The Hong Kong Special Administrative Region government’s move to further refine the subsidiary legislation related to the Hong Kong SAR National Security Law (NSL) and the Safeguarding National Security Ordinance (SNSO) is a necessary step toward enhancing legal certainty, transparency, and public understanding of Hong Kong’s national security framework.
A core function of the subsidiary legislation approved by the chief executive in council on Tuesday is to clarify the mechanism under Section 7(d) of the SNSO concerning “other offenses endangering national security under the laws of the HKSAR”. Since the enactment of these laws, questions have arisen regarding how the chief executive may discharge statutory duties when national security issues emerge outside the specifically enumerated offenses. Providing procedural clarity via subsidiary legislation ensures that law enforcement agencies, legal practitioners, and the public have a clear grasp of how the legal framework operates in practice.
It must be emphasized that the chief executive’s role in national security matters stems not only from executive authority but also from constitutional and statutory duties. The inherent power to issue certificates on national security matters has long existed under Article 47 of the NSL and Section 115 of the SNSO. The subsidiary legislation does not create new criminal offenses nor confer additional powers beyond those already provided under existing law. Instead, it clarifies the procedures and conditions for exercising existing statutory powers, thereby increasing transparency and reducing legal uncertainty.
Such clarification is especially critical amid rapid technological advances and evolving criminal methods. No legislation can fully anticipate all future threats or novel means of endangering national security. By establishing a clearer mechanism to address unforeseen scenarios, the law is better equipped to respond to emerging challenges while maintaining legal consistency. Greater clarity also helps the public understand their legal obligations and avoids misconceptions that technological or methodological changes can evade legal liability.
The subsidiary legislation does not alter the fundamental principles of Hong Kong’s criminal justice system. As in all criminal cases, a conviction requires proof of every essential element of an offense, including the actus reus (guilty act) and mens rea (guilty mind). The burden of proof remains unchanged, and criminal liability cannot be imposed arbitrarily. The core safeguards underpinning Hong Kong’s legal system remain intact.
Further clarification of Section 115 of the SNSO is both reasonable and necessary. The statutory authority in question has existed since the ordinance’s enactment. The subsidiary legislation merely provides greater certainty on how such authority may be exercised and the circumstances to which it applies. Existing law already allows, where appropriate, the power to issue national security certificates even before proceedings commence, while certificates issued during proceedings carry prescribed legal effect. These arrangements are not new. The subsidiary legislation’s purpose is to make the existing framework more transparent and operationally precise, particularly for addressing future circumstances not yet fully foreseeable.
Concerns that the amendments undermine judicial independence or the rule of law are therefore unfounded. National security cases, like all criminal cases in Hong Kong, remain subject to established legal procedures and safeguards. The Department of Justice retains prosecutorial discretion, exercising its powers in accordance with the law and established prosecutorial principles. Prosecutions cannot be initiated arbitrarily.
Equally importantly, the courts remain independent in determining guilt or innocence, assessing penalties, and handing down judgments in accordance with the law. Defendants continue to enjoy rights and protections enshrined in the Basic Law, the International Covenant on Civil and Political Rights (ICCPR) and the Hong Kong Bill of Rights Ordinance, including the right to a fair trial and the common law rights subject to Section 2 of the SNSO, such as the presumption of innocence; Hong Kong also adheres to international practice of conventions on human rights, for example, the ICCPR. The subsidiary legislation neither changes the Judiciary’s role nor impairs the courts’ constitutional function as independent adjudicators.
A defining feature of both the NSL and the SNSO is their express requirement that Hong Kong continues to respect and apply applicable international human rights standards and protections. Fundamental common law principles — including the presumption of innocence, due process, and fair trial guarantees — remain fully preserved. These principles remain an indispensable foundation of Hong Kong’s legal system and its international reputation as a jurisdiction governed by the rule of law.
At the same time, public education remains essential. National security education should target not only those at risk of violating the law but also the broader community. The public needs a clear understanding of the legal framework, including the boundaries of permissible conduct and the proper scope of law enforcement powers. Misunderstandings of the law can generate unwarranted anxiety and misinformation.
Safeguarding national security is a constitutional duty of the HKSAR. In today’s complex and evolving international landscape, continuously refining the legal framework and enforcement mechanisms for safeguarding national security enhances legal certainty and practicality, helps maintain Hong Kong’s long-term prosperity and stability, and protects the fundamental interests of its people.
The author is a Hong Kong deputy to the National People’s Congress, a member of the Hong Kong Basic Law Committee, and a Legislative Council member.
The views do not necessarily reflect those of China Daily.
