Urgent Business: Hong Kong, Freedom of Expression and 1997
representative and accountable government. Under the Bill of Rights there can be no such presumption, however. The Governor in Council may declare an emergency at any time he thinks appropriate. Nothing could be further from accountability, nor from the intended spirit of the ICCPR.
The wide, discretionary powers of the Emergency Regulations Ordinance present an open route to China after 1997, when the SAR's chief executive, who will be approved by Beijing, will assume these powers. Since the scope for abusing this anachronistic legislation is very considerable, both after and possibly before 1997, there is therefore an urgent need for a comprehensive review. In particular, the desirability of amending the Governor in Council's discretionary and unilateral powers to include more representative checks and balances would help bring Section 2(1) into line with the intended spirit of the Bill of Rights and the ICCPR. One possibility might be to give the Legislative Council the power to approve or disapprove a state of emergency after a specified period of time. There is a need also to clarify in the law what conditions would be necessary for the declaration of an emergency.
Furthermore, the relationship between the Emergency Regulations and the Bill of Rights needs to be spelt out more clearly. Even though the government has said it would not act in contravention of the Bill it would nevertheless be desirable, for example, to include a provision in the emergency law clarifying that the declaration of an emergency, as well as its prosecution, be consistent with the terms of Section 5 of the Bill of Rights.
One immediate concern with Section 5, however, in the wording "in times of public emergency which threaten the life of the nation". As Chapter 2 of this report points out, this apparently suggests that events which threaten the life of the People's Republic of China, which after 1997 is to be the sovereign nation, would justifiably allow the declaration of an emergency in the SAR, even if Hong Kong's life is not itself threatened. This should be amended to read the "life of Hong Kong" to ensure that Section 5 may not be used as a legal justification for declaring an unwarranted emergency in Hong Kong.
4.2 OFFICIAL SECRETS AND INFORMATION
Britain's Official Secrets Act (OSA) 1989 was formally extended to Hong Kong by an order of the Privy Council at the end of June 1992, in a move which earlier the chief secretary, Sir David Ford, claimed to be a liberalization of the disclosure of official information in the territory. Prior to its extension, the 1911 version of the Act was in force in Hong Kong.
The amended OSA 1989 replaces the controversial Section 2 of the 1911 Act which forbade the unauthorized disclosure or possession of any official information, no matter how trivial. A strict interpretation of this old section could make it an offence, absurdly, even to disclose
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