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20 Santa Clara J. Int'l L. 48 (2021-2022)
Past as Prologue: Intercept & Surveillance Rules under Hong Kong's National Security Law

handle is hein.journals/scjil20 and id is 50 raw text is: Santa Clara Journal of International Law

By Stuart Hargreaves*
In response to civil unrest in 2019, in 2020 Beijing directly applied a new
National Security Law to Hong Kong. Part of this law established a new system of
rules for the authorisation of communications intercepts and covert surveillance
in the context of certain national security offences. Interestingly, this new scheme
looks in many ways like a prior system that was deemed unconstitutional by a
Hong Kong court in 2006: it centralizes authorization authority in the executive
branch and there is little external oversight of the process. This paper argues that
the new system of rules regarding covert surveillance of national security
suspects and the interception of their communications is more than just a
mechanism to ease the detection of national security threats, however. The
Central Authorities have recently stated the Chief Executive of Hong Kong holds
a 'transcendent position' over the rest of the local government. This paper
suggests the new scheme shows the purpose of this transcendence - the removal
of the judicial branch from the process allows the Central Authorities to more
effectively ensure the primacy of core state goals through the office of the Chief
* BA, JD, BCL, SJD. Associate Professor, Faculty of Law, the Chinese University of
Hong Kong. I am immensely grateful to Simon Young for comments on an earlier draft.




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