The Basic Law establishes a clear separation of powers between executive and legislative branches. A law that allows the Chief Executive to make laws appears unconstitutional. We expect a judicial review if she tries it. Even if she succeeds, draconian laws don't address the root problem: a deficit in democratic accountability for both the CE and LegCo. We again propose local legislation to scrap corporate voting and democratise the system.

Making laws via the ERO may be unconstitutional
4 October 2019

In our analysis "The most likely outcome for HK" (3-Sep-2019), we noted that one of the 3 methods that might be employed in an authoritarian crackdown is to invoke the Emergency Regulations Ordinance (ERO), enacted in 1922 and not used since 1967, which purportedly allows the Chief Executive of HK (CE) to rule by decree, passing laws without the Legislative Council (LegCo).

We have now reached the beginning of that process, with news that the CE will today consult her Executive Council on a plan to invoke the ERO to pass an anti-mask law. We will set aside for now the question of whether an anti-mask law itself would be constitutional even if passed by LegCo, given the impact on freedom of speech and assembly of those involved and their legitimate wish to avoid retaliation by employers or businesses or to travel freely to the mainland after peacefully expressing their views.

There is a much bigger issue at stake. The ERO has never been subject to a judicial review, and since 1-Jul-1997, it has been subject, like all laws, to our mini-constitution, the Basic Law (BL). The BL establishes a clear separation of powers between the executive and legislative branches of Government. The CE can propose laws, but the power to enact them is reserved for LegCo. The CE's power to propose laws is in BL Article 62(5):

"The Government of the Hong Kong Special Administrative Region shall exercise the following powers and functions:
(5) To draft and introduce bills, motions and subordinate legislation;"

While LegCo's power to pass laws is in BL Article 73(1):

"The Legislative Council of the Hong Kong Special Administrative Region shall exercise the following powers and functions:
(1) To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures;"

But section 2(g) of the ERO purports to bypass LegCo as follows:

"such regulations may provide for
(g) amending any enactment, suspending the operation of any enactment and applying any enactment with or without modification;"

The ERO is so broad, allowing CE to "make any regulations whatsoever which he may consider desirable in the public interest", that it amounts to a transfer of powers which the BL does not contemplate. As such, the ERO may be void because it is unconstitutional: no local law can breach the BL. We hope that if the CE seeks to make laws under ERO, then the HK Bar Association and others will urgently launch a judicial review (JR) and in the meantime seek an injunction to suspend the purported law until the JR can be held. The courts will normally grant an injunction if it can be shown that the action involved would cause irreperable harm that cannot be redressed with monetary damages. The deprivation of liberty for those arrested under an unconstitutional law would probably qualify as irreperable harm.

The Government would likely argue that "regulations" made under the ERO are "subsidiary legislation" that may eventually be vetted and overturned in LegCo. It said so in paragraph 43 of a 1999 submission to the United National Human Rights Committee. However, that doesn't address whether the ERO is unconstitutional because of its sweeping legislative powers. It completely reverses the due process of consultation, deliberation and passage of laws.

HK has plenty of laws that do allow the CE to make specific regulations subject to LegCo vetting - for example, to change the (anti-competitive) caps on the number of licensed taxis or private hire cars. These are in effect powers delegated by LegCo. But a general law that allows the CE to make any law disguised as a regulation on the grounds of "emergency or public danger" goes far beyond this.

Incidentally, on the possibility of anti-mask legislation, on 29-Mar-2017 the Government told LegCo:

"For the Government to enact any new legislation or amend existing legislation, it must prudently look into and carefully consider the various potential impacts that the law may bring. We note that some countries in Europe and America have enacted similar legislation. We are now exploring the issue, including the specific provisions of relevant law overseas, their legislative background, scope of regulation, accepted exceptions, previous decided cases, verdicts and sentencing, and how they strike a balance between the legislative intent and issues like personal privacy and other rights. As the issues involved are complex with far-reaching impact, the exploration is still ongoing. We will continue to listen to the views of various sectors of the community on this matter."

The beginning of a crackdown

If the ERO is invoked and not challenged, or if a JR fails, then this may be the beginning of a draconian crackdown. The ERO could be used again to legalise internment for long periods rather than the current catch-and-bail pending trial, which is based on the presumption of innocence until proven guilty. It could also be used to block key parts of the internet, including social media and communication apps, or to censor the media generally and prohibit reporting of protests.

Fix the real problem

An anti-mask law does nothing to address the "democratic deficit" at the root of the problem - the fact that corporate voting entrenches the tycoons as proxies for Beijing control and requires the HKSAR Government to place the interests of Beijing and the tycoons ahead of the public interest. We again urge the HKSAR Government to address this by tabling legislation to abolish corporate voting and replacing it with workers' votes in each of the relevant sub-sectors and constituencies, with Election Committee seats allocated to each sub-sector proportionate to the number of electors, thereby democratising HK via local legislation, without disturbing the BL and without needing the explicit consent of Beijing.

The 1200-member Election Committee would then function like the US Electoral College that elects the President, and the "Functional Constituencies" in LegCo would at least become functional with broader electorates, something which various professions including doctors, accountants, teachers, lawyers and engineers already enjoy. The tycoons, in our view, will accept this legislative change if it avoids a crackdown that would do more harm to their rent-seeking economic interests. They will still have economic power, just not direct political power.

©, 2019

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