If Carrie Lam declares an emergency in Hong Kong, she will be defying the rule of law

The Basic Law does not give Hong Kong’s chief executive the power to ‘officially proclaim’ a state of emergency

The city’s leader therefore has no lawful power to make emergency regulations that would comply with Hong Kong’s international treaty obligations and own bill of rights

4-MIN READ4-MIN

Demonstrators link hands as they gather at the Hong Kong Space Museum in Tsim Sha Tsui on August 23. At least 210,000 people joined human chains on both sides of Victoria Harbour on the day, in a gesture of support for the demands of Hong Kong protesters. Photo: AP

Erik ShumandWing Kay Po

Published: 6:30am, 4 Sep 2019Updated: 6:34am, 4 Sep 2019

The public is anxiously awaiting definitive news as to whether the government will indeed invoke the long-dormant but draconian Emergency Regulations Ordinance to enact measures to quell the political unrest.

So, it is worth reviewing whether, from a constitutional perspective, the ordinance is indeed a “legal means” which the government has at its disposal to deal with the present circumstances, as Chief Executive Carrie Lam Cheng Yuet-ngor has claimed.

The ordinance gives the Chief Executive in Council sweeping powers to declare regulations and implement measures which abrogate the basic rights of citizens, such as the right to publish and the right to assembly. But there are serious questions as to whether it is consistent with the constitutional instruments in Hong Kong and, hence, is constitutional.

It is also highly doubtful whether the Chief Executive in Council has the power to declare a state of emergency and lawfully make emergency regulations under the ordinance.