The Chief Executive in Council today approved enactment of the Safeguarding National Security (Procedural Matters) Regulation (Procedural Matters Regulation) under section 110 of the Safeguarding National Security Ordinance (SNSO).
The Procedural Matters Regulation was also published in the Government Gazette today and came into effect immediately.
The subsidiary legislation was enacted to clarify the classification mechanism for “other offences endangering national security under the law of the HKSAR”, as specified under the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL) and the SNSO. The objective is to reflect the legislative intent of the HKNSL and the SNSO, and to better carry into effect the relevant provisions of both.
In a statement, the Hong Kong SAR Government said it continuously reviews the city’s current legal system and enforcement mechanisms, with a view to fulfilling its constitutional responsibility in relation to safeguarding national security. Where the need for improvement or clarification is needed, it added, legislative proposals will be introduced in a timely manner.
The statement added that, with reference to the legislative intent of the HKNSL, section 7 of the SNSO and relevant Court of Final Appeal case law define “offences endangering national security” as including: offences under the HKNSL, the Implementation Rules for Article 43 of the People’s Republic of China on Safeguarding National Security in the Hong Kong SAR, and the SNSO itself; as well as other offences under Hong Kong law, as referenced in section 7(d) of the SNSO, where the conduct in a particular case is, by its nature, considered to endanger national security.
In this connection, the Hong Kong SAR Government considered it necessary to clarify the classification mechanism under the HKNSL and SNSO for “other offences endangering national security under the law of the HKSAR” by way of subsidiary legislation, in order to better carry into effect section 7(d) of the SNSO and the provisions applicable to offences endangering national security in the HKNSL, the SNSO and other laws.
The Procedural Matters Regulation states that if the Chief Executive issues a certificate under Article 47 of the HKNSL or section 115 of the SNSO to certify that an act in a criminal case involves national security, then the case will be treated as one involving an offence endangering national security, as mentioned in Article 41 of the HKNSL and section 7(d) of the SNSO.
The Hong Kong SAR Government highlighted that the relevant provisions on certificates issued by the Chief Executive are entirely consistent with common law principles.
It noted that courts in common law jurisdictions including Hong Kong and the United Kingdom are all of the view that executive authorities are in a better position than the courts to make appropriate assessments and judgements on matters of national security. As such, judicial authorities defer to the assessments and judgements of executive authorities in such instances.
The Hong Kong SAR Government also pointed out that the mechanism for the Chief Executive to issue a certificate under Article 47 of the HKNSL or section 115 of the SNSO, and the provisions applicable to offences endangering national security in laws such as the HKNSL and the SNSO, are all existing provisions that have been operating effectively.
It stressed that the Procedural Matters Regulation does not alter those provisions, the scope of application of the HKNSL and SNSO, or the definition of “offence endangering national security”. The regulation also does not create any new offence, penalty or enforcement power.
The statement emphasised that the enactment of the Procedural Matters Regulation refines details of relevant procedural matters and brings greater certainty to the implementation of relevant provisions under the HKNSL, the SNSO and other laws. The Hong Kong SAR Government iterated that relevant provisions under the HKNSL, the SNSO and other laws are only applicable to a small number of criminals who commit offences endangering national security, and will not affect the lives of the general public, or the normal operation of organisations and institutions.
Law-abiding individuals, organisations and institutions will therefore by no means be affected by the Procedural Matters Regulation, it said.
