The public is anxiously awaiting definitive news as to whether the government will indeed invoke the long-dormant but draconian Emergency Regulations Ordinance to enact measures to quell the political unrest. So, it is worth reviewing whether, from a constitutional perspective, the ordinance is indeed a “legal means” which the government has at its disposal to deal with the present circumstances, as Chief Executive Carrie Lam Cheng Yuet-ngor has claimed. The ordinance gives the Chief Executive in Council sweeping powers to declare regulations and implement measures which abrogate the basic rights of citizens, such as the right to publish and the right to assembly. But there are serious questions as to whether it is consistent with the constitutional instruments in Hong Kong and, hence, is constitutional. It is also highly doubtful whether the Chief Executive in Council has the power to declare a state of emergency and lawfully make emergency regulations under the ordinance. The protection of human rights in Hong Kong is guaranteed by the International Covenant on Civil and Political Rights (ICCPR), to which Hong Kong has been a party since 1979. The Hong Kong Bill of Rights Ordinance was enacted in 1991 as the domestic law implementing the ICCPR. The covenant is expressly entrenched in the Basic Law, the mini-constitution of Hong Kong since 1997. Any law which is incompatible with the covenant as applied in Hong Kong, therefore, contravenes the Basic Law and is of no effect. Both the ICCPR and the Bill of Rights Ordinance contain provisions dealing with public emergency. It is stated in Article 4 of the ICCPR (which was reproduced in Section 5 of the ordinance) that: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed [measures may be taken] derogating from their obligations under the present Covenant …” ‘All laws’, including emergency powers, on the table for Hong Kong leader Exemptions from human rights are serious matters. They are regarded as “extraordinary limitations” on the exercise of human rights. In international human rights jurisprudence, it is well established that only in genuine emergency situations, which are so serious as to actually constitute a “threat to the life of the nation”, may emergency-measure exemptions from human rights be justified. It has been said that whether the crisis situation is caused by an armed conflict or other crisis, “it is the survival of the very nation that must be in jeopardy”. Consequently, “simple riots” or “internal disturbances” do not, per se, justify the resort to such measures. Under the Emergency Regulations Ordinance, the precondition that the Chief Executive in Council has to comply with in order to invoke the powers to make emergency regulations is a far cry from the stringent requirement provided under the ICCPR and the Bill of Rights Ordinance. Did officials lie to UN Human Rights Council about Hong Kong freedoms? Section 2(1) of the Emergency Regulations Ordinance says that: “On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.” It can be readily seen that the requirement under the ICCPR for an emergency which “threatens the life of a nation” to trigger derogation from human rights is displaced by a more relaxed requirement in the Emergency Regulations Ordinance for the existence of any “emergency or public danger”. The [1922] Emergency Regulations Ordinance clearly does not meet the international standards stated in the ICCPR Further, the ICCPR requires that the existence of the emergency must be “officially proclaimed”. Our ordinance merely requires the Chief Executive in Council to “consider” that there is an emergency and that would be sufficient. When examining the human rights situation in Hong Kong, the UN Human Rights Committee did not consider that the city had any legislation that complied with the ICCPR governing emergency. The Emergency Regulations Ordinance clearly does not meet the international standards in the ICCPR. Blindsided: why does Beijing keep getting Hong Kong wrong? There is much to be said about the fact that the ordinance, enacted in 1922 in an era before the protection of human rights was codified by international agreements and enshrined in domestic legislation, has ceased to have legal force since the Bill of Rights Ordinance came into being in 1991. Any pre-existing law which was inconsistent with that ordinance (including the provision dealing with derogation in situations of emergency) was deemed to have been repealed. Therefore, the Emergency Regulations Ordinance is not a tool the government could deploy to deal with the current situation. And, from no angle could the current state of protests in Hong Kong be reasonably regarded as threatening the city’s survival. Finally, the other requirement which must be complied with before any government can lawfully invoke emergency powers under the ICCPR is that the state of emergency must be “officially proclaimed”. The powers of the chief executive are set out under Article 48 of the Basic Law. They do not include any power to officially proclaim a state of emergency. Only the National People’s Congress Standing Committee may, under Article 18 of the Basic Law, decide whether Hong Kong is “in a state of emergency”, in which event Beijing may issue an order applying national laws in Hong Kong. Given that the chief executive has no power to proclaim an emergency, she has no lawful power to make emergency regulations which would comply with Hong Kong’s international treaty obligations. Contrary to what the chief executive has claimed, invoking powers of emergency in the present circumstances would not be in the interest of the rule of law but, rather, wholly repugnant to it. Erik Shum and Wing Kay Po are vice-chairs of the Hong Kong Bar Association’s Committee on Constitutional Affairs and Human Rights