"Who but the Governor in Executive Council is the Judge?" — Historical Use of the Emergency Regulations Ordinance

Abstract

Drawing upon archival documents and previous scholarly works, this article investigates the invocation of Emergency Regulations Ordinance (Cap 241) (ERO) in colonial Hong Kong against the broader historical context connecting China, Britain and Hong Kong during the interwar and Cold War periods to make three main arguments. First, it argues that in comparison with similar statutes in other British colonies, the ERO was much easier for the Hong Kong Government to invoke to the extent that it was extremely difficult, if not impossible, for any challenge of its constitutionality to succeed. Second, China factors, be they factors related to China under Nationalist or Communist Party rule, were crucial in almost every occasion on which the ERO was used throughout Hong Kong's colonial history. Finally, partly because of the nearly unchecked freedom that the colonial government enjoyed, it used the ERO not only to deal with grave political instability or legitimacy crises but also to tackle the inconveniences of domestic governance, thereby effectively 'ruling by decree'. Accordingly, the number of times the ERO was invoked exceeds the figure we would expect if its use had arisen only on 'occasion of emergency'.