Making of Subsidiary Legislation under Safeguarding National Security Ordinance
The Chief Executive in Council today (June 9) approved the making of the Safeguarding National Security (Procedural Matters) Regulation (Procedural Matters Regulation) under section 110 of the Safeguarding National Security Ordinance (SNSO), to state clearly the classification mechanism 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 for "other offences endangering national security under the law of the HKSAR", in order to reflect the legislative intent of the HKNSL and the SNSO, and to better carry into effect the relevant provisions of the HKNSL and the SNSO. The Procedural Matters Regulation was gazetted on the same day and came into operation immediately.
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To fulfil the constitutional responsibility to continue to improve the legal system and enforcement mechanisms for safeguarding national security, the Government of the Hong Kong Special Administrative Region (HKSAR) has been continuously reviewing the current legal system and enforcement mechanisms of the HKSAR. Should there be any area for improvement or any need to clearly provide for a mechanism, the HKSAR Government will introduce legislative proposals in a timely manner.
Based on the legislative intent of the HKNSL, the meaning of "offence endangering national security" under section 7 of the SNSO and the relevant case law of the Court of Final Appeal, offences endangering national security include the offences stipulated in the HKNSL, the Implementation Rules for Article 43 of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region and the SNSO, as well as "other offences endangering national security under the law of the HKSAR" referred to in section 7(d) of the SNSO, i.e. other offences under other laws of the HKSAR in respect of which the criminal act concerned in a particular case is in the nature of endangering national security. In this connection, the HKSAR Government considers it necessary to state clearly the classification mechanism under the HKNSL and the 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 mechanism stated by the Procedural Matters Regulation is as follows: if the Chief Executive issues a certificate under Article 47 of the HKNSL or section 115 of the SNSO to certify that the act concerned in a criminal 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 in respect of such act which is the subject of investigation, arrest or charge is an offence endangering national security under section 7(d) of the SNSO.
The relevant provisions on certificates issued by the Chief Executive are entirely consistent with the common law principles. The courts in common law jurisdictions such as Hong Kong, the United Kingdom, etc are all of the view that the executive authorities are in a better position than the courts to make appropriate assessments and judgements on matters of national security issues. Therefore, the judicial authorities defer to the assessments and judgements of the executive authorities in this respect.
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A HKSAR Government spokesperson said, "The mechanism for the Chief Executive to issue a certificate under Article 47 of the HKNSL or section 115 of the SNSO to certify whether an act involves national security, as well as 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. The Procedural Matters Regulation does not alter these provisions. It does not alter the scope of application of the HKNSL and the SNSO and the definition of 'offence endangering national security'. Nor does it create any new offence, penalty or enforcement power.
"The making of the Procedural Matters Regulation aims to state clearly the classification mechanism under the HKNSL and the SNSO for 'other offences endangering national security under the law of the HKSAR', thereby refining details of relevant procedural matters and bringing greater certainty to the implementation of the relevant provisions under the HKNSL, the SNSO and other laws. The relevant provisions under the HKNSL, the SNSO and other laws are only applicable to a small number of criminals who commit an offence endangering national security, and will not affect the lives of the general public, or the normal operation of organisations and institutions. Therefore, law-abiding individuals, organisations and institutions will by no means be affected by the Procedural Matters Regulation."
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