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Hong Kong courts
OpinionHong Kong Opinion
Ronny Tong
Opinion
Ronny Tong

Why executive branches are best placed to gauge national security risks

Courts the world over sit on national security cases but defer to executive judgment on national security issues. Hong Kong is no different

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Chief Executive John Lee Ka-chiu attends the opening ceremony of National Security Education Day at the Hong Kong Convention and Exhibition Centre on April 15. Photo: Nora Tam
Ronny Tong
Ronny Tong, SC, was chairman of the Hong Kong Bar Association from 1999 to 2001, and was first elected a member of the Legislative Council in 2004.
The recent enactment of a subsidiary legislation in Hong Kong regarding the appropriate procedure to be followed in cases of non-national security offences involving national security considerations not surprisingly spurred some to revisit the chief executive’s power, granted under the national security law in 2020, to issue a certificate as to whether an act involves issues of national security.
That some people express concern that such an important task is left to the executive and not the judiciary is understandable only because they have failed to understand the governing rationale behind this distinction.

Many common law jurisdictions accept that the court is not an appropriate forum to determine matters of national security. Note that I am referring to national security issues and NOT national security offences. There is a vital difference.

In the United States, this difference has been recognised and accepted for decades. Supreme Court cases from Navy vs Egan (1988) to Holder vs Humanitarian Law Project (2010) to the most recent case of FBI vs Fazaga (2022) have confirmed repeatedly that national security risk assessments fall within the exclusive competence of the executive branch because they require predictive judgments based on sensitive intelligence.

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