Executive power over security cases 'reasonable': SJ

Secretary for Justice Paul Lam on Thursday said granting the executive branch the power to classify criminal acts as a matter of national security is a rational and widely accepted practice across common law jurisdictions. His remarks came after the subsidiary legislation stipulated under the Hong Kong National Security Law and the Safeguarding National Security Ordinance was gazetted and came into effect on Tuesday. It empowers the chief executive to issue a certificate to classify criminal acts involving "other offences endangering national security under the law of the HKSAR" as national security cases. Certificates issued on this matter cannot be challenged in court, and no legal action of any form may be taken against that. Upon court approval, individuals arrested on suspicion of national security offences can be detained for up to 14 days without charges. Additionally, the cases will be tried by designated national security judges. At a Legco subcommittee meeting on Thursday to discuss the matter, the justice minister said many common law jurisdictions, such as the UK and US, defer to executive authorities to decide whether a criminal act infringes on national security matters. "For you to make an appropriate judgement in defence of national security, you need to consider a host of information, including confidential, sensitive information," Lam said. "So the question is, is it what lawyers, judges are trained to do? The answer is definitely not. The most reasonable [course of action] is for the executive authorities to shoulder the responsibility to carry out the intelligence, analyse intelligence and so forth." He also said that giving the CE the authority in national security cases won't undermine judicial independence. "The chief executive’s role is only to decide whether a case is related or involves national security. The certificate cannot possibility be made or seen as having an effect on sentencing or the final judgement of the court.” Lam also pointed out the subsidiary legislation does not have retrospective power and wouldn’t be applied to cases in which proceedings have already been completed. Asked what would happen if a certificate is issued after a trial of an ordinary offence has already begun, Secretary for Security Chris Tang said designated national security judges would be assigned to take over the case. He also said some "bad actors" have been spreading misinformation about the subsidiary legislation in an attempt to scare the public and incite hatred towards the government. This showed that threats to national security still exist, Tang said. Lawmakers generally voiced support for the classification mechanism but they also urged officials to give more details to the public. After more than two hours of deliberations, chairman of the subcommittee, Carmen Kan, declared that scrutiny for the subsidiary legislation had been completed. Lawmakers did not propose any amendments. Kan will file a verbal report to the Legco House Committee on Friday. Edited by Edmond Fong