Emergency Regulations Ordinance

The Emergency Regulations Ordinance (Cap. 241) is a law of Hong Kong that confers on the Chief Executive in Council the power to make regulations on occasions that the Chief Executive believes to be an emergency or public danger. It was first introduced in Colonial Hong Kong in 1922 to combat the seamen's strikes which had immobilised the city's ports, and was invoked on several occasions during the colonial rule.[2]

Emergency Regulations Ordinance
Legislative Council of Hong Kong
CitationCap. 241
Enacted byLegislative Council of Hong Kong
Commenced28 February 1922
Legislative history
BillStrike Legislation Bill 1922[1]
Introduced byAttorney General Joseph Horsford Kemp
First reading28 February 1922
Second reading28 February 1922
Third reading28 February 1922
Status: In force

In case of emergency or public danger, it can be invoked by the Chief Executive-in-Council. Under the provisions of the ordinance, the Chief Executive has the power to make "any regulations whatsoever which he may consider desirable in the public interest." Among the many powers permitting the Chief Executive to exercise upon invoking the ordinance, it also include arrests, property seizures, deportation, control of the ports and transportation, and censorship.[3][4]

The government invoked the ordinance during the 1967 Hong Kong riots, during the oil crisis in 1973,[5] during the 2019–20 Hong Kong protests and postponing the 2020 Legislative Council election.[4]

Context

In January 1922, the Chinese Seamen's Union demanded pay rises of up to 40% from their local employers, and some 30,000 Chinese seamen went on strike. Their grievances lay in the fact that the average Chinese port worker's monthly income was insufficient to support his family while his Caucasian counterparts, who earned several times more, had been granted 15% wage rise. The Emergency Regulations Ordinance was passed by the colonial government that year – enacted in a single day – to combat the strikes, which paralysed the ports.[2]

Aside from format changes made in 2018, the last major amendments to the ordinance was in 1999.[6]

Invocations

Colonial period

Scholars consider the law "a nuclear option" which "can literally run a dictatorship and suspend most rights."[3] The authority granted to censor specifically covers "the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication."[3][4]

The last significant use of the law was in December 1973 during the oil crisis. Regulations were made to control the use of oil and motor fuel, to limit advertising displays and floodlighting, and to impose summer time.[7]

Prohibition on Face Covering Regulation
Main article: Prohibition on Face Covering Regulation

On 4 October 2019, as a response to the 2019–20 Hong Kong protests and "deterring violent and illegal behavior", the Chief-Executive-in-Council invoked the Emergency Regulations Ordinance to implement "Cap. 241K Prohibition on Face Covering Regulation." The regulation ban wearing face masks or obscure facial identification in public assemblies without reasonable excuses. The permitted excuses are: pre-existing medical or health reasons, religious reasons, and if the person uses the face covering for physical safety while performing an activity connected with their profession or employment. Effective 00:00 HKT on 5 October 2019, offenders risked a maximum of one-year imprisonment or a fine of HK$25,000 (US$3,200).[8]

The Court of First Instance (CFI) denied an application for a judicial injunction of the anti-mask law, on the same night shortly before the new regulation took effect. A subsequent attempt by pro-democrats to halt the new regulation also failed, however, the court recommended a judicial review at a later date.[9]

The CFI later ruled that the granting of powers to the Chief Executive in Council on an occasion of public danger by the ERO was unconstitutional, and, therefore, that the entirety of the PFCR was unconstitutional because it was in exercise of those powers.[10] On separate grounds it also declared all the substantive sections of the PFCR excepting that prohibiting the use of masks at an unlawful assembly inconsistent with the Basic Law and the Bill of Rights, and therefore of no effect.

The Court of Appeal ruled that the ERO was in fact constitutional on occasions of public danger, and therefore that the PFCR was not invalid on those grounds.[11] It additionally held that section 3(1)(b) of the PFCR, which prohibited masks at certain ‘unauthorised assemblies’, is proportionate, and therefore valid, but upheld the decision of the CFI that the PFCR is invalid insofar as it prohibits masks at authorised assemblies and meetings.[12]

Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation
Main article: Postponement of the 2020 Hong Kong legislative election

On 31 July 2020, Chief Executive Carrie Lam she would invoke the Emergency Regulations Ordinance to postpone the 2020 Legislative Council election for a whole year, citing the resurgence of the COVID-19 cases.[13] The Chief Executive in Council invoked the Emergency Regulations Ordinance to make the Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation which was promulgated on 1 August, officially suspended the electoral process.[14]

Constitutionality
Main article: Kwok Wing Hang and others v Chief Executive in Council and another

On 18 November 2019, the High Court ruled the "Cap. 241 Emergency Regulations Ordinance" is "incompatible with the Basic Law", however, the court "leaves open the question of the constitutionality of the ERO insofar as it relates to any occasion of emergency." The court also held the ordinance meets the "prescribed by law" requirement.[15]

On 22 November 2019, the High Court made the following remark:

"Nevertheless, we recognise that our Judgment is only a judgment at first instance, and will soon be subject to an appeal to the Court of Appeal. In view of the great public importance of the issues raised in this case, and the highly exceptional circumstances that Hong Kong is currently facing, we consider it right that we should grant a short interim suspension order so that the respondents may have an opportunity to apply to the Court of Appeal, if so advised, for such interim relief as may be appropriate. Accordingly, we shall grant an interim temporary suspension order to postpone the coming into operation of the declarations of invalidity for a period of 7 days up to the end of 29 November 2019, with liberty to apply."[16][17]

On 26 November 2019, it was announced that the government's appeal would be heard on 9 January 2020.[18]

On 27 November 2019, the Court of Appeal extended the interim suspension of the judgement until 10 December 2019.[19][20]

On 10 December 2019, the Court of Appeal refused to suspend the "unconstitutional" ruling by the Court of First Instance on the anti-mask regulation. As scheduled, a full hearing will commence on 9 January 2020.[21][22][23]

On 9 April 2020, the court ruled that the ERO, insofar as occasions of public danger are concerned, is constitutional and therefore valid.[11]

References
  1. "Bill Database". Government of Hong Kong. Retrieved 4 October 2019.
  2. "Hong Kong mulls over emergency law to quell protests". South China Morning Post. 30 August 2019. Archived from the original on 4 September 2019. Retrieved 4 September 2019.
  3. Yu, Verna (28 August 2019). "'A nuclear option': Hong Kong and the threat of the emergency law". The Guardian. Archived from the original on 3 September 2019. Retrieved 3 September 2019.
  4. "How Hong Kong protests could lead to internet cut-off". Bloomberg. 30 August 2019. Archived from the original on 2 September 2019. Retrieved 3 September 2019.
  5. Miners, N. (1996). "The use and abuse of emergency powers by the Hong Kong Government". ISSN 0378-0600. Archived from the original on 10 October 2019. Retrieved 20 November 2019. Cite journal requires |journal= (help)
  6. "Cap. 241 Emergency Regulations Ordinance – Enactment History". e-Legislation. 1999. Retrieved 10 October 2019.
  7. Miners, Norman (1996). "The Use and Abuse of Emergency Powers by the Hong Kong Government" (PDF). Hong Kong Law Journal. 26: 47–57. Archived (PDF) from the original on 19 March 2019. Retrieved 20 November 2019.
  8. "Anti-mask law gazetted". Hong Kong's Information Services Department (in Chinese). Retrieved 19 November 2019.
  9. "Judge explains reason for not allowing injunction". RTHK. Archived from the original on 10 October 2019. Retrieved 10 October 2019.
  10. Kwok Wing Hang and others v Chief Executive in Council and another, HKCFI 2884/2019, at para. 42
  11. Kwok et al., HKCA 192/2020, at para. 353
  12. Kwok et al., HKCA 192/2020, at para. 192
  13. "BREAKING: Hong Kong postpones legislative election citing Covid-19". Hong Kong Free Press. 31 July 2020.
  14. "Cap. 241L Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation". Hong Kong e-Legislation.
  15. "KWOK WING HANG AND OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER [2019] HKCFI 2820; HCAL 2945/2019 (18 November 2019)". www.hklii.hk. Retrieved 19 November 2019.
  16. "KWOK WING HANG AND OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER [2019] HKCFI 2820; HCAL 2945/2019 (22 November 2019)". legalref.judiciary.hk. Retrieved 23 November 2019.
  17. "KWOK WING HANG AND OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER [2019] HKCFI 2884; HCAL 2945/2019 (22 November 2019)". www.hklii.hk. Retrieved 27 November 2019.
  18. Standard, The. "Anti-mask ruling appeal set for January". The Standard. Retrieved 26 November 2019.
  19. "Court extends anti-mask law suspension, say pan-dems - RTHK". news.rthk.hk. Archived from the original on 28 November 2019. Retrieved 27 November 2019.
  20. "Ruling that Hong Kong mask ban is invalid suspended until December 10". South China Morning Post. 27 November 2019. Archived from the original on 12 December 2019. Retrieved 28 November 2019.
  21. "Court deals govt blow over mask ban ruling - RTHK". news.rthk.hk. Archived from the original on 11 December 2019. Retrieved 10 December 2019.
  22. Standard, The. "Court of Appeal rejects mask ban ruling suspension". The Standard. Retrieved 10 December 2019.
  23. "Hong Kong court lifts mask ban, refusing government request to suspend earlier ruling". South China Morning Post. 10 December 2019. Archived from the original on 12 December 2019. Retrieved 10 December 2019.
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