The Hong Kong government has proposed allowing the chief executive to certify any criminal act as a national security case, in a legal update that would be binding on the courts. The National Security Exhibition Gallery in the Museum of History in Hong Kong, on August 8, 2024. File photo: Hans Tse/HKFP. New subsidiary legislation under Article 23 – Hong Kong’s homegrown national security ordinance – will empower the city’s leader to certify “other offences endangering national security under the law of the HKSAR,” according to a proposal submitted to the Legislative Council (LegCo) on Monday by the Security Bureau and the Department of Justice.
The government proposed that the subsidiary legislation would be enacted through a “negative vetting” procedure, allowing it to be gazetted before being tabled at LegCo for scrutiny. It cited a “complicated geopolitical landscape” for the update.
The “legislative intent” of the Beijing-imposed national security law, which came into effect on June 30, 2020, is that offences endangering national security include not only the four types of offences under the Beijing-imposed national security law but also “other offences endangering national security under the law of the HKSAR,” the government’s proposal said.
The chief executive is already empowered to issue certificates to decide whether an act involves national security, but the new subsidiary legislation aims to “bring greater certainty” to the courts. There will no longer be room to debate whether an ordinary crime could face national security procedures when a certificate is issued. Plus, later offences connected to an act classified as a national security offence would also face national security procedures, under the new plan. Hong Kong’s Legislative Council. File photo: Kyle Lam/HKFP. “The subsidiary legislation does not involve the creation of any new criminal offence, penalty or enforcement power,” the document said.
‘Any act’ can be reclassified Under the proposal, the chief executive will be granted the power to declare that any act involved in a criminal offence case concerns national security. The leader may then issue a certificate: “[T]hen the case is a case concerning [an] offence endangering national security” under the Beijing-imposed national security law or Article 23,” the proposal says. “If a person is charged with any offence endangering national security, and is charged with or convicted of any alternative offence in respect of the same act in the same case, such alternative offence is also an offence endangering national security.”
Once a case, or an offence, is certified as endangering national security, the procedures stipulated in Article 23 or the national security law for handling such cases will be applicable. The national security law allows handpicked judges and closed-door hearings for national security cases, trials without juries, and a higher bar for bail.
The Panel on Security and the Panel on Administration of Justice and Legal Services will hold a joint meeting later on Monday to discuss the proposed subsidiary legislation.
Ming Pao reported on Sunday that some lawmakers were notified that such a meeting would be held the following day.