July 24, 2024

In a civilized society, criminal offenses generally do not have retroactive effect. This is to ensure that citizens are not punished by the law for actions that were legal yesterday becoming illegal today due to changes in the law. Similarly, a defendant will not face a heavier penalty for a crime committed yesterday if the law increases the punishment for that crime today. This principle is protected by the “Human Rights Act.”

The “Safeguarding National Security Ordinance” recently amended the provisions on parole, stipulating that offenders endangering national security can only be granted parole if the head of the Correctional Services Department is convinced that their release will not adversely affect national security. This provision has retroactive effect and applies to prisoners who have already been sentenced.

This provision is controversial for two reasons: First, if the defendant’s charges stem not from the “National Security Law” but from another law such as the “Public Security Ordinance” for crimes like rioting, should the provision still apply? National security differs from public safety. If the government chose not to prosecute under the “National Security Law” and instead the court sentenced under the “Public Security Ordinance,” then the offense should not be considered as endangering national security during parole decisions. Otherwise, the boundary between public and national security becomes blurred, leading to confusion. If the head of the Correctional Services Department independently decides to expand the scope of crimes that endanger national security by applying new criteria, it could potentially violate the principle of non-retroactivity.

What is considered punishment? The purpose of parole is to encourage good behavior among inmates during their incarceration and to facilitate their rehabilitation and reintegration into society. The court should have already considered the impact of the defendant’s actions on national security and the likelihood of parole at the time of sentencing. If the conditions for parole are altered after sentencing, allowing the head of the Correctional Services Department to reconsider factors already considered by the court and to change the conditions for parole established at sentencing, then the basis for refusal can only be punitive, thereby violating the principle of non-retroactivity.