Maintaining Institutional Strength: The Court, the Act of State and the Rule of Law

Abstract

Protection of national security and respect for personal liberty and the rule of law are not always on speaking terms. In the Hong Kong context, the conflicts between them are exacerbated by the diametrically opposing social and political values between Hong Kong and China. While an enlightened legislature and vibrant civil society are important in maintaining balance between rights and security in devising the legislative framework and monitoring its implementation, the courts’ role is crucial for they are the ultimate safeguard for human rights and the rule of law in the enforcement of national security legislation. This role is of particular importance in the sensitive area of national security which, in the Hong Kong context, refers to the security interest of the sovereign. The Hong Kong courts have to balance legitimate national interests and over-zealous intervention by the Sovereign on the one hand and the integrity of the common law system and fundamental liberty on the other. This role may be seriously hampered by the vague concept of act of state under the Basic Law which restricts the jurisdiction of the courts. Unfortunately, the concept of act of state is equally elusive under the common law. The problem is further exacerbated by the power of final interpretation of the Basic Law being vested in a political organ of Mainland China, the inherently secret nature of national security, and the weak adherence to procedural and evidential safeguards in the Mainland legal system. This chapter will address the jurisdictional limits on the courts in handling national security matters, arguing for a narrow doctrine of act of state, fine-tuning the special advocate procedure, and strengthening the independence of the judiciary and the prosecuting authority.