The constitution, basic law or other laws of any country or self-governing territory give its administrative head, be it a president, prime minister or chief executive, emergency powers for dealing with emergency situations such as natural disasters, social disorder or invasions. A state of emergency might be called martial law, military law or various other terms, but there is not much difference when it comes to the dictatorial nature of such powers.
The crisis in Hong Kong shows no sign of abating. Rumor has it that after the Chinese Communist Party (CCP) leaders’ annual Beidaihe meeting ended on Aug. 16, CCP General Secretary Xi Jinping (習近平) remarked, with regard to Hong Kong: “Whoever caused the trouble will have to fix it.”
Evidently, he does not want to take the blame for the unrest or anything that goes wrong when trying to quell it. No matter who should take responsibility, the person under the highest pressure is certainly Hong Kong Chief Executive Carrie Lam (林鄭月娥).
Commentators originally expected that the Beijing government would dispatch the People’s Liberation Army or the People’s Armed Police to resolve the Hong Kong problem based on the relevant articles of Chinese laws governing the Hong Kong Special Administrative Region, namely articles 6, 14 and 29 of the Garrison Law and Article 18 of the Basic Law.
This threat was brought to the fore in 2017, when then-Chinese Ministry of Foreign Affairs spokesperson Lu Kang (陸慷) stated that the 1984 Sino-British Joint Declaration on Hong Kong was just a historical document. These conditions would make it relatively easy for China to renege on the promise that it made in the declaration to maintain “one country, two systems” in Hong Kong.
Many members of the international community have expressed their concern about the situation in Hong Kong, and on Aug. 26, G7 leaders issued an end-of-summit statement in which they reaffirmed the “existence and importance” of the Sino-British Joint Declaration.
Also during the past few days, an old law dating from the days of British colonial rule over Hong Kong has come to the fore, namely the Emergency Regulations Ordinance, which allows Hong Kong’s “chief executive in council” — originally meaning the British governor — to exercise dictatorial powers.
This ordinance was enacted in 1922, at a time of destitution and social unrest after the end of World War I, when Hong Kong was hit by a seamen’s strike that had the support of then-president of the Republic of China Sun Yat-sen (孫逸仙) and his military government in Guangzhou.
The strike paralyzed Hong Kong’s sea transport, and after the British governor imposed martial law, it grew into a general strike by 100,000 workers, three of whom were shot dead in the Sha Tin massacre. The strike eventually ended after the British consul-general in Guangzhou stepped in to negotiate.
The 1922 seamen’s strike was followed by the Canton-Hong Kong Strike of 1925–1926 and a wave of other strikes in various parts of China. To be sure, Beijing does not want a similar chain reaction to happen again.
The 1922 Emergency Regulations Ordinance gave tremendous powers to the chief executive, who was then the governor. These include the power to amend or suspend existing laws, take control of people, things and land, appropriate property and search premises, and even to unilaterally impose any penalty or sanction short of the death penalty.
Section 2, Subsection 3 of the ordinance further states: “Any regulations made under the provisions of this section shall continue in force until repealed by order of the Chief Executive in Council.”
This ordinance was enacted a long time ago, and has since been amended nine times, reflecting the major changes that have taken place in Hong Kong over the years.
Notably, it has been amended since the UK handed Hong Kong back to China in 1997, showing that both the UK and China have continued to recognize the validity of the ordinance.
If Lam assumes dictatorial powers based on the Emergency Regulations Ordinance, rather than the Basic Law or the Garrison Law, the UK, as the originator of the ordinance, might find itself in an embarrassing position.
It would also be awkward for Beijing, because it would mean that China recognizes the legitimacy of the legal system of British-ruled Hong Kong, which is part and parcel of the “two systems” aspect of the “one country, two systems” formula.
Any political solution for Hong Kong’s current predicament must involve concessions by Beijing, but Xi seems to be shrugging off the problem. That is how it looks, but could his attitude really mean that a “hardline solution” is in the offing?
HoonTing is a political commentator.
Translated by Julian Clegg
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