On March 14, when the Safeguarding National Security Bill (the bill) was scrutinized by a Legislative Council bills committee, the government proposed several amendments. The most significant involved empowering the chief executive, acting in conjunction with the Executive Council, to make subsidiary legislation to safeguard national security. 

This is required “for the needs of safeguarding national security and the better carrying into effect” of the Safeguarding National Security Ordinance, the National Security Law for Hong Kong (NSL), and the National People’s Congress Standing Committee’s (NPCSC) interpretation of the NSL’s Articles 14 and 47.

This means that the chief executive in council can only invoke the power in limited circumstances, and cannot go outside the scope of the Legislative Council’s delegation.

The government explained that it acted as it did after considering legislators’ views. It is by no means uncommon for the legislature to delegate its legislative power to executive authorities for the implementation or administration of policies covered in the principal legislation, and precedents abound. 

One example is the Chinese Nationality (Miscellaneous Provisions) Ordinance (Cap.540, Sect.6), which empowers the Director of Immigration to issue regulations for the “better carrying out” of the provisions of the Nationality Law of the People’s Republic of China.

Another example arose in 2019, when the Emergency Regulations Ordinance (ERO) (Cap.241) was center stage. It was invoked by the then chief executive, Carrie Lam Cheng Yuet-ngor, to deal with the problems caused by the wearing of face masks by black-clad rioters during the insurrection. The ERO allows the chief executive in council, if an emergency or public danger arises, to “make any regulations whatsoever which he may consider desirable in the public interest” (Sect.2). Lam’s regulation was challenged in the courts but was ultimately upheld by the Hong Kong Court of Final Appeal in 2020 (FACV 6-9/2020).

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Therefore, the empowerment of the chief executive to make subsidiary legislation is by no means novel, and there are not dissimilar parallels in other common law jurisdictions.

In any event, the chief executive cannot issue subsidiary legislation in a vacuum. Subsidiary legislation is subject to negative vetting by the Legislative Council, and the power the bill confers upon the chief executive is no exception. This means that legislators always have the final say. 

In exercising the power to make subsidiary legislation, the chief executive must consider the parameters of the NSL. The NSL stipulates that the chief executive is accountable to the Central People’s Government (Art.11), and, as he chairs the Committee for Safeguarding National Security (Art.13), he is best placed to decide what subsidiary legislation is required in any given situation.

Indeed, the chief executive has a pivotal role in safeguarding national security. The National Security Committee he chairs has responsibility, for example, for “formulating policies for safeguarding national security in the Region”, for “advancing the development of the legal system and enforcement mechanisms of the Region for safeguarding national security”, and for “coordinating major work and significant operations for safeguarding national security in the Region” (NSL Art.14). Given these responsibilities, the proposed power to issue subsidiary legislation accords with the functions envisaged by the NSL. 

If, however, the chief executive overstepped the mark, the subsidiary legislation could be challenged in the courts, as happened, albeit unsuccessfully, with the emergency regulation banning the wearing of face masks. If the subsidiary legislation is considered “ultra vires” the primary legislation (meaning it exceeds the scope of the delegated authority), it is amenable to judicial review. It would then be for the judiciary to decide whether it went too far or was otherwise incompatible with the Basic Law (including its human rights protections).    

The proposed maximum penalty of seven years’ imprisonment and a fine of HK$500,000 ($63,940) for violating the subsidiary legislation is undoubtedly robust, and may not be to everybody’s taste. However, maximum penalties for offenses are rarely imposed. They simply set a ceiling, which hopefully has a deterrent effect on anybody who might otherwise consider violating the law. The maximum penalty, for example, for the offenses of drug trafficking, rape and robbery, is life imprisonment, but it is hard to recall any recent case where it has been imposed. Offenders generally receive sentences well short of the maximum, even when their crimes are grave.

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Although the government explained the new power by saying it might cover “implementation details” and “administrative regulations”, it is difficult to identify precisely the circumstances that might lead the chief executive to issue subsidiary legislation. He must, nonetheless, have the tools available whenever national security is endangered. As with the ERO, it is in the public interest that a mechanism should exist that enables unexpected challenges to national security to be timeously addressed.

Therefore, the power is essentially precautionary and designed to fill any potential lacunae in the city’s defensive network. It is constitutionally legitimate, and also forward-looking. It should be welcomed by everybody who wants Hong Kong to be prepared for any eventuality and to be able to fully protect its motherland.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.