[明報], Editorial：Invocation of Emergency Regulations Ordinance — an ill-advised move

【明報專訊】AS violent incidents are on the rise, now the focal centre of interest is whether the government should invoke the Emergency Regulations Ordinance. While the ordinance grants tremendous power to the chief executive to allow her to "stop violence and curb disorder", it would also deal a heavy blow to society if invoked.

The Emergency Regulations Ordinance is a law that can be traced back to the colonial era. It was enacted by the British colonial government following the mass strike by seamen in 1922. Half a century later, amid the "1967 riots", the British colonial authorities invoked the related regulations to "maintain stability" in society. In early 1997, the Standing Committee of the National People's Congress decided that the related regulations were not in contradiction to the Basic Law, so they were preserved and became law in the SAR.

According to the Emergency Regulations Ordinance, on any occasion which the chief executive in council may consider to be an occasion of emergency or public danger she may make any regulations whatsoever which she may consider desirable in the public interest. Such regulations may provide for arrest, detention, exclusion and deportation. When asked by journalists whether she would invoke the Emergency Regulation Ordinance to deal with the ongoing crisis, Carrie Lam said that the SAR government was still confident that it was able to handle the social discord on its own, and that the best basis for action was the rule of law. She said that the government had a responsibility to look into every Hong Kong law that could provide a legal means to stop violence and curb disorder, and that the principle of the rule of law would be upheld in everything it did. Hong Kong is in turmoil, and violent incidents are on the rise and have to be stopped as soon as possible. It is better for the SAR government to handle the matter itself than for the central government to deploy the People's Liberation Army. But in fact, invoking the Emergency Regulations Ordinance will also be a radical move. If such a "nuclear option" is taken, it will deal a very heavy blow to Hong Kong. Such an action must not be taken rashly.

The Emergency Regulations Ordinance is an extremely draconian law. Like the colonial governor in the past, the chief executive can invoke the ordinance and, citing the need to safeguard the public interest, promulgate regulations to exercise censorship of publications and communications; exercise control of transportation by land, air or water as well as trading; take possession or control of any property or undertaking; require persons to do work or render services; suspend the operation of any enactment; and apprehend anyone until the chief executive in council announces the repeal of the regulations. Theoretically a ruler using all such power can become an absolute dictator.

No doubt the existence of a legal tool does not necessarily lead to the unlimited exercise of power. While the ordinance confers considerable power on the government, the final decision as to whether and how to invoke the ordinance rests with the chief executive. A member of the executive council has said that similar laws have been used in foreign countries to handle specific issues, and such experience can be referred to. A common example is the use of the ordinance to lengthen the time the police can hold a person in detention, while the authorities may also combat fake news on the internet by virtue of the ordinance. However, judging from the social atmosphere today, the ordinance might not be a panacea for the purpose of "stopping violence and curbing disorder".

明報社評 2019.08.28：實施《緊急法》乃下策 須評估香港能否承受

暴力事件愈演愈烈，政府應否引用《緊急情况規例條例》（下稱《緊急法》），成為關注焦點。《緊急法》賦予行政長官極大權力「止暴制亂」，可是對社會的衝擊也很大。

《緊急法》是殖民地時代法律，1922年香港海員大罷工，港英政府通過相關法例，半世紀後的「六七暴動」，港英當局曾引用有關條例「維穩」。1997年初，全國人大常委會認為有關條例並無牴觸《基本法》，得以保留下來成為特區法律。

根據《緊急法》，倘若香港出現緊急情况，又或危害到公共安全，行政長官會同行政會議，可以訂立任何認為合乎公眾利益的規例，包括逮捕、羈留、驅逐及遞解離境等。有記者問行政長官林鄭月娥會否動用《緊急法》處理危機，林鄭表示，港府仍有信心自行處理社會紛爭，最佳的處理基礎是以法治為本，所有香港法律，如果能夠提供法治手段止暴制亂，政府都有責任檢視，一切依法辦事。香港動盪不安，暴力愈演愈烈，必須盡快遏止，由特區政府自行處理，總比中央介入出動解放軍為佳，然而引用《緊急法》其實也是「非常手段」，一旦採用這個「nuclear option」，對香港也會帶來很大衝擊，不能輕率行事。

《緊急法》是非常「辣」的法律。無論是昔日的港督，還是現在的行政長官，均可引用《緊急法》，以維護公眾利益為由頒布規例，審查刊物和通訊內容、管制海陸空交通運輸和對外貿易、沒收或取得任何財產和業務的管有權控制權、規定某些人進行工作或提供服務、暫停實施任何成文法例，以及逮捕羈留任何人，直至行政長官會同行政會議宣布撤銷規例為止。理論上，執政者用盡這些權力，絕對可以當一個獨裁者。

當然，法律工具的存在，不等於一定出現有權用盡的情况。《緊急法》賦予當局極大權力，至於用與不用、怎樣使用，仍要視乎政府首長的決定。有行政會議成員稱，外國也會引用類似法例處理特別問題，經驗可作參考，其中一個較常見例子，是引用《緊急法》立法去延長警察拘人的拘留期，另外當局亦可根據《緊急法》頒令打擊網上虛假新聞消息。可是以當前社會氛圍，《緊急法》未必是止暴制亂的萬靈丹。

■Glossary
discord：disagreement; arguing

draconian：(of a law, punishment, etc.) extremely cruel and severe

promulgate：to announce a new law or system officially or publicly

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