Although the Hong Kong National Security Law (NSL) (2020) and the Safeguarding National Security Ordinance (SNSO) (2024) are operating successfully, there can be no resting on laurels. National security is a work in progress, and arrangements must be kept under ongoing review. If particular areas require clarification or improvement, they must be addressed.
After the NSL was promulgated, a constitutional duty was imposed upon the Hong Kong Special Administrative Region to continuously improve the legal system and enhance the national security enforcement mechanisms in Hong Kong (Art.14). There is, moreover, a related obligation to “refine relevant laws” (Art.7), which can be done in various ways, and this provides a context.
Thus, the SNSO empowers the chief executive in council to make subsidiary legislation (s.110). This may be done for the needs of safeguarding national security and the better implementation of the NSL, the SNSO and the National People’s Congress Standing Committee’s interpretation of the NSL’s Articles 14 and 47 of 2022. (Whereas the Art.14 interpretation states that the Committee for National Security has the authority to decide if national security issues are involved in a case, the Art.47 interpretation stresses the duty of the court to request and obtain a certificate from the chief executive certifying whether an act involves national security, and clarifies its application to the participation of overseas lawyers in national security cases.)
However, the chief executive in council’s power is not untrammeled. Subsidiary legislation, including any made under the SNSO, is subject to a negative vetting process by the Legislative Council. It is open to legislators to amend the subsidiary legislation, although this will only happen for good cause.
On Monday, the HKSAR government briefed the Legislative Council of its intention to make subsidiary legislation under the SNSO (s.110) to define the scope of national security cases. It hopes to achieve this “as soon as possible”, and the reason is clear. Although the SNSO (s.7) provides that offenses endangering national security include those contained in the NSL (and its Implementation Rules), the SNSO and “other offenses endangering national security under the law of the HKSAR”, the public will undoubtedly find it beneficial if the meaning of “other offenses” is clarified. Whenever national security is involved, it is in everybody’s interest for there to be maximum clarity.
As things currently stand, the chief executive is empowered, when the issue arises in a court case, to issue a certificate indicating whether an act involves national security or whether the evidence concerns State secrets (NSL Art.47; SNSO, s.115). However, the intention now is to clarify procedural issues, and ensure certainty in the application of both laws, which will be achieved through a classification mechanism.
As the HKSAR government explained, the current geopolitical situation is complicated and national security risks still exist. Therefore, whenever there is uncertainty in the protective framework, those risks increase. The subsidiary legislation will improve the legal system, eliminate uncertainties and safeguard national security more effectively, which is welcome. It deserves to receive a fair wind in the Legislative Council
The proposed mechanism indicates that once the chief executive has issued the certificate under either the NSL or the SNSO concerning a particular offending act, the case will be categorized as an offense endangering national security. In consequence, the procedural matters applicable in national security cases will be engaged (NSL Art.41). In other words, the procedures currently applicable to national security offenses (including venue and mode of trial and conditions of bail) will be applicable upon certification “to other offenses endangering national security under the law of the HKSAR”. It also means that the offense under investigation, or in respect of which a suspect has been charged or arrested, will be treated as an offense endangering national security under the SNSO (s.7(d), concerning “other offenses”).
The final area for clarification concerns alternative offenses, which are common enough in criminal cases. If a defendant faces an offense endangering national security but is charged with or convicted of an alternative offense in respect of the same act in the same case, the alternative offense will also be treated as an offense endangering national security, which is the purest common sense. The secretary for justice, Paul Lam Ting-kwok, gave as an example a suspect who intended to blow up a police station and could be charged with a terrorist act under the NSL and with an alternative charge of manufacturing a bomb (Crimes Ordinance, s.53). If a guilty verdict was only entered under the second charge, it would be perverse if it were not also to be treated as a national security offense, given that the activity involved in both offenses was basically the same.
Objectively viewed, the subsidiary legislation is clarificatory and uncontroversial. As the secretary for security, Chris Tang Ping-keung, explained, there have previously been disputes at court over whether a particular case involved national security, and “We want to clearly articulate the meaning of the law.” If a case lacks a certificate it cannot be treated as a national security matter and will be processed under the general criminal law.
Once the chief executive has issued a certificate, it cannot, in accordance with common law practice, be challenged in court. As Lam pointed out, a certificate involves highly confidential and sensitive information, and “The Judiciary does not have the ability to determine it when exercising its power.” This echoed Lord Denning, master of the rolls, who, in the Court of Appeal of England and Wales in 1977, explained that the balance between the interests of national security and those of the individual “is not for a court. It is for the Home Secretary. He is the person entrusted by Parliament with the task” (R vs Secretary of State, ex p Hosenball). This proposition was subsequently endorsed by the House of Lords (then the UK’s ultimate court) in 2001, when Lord Hoffmann said “decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive” (Secretary of State for the Home Department vs Rehman).
On Tuesday, the chief executive, John Lee Ka-chiu, emphasized that the subsidiary legislation would bring greater clarity to the administration of justice. He also stressed that the process would often involve “State players”, as well as highly sensitive information. This meant that necessary prudence and appropriate seriousness would be exercised whenever a definition of national security offenses was required, which is exactly what everybody expects.
As officials explained, the subsidiary legislation does not create any new offenses, expand the meaning of “offense endangering national security”, or take the national security laws into any new areas. Rather, it is very much in the nature of a tidying-up exercise. It has no impact on the exercise of independent judicial power, is irrelevant to sentencing and does not affect the position of criminal suspects. In all criminal trials, including those involving national security, it is for the courts alone to determine issues of guilt or innocence, and this principle remains sacrosanct.
Indeed, the human rights and fair trial guarantees of anybody charged with a national security offense are protected not only by the Basic Law and the International Covenant on Civil and Political Rights, but also by the NSL (Art.4) and the SNSO (s.2(a)).
As the HKSAR government explained, the current geopolitical situation is complicated and national security risks still exist. Therefore, whenever there is uncertainty in the protective framework, those risks increase. The subsidiary legislation will improve the legal system, eliminate uncertainties and safeguard national security more effectively, which is welcome. It deserves to receive a fair wind in the Legislative Council.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
