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FAR EASTERN ECONOMIC REVIEW January 9, 1969
given a further chance to appeal to the Committee of Review". Moreover, according to the Governor, "the law requires that the detainees be released when they are no longer considered a security threat”.
The authorities maintain that the power has been used "with the greatest moderation, bearing in mind the scale and severity of the events of 1967. At the height of the trouble the maximum of detainees ever in custody was 54, which compares very favourably with the similar measures other governments have found necessary when subjected to similar but certainly no more dangerous or violent situations". The Government is the only body in a position to judge when the emergency is over and release of the detainees possible. Until then the regulation cannot be repealed. The situation is regularly reviewed; "too carly a revocation.
may under. mine inuch of the stability which the reasonable use of them has helped to restore." Finally, all the people who have been detained were “openly and deeply involved in the violent ac- tivities". The law-abiding have 110
fear the Emergency Regulations,
reason 10
That seems to be a fair summary of the case for the Crown. How do the Government's ́critics meet the ad- ministation's arguments in defence of Regulation 317 The Government's dilemma is admitted. The authorities were under a clear duty to try to deal with subversive clements behind the overt violence. However, it is the form of the powers taken which is crucial. It is not an end of the argu- mem to admit that there may be times when the full trial procedure may have to be by-passed. The concept of the Rek of Law is satisfied if the executive takes no more power to deal with a situation than is necessary and if as many safeguards against error and abuse are built in as is consistent with effective action. In a time of war, such as Hongkong faced in December 1941, those safeguards will be minimal. The fact is, however, that Defence Regulation 18(1) intro- duced in 1940 was less sweeping in its terms than the present Emergency Regulation 31. In practice, these safeguards were reduced as a result of a case in the House of Lords, (Liversidge v Anderson). Although the communist disturbances were serious, it is unwarranted to say that conditions in 1967 were on a par with 1941. As the Hongkong Government's 1967 Annual Report states: "The ordinary life of the Colony has not been disrupted. The rioting that has taken place has been limited in area and in scope and has been con- tained."
Critics of the Government go on to argue that although Regulation 31 has been on the statute hook since 1949, it was not brought into force until July 27, 1967, a fortnight after the Acting Colonial Secretary's "grasp the initiative" speech. This explains (though does not justify) the lack of attention previously paid to it.
A
The Government's plea that the usual trial in open court is inappropriate in an emergency misses the point. judicial tribunal sitting in camera where necessary, as the. courts can do when trying cases under the Official Secrets Ordinance which also involve questions of national security
with modified rules of procedure and evidence would be fully consistent with the Government's need for effective, rapid administrative action. There seems no reason to sup pose that the judiciary is so unmindful of the exigencies of an emergency situation that they cannot be trusted to evaluate, on evidence presented to them by the Crown and, tested by the detainee, whether or not the detention of a particular person is desirable, the burden of proof being placed on the
*
+
Hongkong communists take part in a recent rally in Conton: China refuses to accept extremists deported from the Colony and this has forced the Government to look for other ways to deal with those who threaten the community's security.
detaince. The importance of using a judge is that he is ac customed to evaluating evidence and he has a measure of detachment and independence. The ability to weigh evidence is particularly important where subversion is alleged and much of the evidence is likely to be hearsay and suspicion only, A case before the British courts (Knight) involving Britain's wartime regulations revealed the tenuousness of the evidence which has sufficed to secure the detention of persons in the past: in that case the "evidence" was mere malicious tittle- tattle. The trial process need not be slow and, anyway, de- tention pending trial could be permined.
Again, instead of bringing in Regulation 31 the Govern- ment could have amended the Emergency (Deportation and Detention) Regulations to cover British subjects. Although the safeguards under these Regulations are unnecessarily in- adequate, they are at least better than the gingle one under Regulation 31. The Chairmen of the Deportation and De- tention Advisory Tribunals are legally qualified (though not judges); legal representation is as of right; the final decision is for the Governor-in-Council, not one man alone; and there. is a form of trial in which the detainee can test the evidence against him, all evidence being admissible.
The Committee of Review provided for under Regula- tion 31 is a totally inadequate safeguard. It is disgraceful that, unlike under the wartime Defence Regulations, the detainee is not bound to be told sufficient of the case against him to enable him to meet it, but only so much as the Colonial Secretary may authorise. Unlike the wartime Advisory Tribunal, the chairman does not have to be legally qualified. A quorum of two could mean that the detaince is "appealing" to the Colonial Secretary and Commissioner of Police, for all we know. (The reason given for not revealing the names of the members seems quite specious.) Legal representation is not as of right. The Colonial Secretary may ignore the Committee's recommendations, so it is false to talk of a right of appeal. There seems no good reason why the tribunal's decision should not be binding; ouly it is binding can one speak of the right of appeal which a detainee undoubtedly should have.
The Government's claims about careful examination by law officers are quite valueless. I frankly doubt whether
What about the
for accurely?
$