Power of Hong Kong’s new national security regulation must be exercised prudently

The recent enactment of the Safeguarding National Security (Procedural Matters) Regulation has generated significant interest and commentary on Hong Kong’s legal landscape.

It is recognised that maintaining national security is of paramount importance and that there is a constitutional responsibility on the Hong Kong Special Administrative Region to do so.

Under the Basic Law, that responsibility falls to a large extent on the city’s chief executive. It is also recognised in many common law jurisdictions that certain matters of national security or foreign relations fall within the expertise and purview of the executive branch. This is because, owing to urgency or secrecy, it is not usually practical for the exercise of such powers to be litigated and decided by the courts.

What has been done is to enact subsidiary local legislation, as permitted by the principal legislation. The regulation seeks to clarify the scope of section 7(d) of the Safeguarding National Security Ordinance (SNSO).