74
given a further chance to appeal to the Committee of Review". Moreover,
according to the Governor, "the law requires that the detainers be
released when they are no longer considered a
security threl".
The unhorities maintain that the power has been used "with the greatest
sandcration, bearing in unind the scale and a verity of the events of
1967. At die height of the trouble the maximum of detainees ever in
custody was 51, which sumpates very favourably with the similar measures
other governments have found necessary when subquted to similar but
certainly no more dangerous or violent situations". The Government is
the only body in a position to judge when the camergency is over and
release of the detainees possible. Until then the regulation cannot be
repealed. The situation is regularly reviewed; "to early a revocation
may under. mine much
of the stability which the reasonable use of them fas helped to
restore."-Finally, all the people who have been detoned were "openly and
deeply involved in the violent ac nyines". The law-abiding have ∎ it
to fear the Pony Kaş
olanons.
Teat socans to be a fair summary of the case for the
· | Floar do the Government's cruth. meet the ade namiru dian's angunuas
in defence of Regulation 317 The Dako anikaent's dilepanu is addouitted.
The authooties were woke a dear duty to try to deal with subversive
clements Felhund the overt viclence. However, it is the forra of the
powers taken which is crucial. It is not an end of the argu- bache to
admit that there may be times wlan the full trial proksilny may have na
be bypassed. The concept of the Bakal Lawas stoked if the executive
raki, no more power nod af with a station 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 fred in
December 1941, those safeguards will be minimal. The fact is, however,
that Defence Regulation 15(1) intro- dured in 1910 was less sweeping in
its terms than the present Funergency Regulation 31. In practice, these
safeguards were reduced as a result of a case in the House of Lords,
(Livuosidge v Auderson). Although the communist disturbances were
serious, it is unwarranted to say that conditions in 1967 wire on i par
with 1941. As the Hongkong Government's 1987 Annual Report states: "The
ordinary life of the Colony la. not been disrupted. The rioting that has
taken place. has been limited in area and in scope and has been con.
Lined."
Critics of the Government go on to argue that although Regolatun 31 has
been on the statute book since 1949, it was not brought into force until
July 27, 1967, a fortnight after the Acting Colonial Secretary's "grop
the initiative" qool. This explain (though does not justify) the hack of
attcution previously paid to it.
J
The Government's plea that the usual trial in open court i.
inappropriate du au Omergency mines the point. A aland nikenal sating
out camicia where Bocessary, as the amara em do who trying cases under
the Oriol Secrets which also involve questions of national sturny with
mouthed rules of procedure and evidence would be fully consistent with
the Government's need for effective, rapid administrative action. There,
seem, 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, un evidence presented to them by the Crown and tested by the
detaizce, whether or not the detention of a particular person is
desirable, the burden of proof being placed on the
PAR CÂNTEAN Economic REVIEW January 9, 1969
Hongkong commurists take part in a recent rally in Conton; China réfutes
to cecept extremists deported from the Colony and thus has forced the
Government to look for other ways to deal with those who threaten the
community's security.
detsince. The importance of using a judge is that he is be customed to
edasting 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 suffices to secure the detention of persons in the past: in
that case the "evidence" was mere malicious tiule. tattle. The trial
process need not be slow and, anyway, de- tention pending trial could be
permitted.
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 alene; and there is a form of wish 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
nadequate safeguard. It is disgraceful that, unlike under the wanine
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
Culonial Secretary may authorise. Unlike the wartine Advisory Tribun),
the chalman 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 suecious.) 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 scents no good reason why the tribunal's decision should
not be binding, only it it is binding cap 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 Garnet's a bitų for meaty ?
N
75
FAN TALPAR IZANOMIC DALVIEW
jmmary 9, 1909
if the Special Branch said "X ought to be detained", the low officers
would not feel themselves in a position to do any- thing but go along
with the request. Government is assum ing the role of prosecutur, jury
and judge. The number.
acquittals in the ordinary courts shows how many lignes the
reasonable suspicions on which the police and law officers have together
acted to put suspects on irial have been proved false,
The
et...
.I
Stanlarly, official statements on the limitation of the period of
detention are more theoretical than real. Therer is nothing to provent a
further detention order being made, when the first expires, the
safeguards on the second being axmadipate as on the first. It is
impossible to accept State Loent that wily one has been held for more
it Can be established that at least five. de Comel without trial for
period of well over The alberi chim aban the legal require- And bel to
uchars detainees when they we no longer a thiçat is simply not true. In
the same way that the Colonial Secretary is not required to have a
reatia for de- tuning a person in the first place, so he is not required
to bove any mason or justification for continuing the detention,
11!
To
JI
As to the Government's claim that it has used its powers seth, pola
dion, at as ditficult to judge. It is wrong that My dtion to state the
names and addressin of sal thur det te ad and to announce their
subaquent release. It means it is impossible to chec, on the way the
power is beng med. To any even, we may recall the words of K. Gripal,
MP, in the Commons debate on Regulation 183 in TOWA "It is not
sufficient for the Minister to say, amidst evonalrable approval for him
personally, I am not the sort of person who would use these powers
badly.' We cannor have any such confidence A Minister may be succeeded
by wachandy who holdh other views Jt wens a vicious penuple to justify
unsound legislation by a blind confidence that it will not be used in
the sense in which it has been pat on the Statute Book."
While it is true that Government is in the best position to judge
security matters, it cannot escape the visible evidence that the Colony
has by now returned to normal. The Colony will never be entirely free
from the threat of disturbances, but that does not justify the retention
of the totally unfettered power contained in Regulation 31. On the one
hand, the Government is saying that the power will be surrendered as
soon as the emergency is over, but on the other hand that it ought not
hastily to repeal Regulation 31 because its existence.
This is circular. prevents the emergency from recurring.
The words of Herbert Morrison, MP, on Britain's Re- gulation 158, are
very pertinent: "I think that any Minister is capable of being wicked
when he has a body of regulations like this to administer." The fact
that Government has been dishonest in its statements about the
regulations does nut It give confidence that it is incapable of abusing
its power. is not hard, for example, to imagine the regulation being
used against genuine but militant trade unionists. It is quite wrong
that even a male fide use of the power cannot be challenged in the
courts; habeas corpus will only lie if the I crsun detailed is not the
person named in the order. Judicial review is entirely excluded.
The law-abiding have reason to fear Regulation 31 be- cause there is
little safeguard against either genuine errors or the malevolence either
of informers or officials. Moreover, if all the detainees were "openly
and deeply involved" in violance as the authorities assert, it is rather
difficult to see; why the trial process was not appropriate. And how can
we be confident that all the detainees were justly detained if the
machinery for preventing errors and abuse, is so manifestly inadequate?
The obvious conclusion is that Regulation. 29, 30 and 31 require
amendment. There seems no good reason (poce the President of the Law
Society) for keeping quiet about Regulation 31 until after the emergency
is over. Apart from the fact that it appears to have already ended, the
time to protest against an evil is surely while the evil exists.
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EN CLAIR
HONG KONG TO FOREIGN AND COMMONWEALTH OFFICE
TELNO BIS 2
14 FEBRUARY 1969
PBQ
UNCLASSIFIED
On more emergency regulation introduced during nineteen sixty seven
disturbances is to be repealed and incorporated
in modified form in Summary Offences Ordinance.
Emergency Regulation 1190 (repeat 1491) makes it offence be in
possession simulated bomb.
It stipulates penalty up to five thousand dollars or two years
imprisonment on summary conviction and up to
ten thousand dollars or five years on indictment."
Todays Gazette contains Bill which be introduced
Logislative Council February twenty sixth.
Summary Offences (Amendment) Bill 1969 seeks retain in
Law Regulation 119D.
i
It provides for reduced penalty of five thousand dollars or
imprisonment for one year.
Government spokesman said this move in line with Government policy which
is to keep emergency legislation
under constant review.
BRITINFORM
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