Executive Expropriation Under Hong Kong’s National Security Law

Abstract

Perhaps two of the less anticipated aspects of the National Security Law (NSL) were its commitments to respect human rights and the rule of law in the safeguarding of national security, and the Court of First Instance has now held that the NSL is to be construed in accordance with fundamental rights guarantees in the constitution, so far as is reasonably possible. Against this backdrop, the Chief Executive and National Security Committee have promulgated Implementation Rules for article 43 of the NSL, Schedule 3 of which provides police officers with powers to freeze, restrain, charge, confiscate and forfeit property, when handling national security cases. This article identifies four ways in which Schedule 3 may be ineffective for operating ultra vires its empowering provision, article 43 of the NSL. It goes on to suggest that primary legislation could have achieved the means sought to be achieved by the four provisions in question, notwithstanding what may be the Administration’s view to the contrary.