The Limits of Legislative Delegation: Emergency Law in Hong Kong

Abstract

The anti-Extradition Bill saga has sparked widespread protests in Hong Kong. In a bid to quench the increasingly violent protests, the Hong Kong Government has resorted to the use of emergency legislation - the Emergency Regulations Ordinance. This use was adjudged unconstitutional by the Hong Kong Court of First Instance in Kwok Wing Hang v. Chief Executive in Council. In light of this background, this article explores the interaction between emergency law and the limits of legislative delegation under the separation of powers in Hong Kong. There are three parts to this article. First, an analytical overview of the powers given under the Ordinance will be made. Second, it will be contended that the Ordinance contravenes two limits on legislative delegation under Hong Kong's separation of powers. The first contravention is the Ordinance allows the Chief Executive in Council to amend or suspend primary legislation. The second contravention is the Ordinance excessively empowers the Chief Executive in Council to enact subordinate legislation. The decision in Kwok is therefore correct. Third, it will be contended that the court in Kwok has rightly refused to apply a remedial interpretation to the Ordinance.