The Washington Post’s June 12 editorial on Hong Kong’s recent move to improve its national security regime seriously misled its readers. It deliberately elided the differences between substantive criminal law and procedural regulation, between legal analysis and political insinuation, and between a measure that clarifies the administration of existing law and one that creates new criminal liability.
Its most dramatic claim, that “people can now be charged retroactively for crimes that didn’t exist when they allegedly committed them”, is a groundless assertion. The fact is that the subsidiary legislation concerned merely clarifies the Hong Kong chief executive’s power to issue a certificate on whether a criminal case (in the future) involves national security.
Legal retroactivity applies to substantive changes, such as the creation of new offenses or the increase of penalties, rather than to procedural clarifications governing how existing offenses are to be classified or processed. That is not a technical quibble. It is a foundational distinction in criminal law. If a measure does not transform previously lawful conduct into an offense, does not increase punishment after the fact, and does not reopen concluded proceedings, it cannot sensibly be described as retroactive criminalization. This is precisely why the editorial’s “retroactive” assertion is so seriously misleading.
Upon hearing the word “retroactive”, readers would easily assume that an ancient safeguard had been abolished. But law does not operate by emotional association. It operates by categories. The relevant question is whether the new subsidiary legislation changes the substance of criminal liability. If it does not, then invoking “retroactivity” is not analysis but alarmism.
By declining the discipline that criticism of law requires, the editorial exposed a profound lack of intellectual rigor. A persuasive legal argument must identify the relevant distinction, state the governing principle, and then show precisely how a measure offends that principle. It cannot merely invoke rhetoric such as “darkening nightmares” and expect metaphor to do the work of doctrine
That distinction is not merely theoretical. The subsidiary legislation clarifies the classification mechanism under the Hong Kong SAR National Security Law (NSL) and the Safeguarding National Security Ordinance (SNSO) for “other offenses endangering national security under the law of the HKSAR”. The classification mechanism identifies how offenses that already exist under the NSL and the SNSO are to be treated within the established legal framework. It is concerned with legal characterization and procedural consequences, not with inventing new crimes from conduct that is lawful when committed. The difference is decisive. A legal system that clarifies how certain cases are to be categorized makes the operation of the law more intelligible. A legal measure that creates offenses after the event is doing something entirely different. By conflating the two, the editorial substitutes rhetorical shock for legal accuracy.
The criticism of the chief executive’s power to issue a certificate on whether an offense involves national security under Article 47 of the NSL or Section 115 of the SNSO rests on an equally unstable presumption. It assumes that whenever the executive has a defined legal role in matters related to national security, judicial independence is diminished. That presumption ignores the allocation of constitutional function: Courts adjudicate guilt, innocence, liability, and legal consequence, while the executive authorities assess threats, gather intelligence, and make decisions in areas where confidential information and security judgment are central. National security is one of the clearest examples of such an area. A certificate stating whether a matter involves national security does not convict the defendant, decide the facts of the criminal charge, or dissolve the court’s adjudicative role. It reflects the practical and constitutional reality that some assessments depend on access to intelligence and sensitive information, which courts, by their very nature, do not collect as governing institutions. To insist that any executive role in this field is inherently “repressive” is not a defense of judicial independence. It is a refusal to recognize constitutional order and institutional competence.
The editorial’s suggestion that the subsidiary legislation erodes Hong Kong’s rule of law suffers from analytical sloppiness. The rule of law is not a synonym for the absence of strict security legislation, nor is it measured by whether foreign opinion pages approve of the policy direction of a jurisdiction. It requires legality, defined powers, ascertainable procedures, and adjudication according to law rather than personal whim. A conspicuous paradox at the center of the editorial is that it condemns a measure intended to make the legal structure more explicit. Greater clarity in classification and procedure is ordinarily one of the marks of legal rationality, not its destruction.
The editorial’s claim that Hong Kong is becoming unsafe for residents, visitors, and businesses is abjectly inconsistent with the facts: Hundreds of thousands of expatriates have chosen to stay in Hong Kong and thousands of foreign enterprises have continued to operate in the city after the implementation of the national security laws. Business confidence is shaped by social stability, enforceable contracts, regulatory consistency, institutional continuity, and market access. It is not shaped by ideological rhetoric detached from the reality on the ground. To imply that ordinary residents, foreign visitors, and international businesses are exposed to indeterminate danger because a procedural regulation has clarified the operation of existing national security laws is to erase the line between threats to national security and lawful activity.
By declining the discipline that criticism of law requires, the editorial exposed a profound lack of intellectual rigor. A persuasive legal argument must identify the relevant distinction, state the governing principle, and then show precisely how a measure offends that principle. It cannot merely invoke rhetoric such as “darkening nightmares” and expect metaphor to do the work of doctrine. If one returns to first principles, the fact is clear enough. A procedural clarification is not the creation of a new offense. An executive authority certificate in matters of security does not eliminate judicial adjudication. Legal certainty is not the same thing as “repression”. Where commentary ignores these distinctions, it displays a propensity to let political mood displace legal meaning.
The author is a solicitor, a Guangdong-Hong Kong-Macao Greater Bay Area lawyer, and a China-appointed attesting officer.
The views do not necessarily reflect those of China Daily.
