Li Zhiying, the founder of Next Media, is suspected of colluding with foreign forces. The trial will start in September this year. Li Zhiying’s party originally planned to hire British Queen’s Counsel Tim Owen to defend him but was rejected. Li Zhiying recently proposed to the High Court. The review alleged that the National Security Council of Hong Kong pointed out that Tim Owen representing Jimmy Lai would pose a national security risk, and suggested that the Immigration Department refuse to grant entry and exit visas. Jimmy Lai’s party believed that the decision was “overreach” and asked the court to revoke the decision of the National Security Council of Hong Kong.
The director of the Immigration Department, Au Jiahong, submitted an affidavit to the court, disclosing that the National Security Council held a meeting on January 11 and proposed to deny Tim Owen’s entry visa for participating in the Li Zhiying case. Au Jiahong also mentioned in the affidavit that he had obtained “special permission” to relay the decision of the National Security Council of Hong Kong, which should not be made public.
The judicial review case is controversial.
There are two related grounds for general judicial review. One is ultra vires, that is, when a government agency makes a decision, it exceeds the scope of her power, so its decision is invalid; the other is violation of natural justice. ), which means that when the government makes a decision, it does not give sufficient opportunities for affected stakeholders to appeal and defend themselves.
Article 14 of the “Hong Kong National Security Law” clearly states that “decisions made by the National Security Committee of the Hong Kong Special Administrative Region are not subject to judicial review.” Therefore, in legal terms, once the Hong Kong court confirms that the relevant government decision comes from the Hong Kong National Security Committee, it should reject it. Related judicial review applications.
There are comments from the Mainland that “every Hong Kong court accepts Jimmy Lai’s application for judicial review, no matter whether the result of the judicial review is upheld or rejected, it is a manifestation of ultra vires and does not conform to the original intention of the “Hong Kong National Security Law.”
Another opposing view is that the Standing Committee of the National People’s Congress included the “National Security Law for Hong Kong Area” in Annex III of the “Basic Law”, allowing Hong Kong to implement the “National Security Law for Hong Kong Area” in the form of common law, which is an extension of “one country, two systems”.
To answer this question, we must start from the most basic constitutional status of Hong Kong. The Hong Kong National Security Law was enacted by the highest state authority and legislative body, and the Standing Committee of the National People’s Congress of the National People’s Congress. It is a law directly enacted by the central government. The Hong Kong court is only a local court and has no authority to challenge the laws formulated by the central government. Of course, the “Hong Kong National Security Law” must be implemented in Hong Kong, and it must be implemented through the Hong Kong courts. The biggest difference between Hong Kong’s common law system and the mainland’s mainland law system is that the common law system attaches great importance to cases, and cases judged by the High Court or higher courts are binding. Through the accumulation of cases, the specific content of the law can be enriched. However, allowing the Hong Kong National Security Law to be implemented within Hong Kong’s current common law system does not mean allowing Hong Kong courts to challenge the central government’s Hong Kong National Security Law, including:
1. The SAR courts cannot conduct a constitutional review of the Hong Kong National Security Law in violation of the Basic Law. The SAR courts do not have such powers. To conduct a constitutional review is in itself ultra vires.
2. The SAR court cannot challenge the decision of the Hong Kong National Security Council, because the Hong Kong National Security Council is an institution directly under the central government, and the SAR court has no right to challenge the decision of the central agency.
3. The SAR court should not accept the judicial review of the decision of the National Security Council of Hong Kong, otherwise the court itself is exceeding its power.
In fact, Li Zhiying may know that he will not win the lawsuit, but still wants to use the court as a stage to promote his political ideas. In view of the fact that the “National Security Law of the Hong Kong Area” has expressly stipulated that the decision of the Hong Kong National Security Committee is not subject to judicial review, the SAR court can only act in accordance with the law. Once it is confirmed that the Hong Kong National Security Committee’s decision is made, the relevant application for judicial review will be “removed” (stick out).
One country, two systems is an unprecedented system. The two systems must keep their respective roles. As a local government under one country, the Hong Kong Special Administrative Region must recognize its own constitutional status. If Hong Kong people act on their own and even challenge the central government, it is an act of ultra vires and ineffective.
