In May, the High Court ruled that the courts have no jurisdiction to review decisions made by the Committee for the Safeguarding of National Security (“NSC”), an all-powerful committee established by Beijing under the National Security Law (“NSL”) and chaired by the Chief Executive.

The case arose from pro-democratic publisher and activist Jimmy Lai’s application to engage UK barrister Tim Owen KC for his upcoming national security trial. Although the courts initially granted Lai’s application, this was effectively overturned by China’s top legislative body which handed down an “interpretation” that banned the engagement of overseas lawyers in national security proceedings unless the Chief Executive approves.

Following the interpretation, the NSC decided that Owen’s representation of Lai would be “contrary to the interests of national security” and ordered the Director of Immigration to refuse any employment application that may be submitted for such representation. Lai challenged the NSC in the High Court, arguing that NSC exceeded its legal authority by making this decision. In refusing Lai’s challenge, the judge held that Article 12 and 14 of the NSL reserved the supervisory power over the NSC exclusively to the Chinese government and that the Hong Kong courts have no jurisdiction over the NSC.

The outcome of the case is not unexpected given the specific language in the NSL that excludes judicial review and the courts’ general posture of deference in national security cases. Nonetheless, in endorsing the NSC’s power to act beyond the reach of the courts, the judgment marks the further erosion of the rule of law and paves the way for the national security apparatus to continue its relentless oppression in Hong Kong.

(This story originally appeared in the May-June 2023 edition of our newsletter).