The Hong Kong Legislative Council’s panels on Security, and Administration of Justice and Legal Services (the “Panels”) on Monday proposed a new “subsidiary legislation” under Article 23 of Hong Kong Basic Law, empowering its chief executive to certify “other offences endangering national security under the law of [Hong Kong Special Administrative region] (HKSAR).”
Specifically, the proposal paper states:
If the Chief Executive issues a certificate under Article 47 of the [Hong Kong National Security Law] (HKNSL) or § 115 of the [Safeguarding National Security Ordinance] (SNSO) to certify that the act concerned in a criminal offence case involves national security, then the case is a case concerning offence endangering national security mentioned in Article 41 of the HKNSL, and the offence being investigated, arrested or charged in respect of such act is an offence endangering national security under section 7(d) of the SNSO.
The proposal paper goes on to state that a person charged with or convicted of any “alternative offence in respect of the same act in the same case” connected to any offense endangering national security, that alternative offense will also be classified as one that invokes Hong Kong’s national security law.
The proposal has cited “the present complicated geopolitical landscape” where national security risks still persist the reason necessitating the new subsidiary legislation. According the proposal, the “subsidiary legislation can improve the legal system and enforcement mechanisms for HKSAR to safeguard national security…” and the earlier that HKSAR approves the legislation, the better it is for national security.
To be clear, the chief executive already has the power to issue certificates to decide whether a criminal act invokes national security under the current legislative landscape. What the subsidiary legislation does is broaden the chief executive’s discretion and remove any scope for discussion as to whether an ordinary crime should face scrutiny under the HKNSL.
The Panels have proposed that the subsidiary legislation be enacted through a “negative vetting” procedure and become effective “on the day” it is published in the Gazette. The proposal paper clarifies that the subsidiary legislation does not involve the creation of “any new criminal offense, penalty or enforcement power,” and that all persons facing criminal charges regardless of whether they involve national security will “continue to enjoy the right to a fair trial by the judiciary vested with independent judicial power.” Nevertheless, the subsidiary legislation has been criticized due to the fact that primary HKNSL allows the government to handpick judges and conduct closed-door hearings for national security cases and set a higher bar for bail.
The HKNSL was passed in June 2020 by China’s legislature to be imposed in Hong Kong. It has been criticized by governments and rights organizations, particularly for its “chilling effect” on fundamental rights, including protests and academic freedom, and described as a “Death Knell for Democracy in Hong Kong.” It has been used to prosecute protestors commemorating the Tiananmen massacre and to sentence pro-democracy media tycoon Jimmy Lai to 20 years in prison. In March, Hong Kong amended the HKNSL to empower the police to demand cellphone passwords. Research shows that more than 80 percent of those convicted under these laws since 2020 have been “wrongly criminalized.”