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5. LIMITING DEROGABILITY
The public emergencies section of the Bill of
Rights, Part I, Section 5, mirrors the requirements of
Article 4 of the ICCPR by limiting the possibility of derogating from certain guaranteed rights set forth in the Covenant. The limitations placed on derogation in both the ICCPR and the Bill of Rights include the need for official proclamation of an emergency, measures taken only to the extent strictly required by the exigencies of the situation, and an absolute prohibition on derogation of certain specified rights.
While the language of Section 5 of the Bill of Rights closely follows that of Article 4 of the ICCPR, it is necessary to consider application of the public emer- gency exception after 1997 to the Hong Kong SAR. Article 18 of the Basic Law provides in pertinent part:
In the event that the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant na- tional laws in the Region.
At a minimum, reading Article 39's Covenant protections consistently with Article 18 of the Basic Law would require: (1) an official proclamation by the PRC
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