Denial of bail to Jimmy Lai marks a ‘legal watershed’ as Court of Final Appeal confirms it cannot consider constitutional challenges to the NSL

On 9 February 2021, the Court of Final Appeal rejected Jimmy Lai’s application for bail. He is held in custody, awaiting a National Security Law charge.

The court judgment stated that it was outside of the jurisdiction of the Court of Final Appeal to assess the National Security Law’s compliance with the human rights safeguards laid out in the Basic Law or the International Covenant on Civil and Political Rights.

The court judgment states that:

‘in the light of the Court of Final Appeal’s decision in Ng Ka Ling v Director of Immigration (No.2) (1999) 2 HKCFAR 141, 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 International Covenant on Civil and Political Rights as applied to Hong Kong.’

The court states that the precedent set by the 1999 Ng Ka Ling v Director of Immigration case referred to above is that the legislative acts of the National People’s Congress (NPC) and the Standing Committee of the National People’s Congress (NPCSC) are not subject to judicial review for their constitutionality.

Essentially, the Court of Final Appeal affirms in the judgment that where there are constitutional conflicts between the National Security Law and human rights guarantees in the Basic Law, the National Security Law supersedes the Basic Law and the Hong Kong Bill of Rights Ordinance.

The precedent set by this judgment is significant. It signals that the courts will not allow human rights-based challenges to the new legislation. This thereby consolidates the new constitutional order in Hong Kong. The NPC can freely legislate without regard for the Basic Law. ‘National security’, as vaguely defined in the National Security Law, overrides constitutionally protected rights.

This judgment raises questions for international judges on the Court of Final Appeal. With human rights-based objections to the National Security Law effectively outlawed, are foreign non-permanent judges adding a veneer of legitimacy to a broken system? The denial of bail to Jimmy Lai marks a legal watershed for Hong Kong. It may be time for the international jurists engaged with the city’s judiciary to examine their conscience.

Johnny Patterson is Policy Director of Hong Kong Watch