Regulation of Emergency Powers in Hong Kong: A Comparative Study

Description

“Anti-extradition Movement” and the Covid-19 pandemic have brought alive the issue of emergency powers and their regulation in Hong Kong (HK). The HK Government has exercised emergency powers three times recently to (i) enact the Prohibition on Face Covering Regulation, (ii) suspend the LegCo election, and (iii) adopt measures to control the Covid-19 pandemic. The first two have been controversial because the constitutionality of not only those two acts but also their legal basis, i.e. the Emergency Regulations Ordinance (ERO), has been challenged before courts. The lawful exercise of emergency powers in HK is further complicated by the fact that there exist three different kinds of statutory provisions regulating emergency powers. Firstly, Article 18 of the Basic Law authorizes the Standing Committee of the National People's Congress to declare HK to be in a state of emergency. Secondly, there is broad and extensive authorization under the ERO to the Chief Executive in Council on occasions of emergency. The third is delegation under other primary legislation such as the Prevention and Control of Disease Ordinance. This project aims to examine how emergency powers should be best regulated in HK and how the existing framework on emergency powers should be reformed. It will conduct a comparative study of different models in other jurisdictions at both national and sub-national levels and in both unitary and federal states. One objective is to search for the most suitable model for HK out of four existing models and to evaluate the desirability to divide emergency powers into different tiers for better regulation. Given that judicial supervision and the LegCo’s negative vetting are the only means available, the second objective is to explore how the exercise of emergency powers should be better supervised. This project will examine how other jurisdictions supervise emergency powers and whether their experiences can be borrowed by HK. There are several angles. One is legal versus non-legal supervision. The other is ex-ante versus ex-post supervision. Both issues will be examined against the background of “one country, two systems”.  The possible answer to the first issue is that both the Basic Law and ERO need to be amended to establish a regulatory framework with a broad division of emergency powers into several tiers. The possible answer to the second issue is that both ex-ante and ex-post supervision should be established to ensure a proper balance between emergency powers and the prevention of their abuse.