Ronny Tong

Opinion | Article 23: concern over Hong Kong’s subsidiary legislation understandable but misplaced

Subsidiary legislation is often found in both common law and civil law jurisdictions. Its purpose is to provide details and guidelines in relation to matters under the primary legislation – but never to create new offences

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A copy of the proposed Safeguarding National Security Bill is displayed following a special meeting for Article 23 legislation at the Legislative Council in Hong Kong on March 8. Photo: Bloomberg

Ronny Tong

Published: 5:30am, 19 Mar 2024Updated: 9:19am, 19 Mar 2024

After the Hong Kong government’s announcement that it would enact Article 23 legislation, discussions on the proposed bill were relatively calm and rational.

Unfortunately, that seems to have changed after officials announced, on completion of scrutiny of the Safeguarding National Security Bill in the Legislative Council, that there would be a proposed amendment to empower the chief executive in council to make subsidiary legislation “for the needs of safeguarding national security and the better carrying into effect of … the HK National Security Law, including provisions in its Chapter V concerning the mandate of the Office for Safeguarding National Security of the Central People’s Government”.

That this proposal brought a relatively strong reaction from a lot of people, especially the media and the international community, is perhaps understandable or even foreseeable. After all, Chapter V of the Hong Kong national security law is probably the most talked about chapter, with Article 54 mentioning “necessary measures to strengthen the management and services for … news agencies of foreign countries” and Article 55 dealing with special circumstances under which an offence under the law could be tried on the mainland.

It is thus somewhat surprising that legislators and the government alike seemed to be unaware of such sensitive issues and unprepared to offer detailed explanations.

Be that as it may, the concerns of the public are somewhat misplaced. Subsidiary legislation is a form of secondary legislation often found in both common law and civil law jurisdictions. Its purpose is to provide operational details, guidelines and procedures in relation to matters provided under the primary legislation but never to create new law, let alone new offences.

If you fall foul of the subsidiary legislation, you may be punished for non-compliance with the regulation but never for being guilty of the crime specified under the primary legislation.