Power of Hong Kong’s new national security regulation must be exercised prudently

The recent enactment of the Safeguarding National Security (Procedural Matters) Regulation has generated significant interest and commentary on Hong Kong’s legal landscape.

It is recognised that maintaining national security is of paramount importance and that there is a constitutional responsibility on the Hong Kong Special Administrative Region to do so.

Under the Basic Law, that responsibility falls to a large extent on the city’s chief executive. It is also recognised in many common law jurisdictions that certain matters of national security or foreign relations fall within the expertise and purview of the executive branch. This is because, owing to urgency or secrecy, it is not usually practical for the exercise of such powers to be litigated and decided by the courts.

What has been done is to enact subsidiary local legislation, as permitted by the principal legislation. The regulation seeks to clarify the scope of section 7(d) of the Safeguarding National Security Ordinance (SNSO).

Much attention has focused on section 1(2)(a) of the regulation, which provides that, on the issuance of a certificate by the chief executive, “the case is a case mentioned in Article 41 of the Hong Kong National Security Law, regardless of whether the act was done or the prosecution was brought before, at the time or after the Hong Kong National Security Law came into operation”.

It is appreciated that no substantive criminal offences are being introduced by the regulation, retrospectively or otherwise. However, since the above provision has the effect of applying the SNSO’s procedural mechanism to offences committed before the regulation’s introduction, it is understandable that many in society regard the regulation’s effect as a significant matter to be taken into account when deciding whether to exercise the new powers conferred.