Rule by decree, as endorsed by the courts

Rule by decree, as endorsed by the courts

In Oct 2019, at the height of the protests sparked off by the government’s extradition bill, Hong Kong’s Chief Executive Carrie Lam utilized the Emergency Regulations Ordinance (Cap 241) (ERO) to enact a law banning people from wearing masks in public assemblies (no, it did not age well)

Extract of the anti-mask law
The “anti-mask” law (still in force throughout the pandemic!)

The colonial-era ERO is sweeping and virtually allows the CE to rule by decree in a situation of emergency or public danger.

Provision in the Emergency Regulations Ordinance
Provision in the Emergency Regulations Ordinance

The democratic lawmakers argued the ERO was not constitutional: a) lawmaking power should be held by the legislature instead of the executive, b) such sweeping power was inconsistent w human rights protections, or c) was too vague.

These arguments were partially accepted at first instance (HCAL 2945, 2949/2019).

However, the Court of Final Appeal dismissed all these arguments (FACV 6-9/2020). The ERO remains intact.

Why talk abt this now? Because this judgment by the Hong Kong top court, including a former UK Law Lord, enabled the latest emergency regulation (Cap 241N) [issued in March 2022] whereby the Chief Secretary can bypass ANY statutory requirements.

Extract from the latest emergency regulation (Cap. 241N)
Extract from the latest emergency regulation (Cap. 241N)

The Hong Kong government has now allowed PRC doctors to practise in HK without a HK license. It is still unknown what procedures apply in the case of misconduct or negligence. NowTV issued a public apology after their journalist so much as asked about this.

What remains of the rule of law if the CE can bypass any law in HK when she deems it to be an emergency? and: whatever next?

Consider the scope of potential exemption under Cap 241N: How many officials operate powers/ duties only when qualified or hold authority which requires compliance with law, discipline or other standards? The police? ICAC? Others with powers of entry and seizure of property?


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