Courts across the globe handle national security cases, yet they generally defer to the executive branch's judgment on national security matters. Hong Kong is no exception.
Numerous common law jurisdictions recognize that courts are not the proper venue for deciding issues of national security. It is important to note that I am addressing national security issues, not national security offences—there is a crucial distinction between the two.
In the United States, this distinction has been acknowledged and accepted for decades. Supreme Court rulings, ranging from Navy vs Egan (1988) and Holder vs Humanitarian Law Project (2010) to the more recent FBI vs Fazaga (2022), have consistently affirmed that national security risk assessments fall under the exclusive authority of the executive branch. This is because such assessments require predictive judgments based on sensitive intelligence.
Courts are not permitted to challenge these determinations, as they lack the necessary institutional expertise to evaluate sensitive intelligence or threat assessments. Consequently, a clear and essential separation exists between executive national security determinations and the judicial handling of national security crimes.
The situation in the United Kingdom is similar. In the landmark case of Secretary of State for the Home Department vs Rehman (2001), the House of Lords—then the UK’s highest court—upheld the principle that identifying a threat to national security is an executive function, not a judicial one. It further stated that courts cannot substitute their own evaluation of national security risk for that of the home secretary.