Hong Kong proposes letting city leader decide what counts as national security offence

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The Hong Kong government proposed legislation on Monday that would allow the city’s leader to designate certain criminal acts as national security offences, stepping up efforts to stamp out challenges to its rules in the city where critics say freedoms have been eroding.

After massive democracy protests rocked the Asian financial hub in 2019, Beijing imposed a national security law that has been used to arrest many leading activists.

The city’s government in 2024 enacted another security law, targeting other crimes such as espionage and disclosing state secrets.

Critics said the two security laws have stifled the city’s Western-style civil liberties that Beijing had promised to maintain when the former British colony returned to Chinese rule in 1997.

But authorities insist the laws are crucial for the city’s stability.

The Security Bureau and the Department of Justice submitted a document to the legislature proposing that subsidiary legislation clearly state the procedures for classifying “other offences endangering national security under the law.”

They said if Chief Executive John Lee ascertained that the act in a criminal case involved national security, then the case would fall into that category.

If a suspect is charged with a national security offense, but also faces an alternative charge for the same act, then that alternative charge will also be considered as an offense endangering national security, they said.

Officials say no new power is created

“Amid the present complicated geopolitical landscape, national security risks still exist. Stating clearly the above mechanism by way of subsidiary legislation can improve the legal system and enforcement mechanisms for Hong Kong to safeguard national security,” they said in the document.

The legislation was meant to refine details of procedural matters and bring greater certainty, authorities said.

“The subsidiary legislation does not involve the creation of any new criminal offence, penalty or enforcement power,” they said.

The government said the legislative process should be concluded as soon as possible so the change may take effect.

Concerns about the rule of law raised

Simon Young, a law professor at the University of Hong Kong, said the document confirmed two things people already know: the definition of national security offences depends not solely on the offence category, but also the circumstances, and the chief executive’s determination whether an act involves national security through a certificate will bind the court.

But Young said there is the danger of the chief executive relying upon secret information to judge the case as involving national security, leaving the defendant no room to contest the decision.

“This is not new and something I had warned about from the beginning, the danger to the rule of law and fair trial from an unreviewable executive power to determine critical facts binding on the court,” he said.

Eric Lai, a fellow at Georgetown Centre for Asian Law, said the will of the leader may “arbitrarily” turn criminal cases into national security matters under the proposed change and such exercise of power comes without institutional safeguards to prevent abuse of it.

That approach could further erode the city’s rule of law, he said.

He added that the chief executive could also step into other criminal cases, such as commercial fraud and money laundering, under the pretext of safeguarding national security.

These offences are often weaponised to suppress dissidents in authoritarian states, he said.

Hong Kong’s Secretary for Justice Paul Lam told reporters that the executive branch holds the power in issuing such certificates because very sensitive and highly confidential information is often involved during the determination process.

Lam said it is not something that the judicial institution typically can make a judgment on.

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