59. R(Privacy International) (n 53 above), para 110.

  60. Ong [16], p. 46.

  61. Wilberg [25].

  62. R(Privacy International) (n 53 above), para 144.

  63. R (Cart) v Upper Tribunal (Public Law Project intervening) [2011] QB120, para 39.

  64. R(Privacy International) (n 53 above), para 122.

  65. This was the view tentatively expressed in an obiter dictum of Lord Steyn in R (Jackson) v Attorney General [2006] 1 AC 262, para 102, and less tentatively by Lord Hope of Craighead in his obiter, paras 104–108, in the same case.

  66. Elliott and Young [7], p. 496,Wilberg [25].

  67. Section 19(3) provides that ‘[n]o court shall have jurisdiction to hear any application for relief by or on behalf of a person whose lease has been terminated under subsection (1) in connection with such termination’ while section 20(4) provides that ‘[t]he decision of the tribunal shall be final’.

  68. [1989] 2 HKC 394.

  69. (HCAL 155/1999, unreported, 30 May 2000).

  70. [2000] 2 HKLRD 764.

  71. Section 64(3) provides that ‘[t]he conferring by any Ordinance of a right of appeal or objection to the Chief Executive in Council shall not prevent any person from applying to the High Court for an order of mandamus, certiorari, prohibition, injunction or any other order, instead of appealing or making an objection to the Chief Executive in Council, where an application for such an order would lie, but no proceedings by way of mandamus, certiorari, prohibition, injunction or other order shall be taken against the Chief Executive in Council in respect of any such appeal or objection to the Chief Executive in Council or any proceedings connected therewith’.

  72. [2001] 3 HKLRD 225.

  73. [1989] 2 HKC 394, p. 399 F-I.

  74. Thomson [22], p. 199.

  75. See Chan Yik Tung v The Hong Kong Housing Authority [1989] 2 HKC 394, p. 402 G-H; Jill Spruce v The University of Hong Kong [1991] 2 HKLR 444, p. 452 F–H; Gurung Bhakta Bahadur v Director Of Immigration [2001] 3 HKLRD 225, pp. 234A-241C; and Television Broadcasts Ltd v Communications Authority [2016] 2 HKLRD 41, para 169.

  76. Thai Muoi v The Hong Kong Housing Authority (HCAL 155/1999, unreported, 30 May 2000), para 16.

  77. [2000] 2 HKLRD 764, pp. 770A and 771 D-F.

  78. [2012] 1 AC 663, para 111. This view is also agreed by Lord Carnwath in R(Privacy International) (n 48 above), para 74.

  79. Woolf H et al. [26], paras 4–003 and 4–052.

  80. Woolf H et al. [26], para 4–054.

  81. Woolf H et al. [26], para 4–050.

  82. Thomson [22], p. 89.

  83. (2013) 16 HKCFAR 280, para 77. In this case, the Court held that ‘the foundation of judicial review [in Hong Kong] is the rule of law. The rule of law as a foundation has the advantage that it extends judicial review to the exercise of non-statutory powers, including prerogative and common law powers, and it is capable of extending to administrative powers of non-government agencies, these being powers the exercise of which would not necessarily have attracted judicial review on the statutory ultra vires theory’. (Emphasis added.).

  84. Wade and Forsyth [24], p. 614.

  85. [1957] 1 Q.B. 574, p. 586.

  86. Thomson [22], p. 92.

  87. Thomson [22], p. 92.

  88. R(Privacy International) (n 53 above), para 111.

  89. Anisminic (n 23 above), [170].

  90. R(Privacy International) (n 53 above), para 110.

  91. Lau [12].

  92. See n 5 above.

  93. Article 5 of the HK National Security Law provides that ‘[t]he principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security’.

  94. RTHK [18].

  95. RTHK [18].

  96. McGarry [14], p. 67.

  97. Winnie Lo v HKSAR (2012) 15 HKCFAR 16, para 22; Shiu Wing Steel Ltd v Director of Environmental Protection (No 2) (2006) 9 HKCFAR 478, para 77.

  98. Secretary for Justice v Wong Chi Fung [2019] 2 HKLRD 1236, para 22.

  99. (FACC 1/2021, unreported, 9 February 2021), para 41.

  100. This is exactly the approach taken by the CFA in construing Article 42(2) of the HK National Security Law (the bail clause) in HKSRA v Lai Chee Ying (FACC 1/2021, unreported, 9 February 2021), para 42.

  101. Feng [8].

  102. (FACC 1/2021, unreported, 9 February 2021), para 67.

  103. (CACV 293/2021, unreported, 22 June 2021), para 56.

  104. Chan [2].

  105. The Global Times is an English-language Chinese newspaper under the auspices of the Chinese Communist Party’s flagship People’s Daily newspaper.

  106. Chen & Wang [3].

  107. Chan [2], p. 13.

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Funding

This research is funded by the Ministry of Education of the People’s Republic of China under The Youth Program of Humanities and Social Sciences Foundation (No.: 20YJCGAT002) and The Major Project of Humanities and Social Sciences Foundation (No.: 16JJDGAT005) respectively.

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  1. School of Humanities and Social Science, The Chinese University of Hong Kong, Shenzhen (CUHK-Shenzhen), Shenzhen, People’s Republic of China

    Hingchau Lam

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Lam, H. The ouster clause in the Hong Kong national security law: its effectiveness in the common law and its implications for the rule of law. Crime Law Soc Change 76, 543–561 (2021). https://doi.org/10.1007/s10611-021-09979-6

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