Hong Kong’s embattled leader signalled her readiness to get tough in quelling violent anti-government protests, declaring on Tuesday that her administration would consider all the city’s laws, including those granting her sweeping emergency powers.
Her suggestion, however, fuelled concerns she would imminently invoke the powerful emergency law, a move two members of her cabinet cautioned against, while legal experts warned it could deal a blow to the city’s rule of law.
Ahead of her weekly Executive Council meeting on Tuesday morning, Carrie Lam Cheng Yuet-ngor was asked by reporters whether the government was considering invoking the Emergency Regulations Ordinance, as suggested by a column in pro-government newspaper the Sing Tao Daily.
Instead of dismissing the speculation, Lam said: “All laws in Hong Kong – if they can provide a legal means to stop violence and chaos – the SAR government is responsible for looking into them.”
A government source later told the Post that the administration would not rule out the option, but stressed that it had not been formally discussed.
“For sure, we would not exclude any possibilities at this stage as we do not know how the protest will escalate in future,” the source said. “But all I can say is the protest has not reached that level yet.”
At another event, Secretary for Commerce and Economic Development Edward Yau Tang-wah also did not rule out the option when asked whether the government would resort to such powers. Having order and stability was the objective, he said, and “we are thinking every day about ways that are based on ‘one country, two systems’ and Hong Kong laws to restore order”.
On the impact of such a law on trade, Yau said: “I don’t see any impact on trade because if there is no stable environment, any economic activities will be affected.”
The Emergency Regulations Ordinance, last used during the 1967 leftist riots, would give the chief executive the authority to “make any regulations whatsoever which he [or she] may consider desirable in the public interest” if she considered it an occasion of “emergency or public danger”.
Such regulations, which would not need the approval of the legislature, grant a wide range of powers, including on arrests, detentions and deportations, the control of ports and all transport, the appropriation of property, and authorising the entry and search of premises and the censorship and suppression of publications and communications.
The ordinance also allows the chief executive to decide on the penalties for the offences drawn under the emergency regulations, with a maximum of life imprisonment.
Tuesday’s hints from the government that it was leaving the door open to invoking the powers came after an escalation of violence on Sunday, as protesters engaged in fierce clashes with police.
They also came ahead of an important weekend. On Saturday, on the fifth anniversary of Beijing handing down a restrictive electoral framework for the city, the Civil Human Rights Front plans to hold its fourth mass march since protests over the now-shelved extradition bill began in June. The front said the march was to oppose the electoral framework and to call for genuine universal suffrage, along with protesters’ other demands, such as withdrawal of the bill and an independent inquiry.
Police said on Tuesday that it would not be appropriate for the force to comment on the possibility of emergency powers being invoked, but stressed it had the ability to handle the chaotic situation in the city.
Such laws date back to 1922, and it’s really meant to be a wartime law when you basically have a state of martial law
Simon Young, University of Hong Kong
Executive councillor Regina Ip Lau Suk-yee warned that turning to the ordinance could be risky.
Ip noted there had been calls to outlaw wearing masks. “But what might the effects be? Will more people mask their faces?” she asked.
In a television interview, barrister and executive council member Ronny Tong Ka-wah said one option the government might consider was to invoke the ordinance to ban public gatherings in specific places, such as the airport.
But he said that any law enacted that way must be reasonable and that the government must take a legal test to make sure the intended protection of public interest would justify the restriction of rights.
Law professor Simon Young of the University of Hong Kong warned such an order could give rise to significant human rights issues.
“Such laws date back to 1922, and it’s really meant to be a wartime law when you basically have a state of martial law,” Young said, referring to the year a general strike took place in Hong Kong and Guangzhou. “Basically, the Chief Executive in Council could suspend the rule of law until whatever it needs to restore the emergency situation.”
He said that, under the Bill of Rights, Hong Kong’s key legislation for human rights protection, only when the “life of the nation” is under threat can the jurisdiction drop the protection of basic human rights.
But he argued that police already had wide powers under the law for enforcement purposes.
“I’m not exactly sure what additional power the police need,” he said.
John Reading, a former deputy director of public prosecutions, also questioned whether police needed extra power to arrest protesters.
He agreed that the emergency order may be drafted in a way that removes legal protections normally guaranteed to protesters, for instance only being arrested under reasonable suspicion of a crime or being detained for no more than 48 hours before a charge is laid.
“With all sorts of problems, that will be worse than the extradition bill itself,” Reading said. “What about the rule of law?”
Both Young and Reading said any order should be strictly limited for a necessary purpose, or risk being found unconstitutional and struck down by the courts.
Pro-democracy lawmaker Au Nok-hin said the ordinance could bring “total destruction” to Hong Kong, as the law would be a direct challenge to the city’s capitalist system.
James To Kun-sun of the Democratic Party equated invoking the ordinance to imposing martial law on the city, adding that it would harm basic freedoms.
“It means the right to peaceful assembly will be done away with,” To warned.
As the city approached its 13th weekend of protests, Lam’s popularity again hit a record low. She scored 24.6 out of 100 marks in the latest survey conducted by the Hong Kong Public Opinion Programme between August 15 and 20.
Additional reporting by Gary Cheung and Denise Tsang
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- Hong Kong could lose foreign investment if city’s leader gives herself emergency powers to battle protesters, pro-business lawmaker warns
- Chief Executive Carrie Lam met with moderate young protesters – what’s next in dialogue process?
- Hong Kong protesters rotate tactics between radical and restrained, keeping city guessing
- Hong Kong protesters cast ‘dark day’ over city’s innovation sector by vandalising smart lamp posts, says technology chief Nicholas Yang
- Carrie Lam says Hong Kong will use legal means to tackle protests but admits stalemate caused by government’s refusal to meet protesters’ demands