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ARTICLE 19 and The Hong Kong Journalists Association
"emergency", nor that of "public danger". Indeed, there are "no defined criteria", the British government admitted in its Third Periodic Report to the UN Human Rights Committee, "for deciding when a state of emergency should be declared". However, the report continues somewhat ambiguously, the Governor in Council "would only consider declaring a state of emergency if there were either an internal threat or an external one or a combination of the two that might disrupt the essential functions of the territory".?
Once a state of emergency has been declared, the Governor in Council may then "make any regulations whatsoever which he may consider desirable in the public interest". These regulations may amend or suspend existing laws, or create new offences. They may also, according to Section 2 (2)(a) of the Ordinance, provide for
censorship, and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication.
A body of subsidiary regulations governs the exercise of these powers. These were regulations made during previous emergencies, under the authority of Section 2(1), and apparently have not yet been repealed. By remaining on the statute books, it is arguable that Hong Kong is, to all intents and purposes, still in a state of emergency, and that these regulations may be brought into operation by way of a simple gazetted order from the Governor in Council.
The actual procedures the Governor in Council should follow when laying down regulations on "censorship and control of publications and means of communication" are outlined in Part II of the Emergency (Principal) Regulations, and cover the control of freedom of expression and information quite exhaustively. They are, however, only procedural in nature and do not intentionally limit or restrain the actual scope for censorship.
Under Section 5 of the Bill of Rights Ordinance, the right to freedom of expression is one of several rights which may be derogated from in times of emergency. The intended spirit of the Bill of Rights, as it is understood from the corresponding Article 4 of the International Covenant on Civil and Political Rights (ICCPR), is that any derogation should be the minimum required in the circumstances, and should be closely circumscribed.
More importantly, aside from derogation, Section 5 of the Bill of Rights places no explicit limitations or conditions on the Governor in Council's sweeping powers to declare an emergency. The wording essentially repeats Article 4 of the ICCPR, under which it is assumed that any declaration of an emergency is to be carried out as a final resort by a
6 Third Periodic Report by Hong Kong under Article 40 of the International Covenant on Civil and Political Rights, para. 28 at 7.
7
Id. Vague reassurances of this kind camouflage the broadly repressive powers of this Ordinance, and in themselves reveal much about the administration's attitudes.
8
See Chapter 3.
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