Why executive branches are best placed to gauge national security risks
Ronny Tong argues that national security risk judgments belong to the executive, not the courts, because they depend on sensitive intelligence and predictions.
Intelligence analysis by GPT-5.4 Mini
The piece defends Hong Kong's chief executive having power to certify national security questions, saying courts are not designed to make threat assessments. Tong cites US and UK cases to argue that judging security risks is an executive function, while courts should handle crimes.
Ronny Tong says deciding if something could hurt national security is like judging a storm before it arrives. He argues judges can decide if a rule was broken, but the government should decide whether a hidden danger is serious enough to matter.
Analysis
Core argument
Ronny Tong says the recent Hong Kong subsidiary legislation on procedures for non-national security offences that still involve national security questions has revived debate over whether the chief executive should be able to certify that an act raises national security issues. His answer is yes, because the real question is not whether a crime has been committed, but whether a matter involves a security risk that must be assessed by the executive.
Tong draws a firm line between national security issues and national security offences. In his view, courts are suited to deciding guilt or innocence in criminal cases, but they are not the right forum for judging threats to state security. Those judgments often rely on sensitive intelligence, forecasts of future harm, and information that judges are not institutionally equipped to weigh.
To support that view, he points to long-standing common law practice in the United States and Britain. He cites cases including Navy v Egan, Holder v Humanitarian Law Project, and FBI v Fazaga in the US, which he says affirm that national security risk assessments belong to the executive branch. He also refers to Secretary of State for the Home Department v Rehman in the UK, where the House of Lords said identifying a national security threat is an executive task and courts should not replace the home secretary's judgment with their own.
The article's broader claim is that Hong Kong is not unusual here. Tong argues that deferring to the executive on security risk is consistent with the common law tradition rather than an exception to it. The judiciary still has a role, but that role is to adjudicate offences, not to make the first call on security threats.
Key points
- Tong says Hong Kong's new subsidiary legislation has revived debate over who should assess national security concerns.
- He argues there is a crucial difference between national security issues and national security offences.
- The article says courts are not institutionally suited to make predictive threat assessments based on sensitive intelligence.
- Tong cites US and UK case law to argue that national security risk judgments belong to the executive branch.
- He says courts should adjudicate crimes, while the executive decides whether a matter raises security risks.
If Tong's view prevails, Hong Kong could have a clearer split between executive security judgments and court trials. That may reduce confusion over procedure and make national security handling more predictable.
The downside is that more power in the executive may deepen concern about limited judicial oversight. Critics may see the arrangement as making it easier for the government to define security risks broadly.
