PAR CASTVIA, ECONOMIC REVIEW
January 9, 1969
were reviewed and consolidated in the Emergency (Principal) Regulations. These conferred the power of detention without trial by Regulation 31(1): "The Colonial Secretary may by order under his hand direct that any person named in such order shall be detained for any period not exceeding one. year in such place of detention as may be specified by the Colonial Secretary in the order."
A detaince has no right to a trial but he is bound to be informed of his right to lodge objections against his de- tention to a Committee of Review, the functions of which are "to consider and make recommendations to the Colonial Secretary" with respect to such objections (Regulation 31(3)). The Chairman and member of the Committee are appointed by the Governor. The Chairman and one other member con- stitute a quorum (Regulation 31(2)). A detainee may ap pear before the Committee in person or, if he obtains the leave of the Committee on his first appearance before it, he may be represented by a lawyer. The detainee must be given "such information relating to the detention of the person as the Colonial Secretary may authorise” (Emergency (Com- mittee of Review) Rules, 3(2) ).
It cannot be disputed that these provisions offend the concept of the "Rule of Law". This term covers not only the doctrine that the Executive is bound by the law but also the whole body of detailed rules by which the individual is protected from errors and abuse in the exercise of govern- mental powers. In considering the application of the Rule of Law to this part of the world, a Conference of 105 jurists from 16 countries of the Southeast Asian and Pacific Region in Bangkok in February 1965 and at which Sir Michael Hogan, Chief Justice, was Hongkong's principal representa- uve, aflimed:. First that "save during a public emergency threatening the life, of the nation" preventive detention is contrary to the Rule of Law. Second, the declaration of any such emergency should forthwith be reported to the Legisla ture for ratification and it should be for a specified limited time (not exceeding six months), any continuation beyond, which should be cffected "by the Legislature only after care- ful and deliberate consideration".
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Third, the Executive should during such emergency take "only such measures as are reasonably justifiable for the pose of dealing with the situation which exists". Fourth, legislation should provide the individual with safeguards against continuing arbitrary confinement by requiring a prompt and administrative hearing and decision, with a right to judicial review, upon the need and justification for deten- tion and with a right to representation by counsel at all stages. Fifth, the period of detention should, except in time of war, be effective only for a limited and specified time not exceed- ing six months. Sixth, the detainee should forthwith be supplied with particulars of the grounds of his detention. These recommendations are an instructive measure of what Asian jurists feel is tolerable in times of national emergency.
What is the justification for Regulation 34? I is only proper in state the case for the right to arrest and detain individuals without trial fully and fairly. The arguments in support of the use of Regulation 31 may perhaps be ration- alised, in a way their proponents have hardly attempted, as follows, It is the duty of any government to protect its territory and to protect its people from the violent attacks of a minority. During 1967, the communist minority made a concerted assault on the way of life of the non-communist majority in which the use of violence resulted in the loss
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of 51 lives (including 10 police, one soldier and one fireman). In such circumstances, any government is faced with a choice, in the words of one correspondent to the press, "to stand on principle and possibly to lose freedom, or to waive the ap plication of the principle temporarily" in order to survive.
Those who defend the Regulation go on to argue that the weapon it had to hand was a regulation which had been lying, uncriticised, on the statute book for nearly a decade. While the emergency is on is no time to object to it. Regulation 31 is necessary because the full trial process is inappropriate for dealing with subversive elements. A trial is for determining whether or not a person has committed a specific offence, whereas here what is required is a power to put out of harm's way people whom the Government rea- sonably suspects, on the information it has, are about to act prejudicially to the Colony's security. This is a matter for the executive, not for judges. Moreover, the trial process is slow, and it involves publicity which would endanger Govern- ment's sources of information. Finally, the rules of evidence are inappropriate where action is being taken on what is merely justifiable suspicion.
It is also stated in defence of the Regulation that the procedure under the Emergency (Deportation and Detention) Regulations is also inappropriate in circumstances like those of 1967 for it applies only to aliens, and it was not "thought right to apply different laws and procedures to those implicated in [1967's] events because of their nationality". In respect of alicos, the Government is in a uniquely difficult position in that China will not accept the return of its deported nationals, taking the view, apparently, that Hongkong being Chinese soil deportation is inappropriate and unacceptable,
Criticism of Regulation 31 has also been countered by claims that there already a safeguard in that the detainees have "a chance to appeal to an independent Committee of Review", though the names of the members of this Com- mittee cannot be revealed "because to do so would expose them to unnecessary personal risks". One member, however, is a lawyer. Before detention orders are made, all cases are "carefully examined by law officers" initially, and subsequently are "regularly reviewed with a view to release as soon as secu- rity conditions warrant. Detention orders are for one year, and many detainees have been released before the year was up. One has been redetained for good cause for one year and
Tang Ping-ta (third from right) was originally arrested under the Deportation of Aliens Ordinance and then hold under Emergency' Regulation 31 which offered him considerably less opportunity to state a case against his detention,
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