Dong Qizhen says the new ruling is a firm, pragmatic step toward a more complete and coherent framework for safeguarding the SAR

The chief executive in council approved on Tuesday the Safeguarding National Security (Procedural Matters) Regulation (the Regulation), made under section 110 of the Safeguarding National Security Ordinance (SNSO). It was gazetted the same day and came into operation immediately. Stripped to its essentials, the Regulation clarifies the classification mechanism under the Hong Kong SAR National Security Law (NSL) and the SNSO for “other offenses endangering national security under the law of the HKSAR” by empowering the chief executive to issue a certificate — under either Article 47 of the NSL or Section 115 of the SNSO — certifying that the act concerned in a certain criminal case involves national security, thereby bringing the case within the national security procedural framework.

Think of this as a missing jigsaw piece finally snapping into place. Section 7 of the SNSO provides that national security offenses include explicitly named offenses contained in the NSL (and its Implementation Rules) and the SNSO, as well as “other offenses endangering national security under the law of the HKSAR”.

The notion of “other offenses” leaves an opening in subsection (d) designed to keep pace with evolving threats.   The issue with Section 7(d), therefore, was that it set up the concept but left out the procedural machinery to actually make it work. The Regulation fixes this by answering on-the-ground operational questions: Who decides that a specific crime involves national security?

This is where clarity matters most: The Regulation is purely a matter of procedure, not substance. Establishing a clear-cut classification mechanism does not change the nature of an offense. The charge, the penalty, and the fundamental elements of the offense remain exactly as they were. As the Hong Kong Special Administrative Region government emphasizes, the new rules under the Regulation neither expand the scope of existing laws nor grant new enforcement powers. The law’s teeth haven’t grown sharper, there is simply a clearer manual on how they operate.

Vesting this certification power in the executive rather than the Judiciary rests on a bedrock common law principle-- — judicial deference. Courts have long acknowledged that assessments of what does or does not engage national security are not strictly legal questions. They are matters of judgment and policy — areas where the executive is institutionally better equipped. A clear explanation of this was provided in 2001 by Lord Hoffmann in the landmark United Kingdom case Secretary of State for the Home Department vs Rehman ([2001]UKHL 47). As he noted: “...the question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive ...” The chief executive’s certificate mechanism fits squarely in this tradition, underscoring that the move is entirely consistent with common law principles.

Ultimately, the Regulation breaks no new substantive ground and departs from no common law orthodoxy. It simply breathes operational life into a concept already on the statute books. For law enforcement, it draws clearer boundaries. For the general public, it delivers a more transparent and predictable system to navigate. As the government emphasized in its news release, the provisions of the Regulation “are only applicable to a small number of criminals who commit an offense endangering national security, and will not affect the lives of the general public, or the normal operation of organizations and institutions”. This exemplifies responsible rule-of-law development — a firm, pragmatic step toward a more complete and coherent framework for safeguarding national security in the SAR.

The author is a Hong Kong solicitor and vice-president of the Legal Profession Advancement Association.

The views do not necessarily reflect those of China Daily.