14
S.C.M. POST, SATURDAY, NOVEMBER 16, 1968
L、 cers to the Editor
THE EMERGENCY REGULATIONS
Sir,
in the Thursday, November 14, issue of the South China Morning Post you gave prominence to Government's statement commenting on Mr John Rear's letter published in the London Times.
It seems to the Bar Com- mittee of the Hongkong Bar Association that the statement in no way refutes the point. made in Mr Rear's letter; it merely brings into prominence the inconsistency in Govern- ment's attitude on the Emer- gency Regulations that Mr Rear has attacked.
Mr Rear's point seems simple enough: the Hongkong Govern- nient has at present totalitarian powers over the
of people Hongkong in the form of Emer- gency Regulations and in par- ticular Regulation 31 of the Emergency (Principal) Regula- tions which permits the Colonial Secretary to detain any person for a period of up to one year without trial, without express- ing any reasons, without having There is no re- any reasons. quirement for the detainee to be given any reasons for his de- tention.
At the expiration of one year the detention could be forth- with renewed. Government has, as we know, used these totalitarian powers SO that to this day (nearly a year after the Emergency has ended) we are told that there are still some 40 or 50 persons under detention. As long as this state of affairs prevails in Hongkong it lies ill for the British Government to complain that British subjects in China have been detained without trial
The powers which the Hong- kong Government have at pre- sent over
the the liberty of of people Hongkong are as absolute as have ever been de- vised in the history of de- mocratic Government. The fact that the powers have, as we are informed, been used with dis- cretion does not make the ex- ercise of such powers anymore lawful which,
Bar as the Committee understands it, is precisely the point made in Mr John Rear's letter
In taking issue with Mr Rear, Government states that while "detainees have never been publicly accused they have nevertheless all been accused
and their cases were most care- fully examined by law officers before Detention Orders were issued". The Bar Committee views with some alarm the fact that Government seems to think that bland assurances of this 3ort could be a substitute for the rule of law. The evil of the Emergency Regulations is that it leaves it to the benevolence of Government to observe the basic principles of the rule of law without making it a legal requirement.
If it is indeed the intention of Government that detainees should be told what accusations have been made against them and should have their cases "most carefully examined by law officers", then it is not beyond the ingenuity of the Legal De- partment so to frame the Emer- gency Regulations that the basic rules of natural justice are re- quired to be observed before Detention Orders become law- ful.
а
The very fact that the Regu- lations are not framed in this way tends to suggest that Gov- ernment reserves to itself complete discretion to act with- out legal restraint of any sort and the citizen is left with better safeguard than the hope that the -Colonial Secretary might exercise his powers bene- volently.
no
Government's statement makes the further point that "detainees have all had a chance to appeal to an independent committee of review". It is not clear whether the statement refers to the Com- mittee of Review constituted
under
the Emergency Regula- tions or some other committee which the Colonial Secretary has constituted. If it refers to the former then the statement is a misrepresentation of the provi- sions of Regulation 31 of the Emergency (Principal) Regula. tions and of the Emergency (Committee of Review) Rules made thereunder. Government's statement refers to an "indepen- dent Committee of Review". Under the Emergency Regula- tions the Chairman and Mem- bers of Sub-Committee are ap- pointed by the Governor: The appointments are not gazetted and the identity of the Commit- tee has never been made public. The Committee is not an appel- late body and cannot act as such; its functions are merely to make "recommendations" to the Colonial Secretary if any de- tainee objects against a Deten- tion Order. The Colonial Secre- tary is perfectly at liberty to re- ject its "recommendations"
The
in last point made Government's statement is that Detention Orders are for one
suggesting thereby year, there is some terminal point beyond which the powers of the Colonial Secretary to order the detentior. of а person must come to an end. This is simply not the case. Although Regu- lation 31 authorises detention for one year there is nothing to prevent the renewed detention of a person simultaneously upon his release thereby in effect making the detention perpetu- ally renewable from year to year
that.
it seems to the Bar Com- mittee that whilst there is every justification for Government to in assume Emergency powers times of emergency, attempts by Government to justify the in of those exercise
powers terms of regularity when the Emergency has passed must give cause for great concern. If it is Government's intention that persons be detained on charges political grounds on being laid and "their cases being most carefully examined by law officers" then legal pro- visions can and should be made to this effect. If Government's attitude is that such provisions are no longer necessary cause the Emergency has passed then the Emergency Regulations ought to be repealed forthwith. It would, of course be open to Government to reintroduce the Emergency Regulations if a fur- ther Emergency should and the circumstances ranted such measures
best of reasons for so doing. He nowhere denied the need which you emphasised for "strong action for the sake of the com- munity's survival". Surely his point is that in the sheer arbi- trariness with which both the Chinese and the Hongkong au- thorities act in these matters there are enough parallels to make it very difficult for the latter to lay claim to the mono- poly of civilised, legalistic proce- dures that the British official statements have implied.
For some 200 years it has been the more or less consistent policy of British Governments to ad- vance the legal standards of in- ternational behaviour, and it is in a large measure due to British efforts over this period that there is now a clear rule of inter- national law to the effect that the imprisonment of aliens with-
of the advantage
proper judicial proceedings or .ights of appeal constitutes a wrongful denial of justice. This elemen- tary rule of law, known to every first year law student, has been upheld in dozens, if not hun- dreds, of judgments of inter- national courts and arbitration tribunals.
out
the Whether from
point of negotiations with China or from point of view of Britain's the posture generally, it seems, to say the very least, unfortunate that Her Majesty's Government should be put in the position of being unable to live up to the ordinary standards of inter- national behaviour simply be- cause of the unnecessarily crude and arbitrary nature of the powers of detention exercised by the Hongkong Government.
Us
The Government statement which you publish in part this
does morning (Nov 14) little to reassure
on this
The point.
Government Information Service, of course, does not consist of lawyers, and we must therefore hope for a better informed review of the position from the Attorney- General at some stage. Some points made by the Government statement call for immediate comment, however.
In the first place, the fact that the detainees were accused in
that private and be-
their cases "were most carefully examined by law officers before detention orders were issued" is no sub- stitute for the determination of facts by a proper judicial body. Any determination by Govern- ment officials can only result in the Government as a whole be- coming prosecutor, judge and jury in its own cause, contrary to one of the cardinal rules of national justice.
arise war-
The editorial in the S.C.M. Post on Monday, July 31 1967, stated: "The Regulations will have to be rescinded - indeed public opinion will see to it as soon as circumstances warrant their withdrawal." The same editorial further stated: "The real motives behind the Emer-
be in gency Laws should
no danger of being misinterpreted abroad if reports sent overseas are not distorted ΟΙ grossly exaggerated." Government's statement is intended. as re- futation of points raised in a letter published overseas: reflects an attitude to the Emer- which the gency Regulations Bar Committee finds unaccep- table.
HENRY LITTON, Secretary, Hongkong Bar Association.
Ill - considered
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The statement says: "Thirdly, detainees have all had a chance to appeal to independent committee of review; Mr Grey has had no chance to plead his Yet case before any authority". the
Mr Solicitor-General, Sneath, in a letter to the Hong- kong Bar Association (published in the Association's Annual Re- had this to say port for 1967) about the committee of review: "I do not see this Committee as an appellate body standing over the it
Colonial Secretary, and exercising some form of judicial function.
I On the contrary, consider that the functions of such a Committee are exclu- sively administrative and ad- visory, not supervisory". So much for any form of appeal.
Both your editorial and the Government statements fall into the trap of assuming the truth of facts which have not been established by any form of judicial procedure, and then arguing from that' assumption that judicial safeguards are un- necessary. Does the Hongkong Government have so little faith in the Colony's Judiciary that it cannot leave it to the judges to establish the soundness, in fact and in law, of the case against the detainees, bearing in mind the Government's
pro-
Sir,-Now that the full text of Mr Rear's letter is available here, it becomes clear, as one suspected, that your editorial, like the ill-considered Govern- ment statement which followed hot on its heels, missed the es- sentially simple point that Mr Rear was at pains to make.
Mr Rear did not in any way condone or excuse the injustice of Anthony Grey's detention, nor did he suggest that those res- ponsible for incarcerating Hong- kong's detainees had any but the
cancer
of
fessed confidence in the strength of that case? It is surely not beyond the wit of the Legal De- partment to frame legislation that would cover the needs the community for the deten- tion of undesirables while allow- ing some form of judicial pro- ceeding, in private if necessary, to determine the applicability of such legislation to particular
cases.
It casts no aspersion whatever on the police or other respon- sible authorities to press
for judicial safeguards in matters of this sort. Policemen are police- men, civil servants are civil ser- vants, and judges are judges, and it may be assumed that they are all best left to do their own jobs. If legal standards are to be maintained here, then some form of judicial review, minimum, must be introduced
the into
present emergency legislation.
as a
Until some closer approach to the rule of law is made, the characterisation by the Govern- ment of its detainees can only appear highly subjective in the eyes of the world, for there is no independent and respected tribunal which can give us any assurance that some of the detainees are not as innocent as Mr Grey. Over-reactive com-
the GIS ments from
or from yourself scarcely correct this state of affairs. Meanwhile, to expect the Chinese to apply legal standards which we have long preached (indeed, the need for our kind of legality in this one of part of the world was our stated reasons for wanting Hongkong in the first place) while not really practising themselves, if not hypocrisy, something indistinguishable from it.
A. R. DICKS. Moral courage
is
Sir,-1 refer to the John Rear's letter which appeared in The Times.
Detention without trial is al-
the* ways adhorrent, whatever country. Really, it is authority's way of saying "we know he did wrong but we lack concrete evidence. Therefore we cannot charge him with any specific offence. Let's side-track the court and jail him anyway.
more
I admire John Rear's obvious moral courage and sincerity, but I feel at this stage in Hongkong's political development he would have served both Left and Right beneficially by showing diplomacy and remaining silent. "Gently, gently" should be the attitude now. Employers and employees are working in har mony and together gradually im- proving the working masses living conditions, under the tiller-hand of Government.
Why then re-stoke the fires of discontent? I feel the Hong- kong disturbances will prove to be a blessing in the long-run. Government was stirred from complacent lethargy, the result being a new desire to improve wages, working hours, social benefits, etc.
When I thought Government was indifferent, I went in "boots and all" for improved living standards for the people.
Government is performing a very complex job at the moment with a great sense of respon→ sibility despite John Rear's sin- cerity, his letter may rock the
of boat and nullify much the progress achieved since the dis- turbances.
John Rear would achieve much more for Hongkong if he campaigned for the return to normal employment of detainees when released and also for the re-admittance of strikers back into the work-force of the Colony. After all, thousands of workers unemployed debarred are potential resentful trouble- makers like ex-convicts who gain no employment because of their criminal records. Frus- trated, they return to crime.
JOHN R. STEVENS.
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