Air Pollution as a Constitutional Question: The Case for Broadening the Executive's Economic Prerogative in the Not so Fragrant Harbour

Abstract

The Hong Kong executive government’s indifferent response to air pollution constrains its development as a post-colonial polity progressing along the road to a democratic system as it need have an executive which recognises economic policy to be two-sided; it is both to promote commercial development and to protect the revenues of the constituent community from avoidable losses as these are both part of the implicit social contract. This article asks whether the executive’s failure to act effectively on SARS and air pollution has a historical basis in colonial Hong Kong. The article finds that, although the British colonial failure to deal with malaria has a general similarity with the Chinese post-1997 failure to deal with air pollution (as both governments pretended there wasn’t a serious problem) it is in a comparison of government responses to the 1894 Plague outbreak and the 2002 SARS outbreak that is the most telling. When compared, it can be demonstrated that the foibles and features of authoritarian rule are exactly the same pre- and post-1997. The devastating economic effect of each outbreak challenged the authority of each to rule, large scale reform occurred as a result and, with it, a strengthened authoritarian mandate emerged. Particulate pollution and anopheles mosquitos have tend to be viewed as an irritation to be endured or as part-and-parcel of being in business in Hong Kong even though they have caused many more deaths than the Plague and SARS put together. Thus, only sudden and severe public health convulsions, forcing large numbers of people to flee Hong Kong with their money, leads the executive to recognise the general will momentarily through sustained sanitation as a precondition to retaining authoritarian rule. This article occasions a question as to the possibility of a government observing the general will in post-colonial society and the extent to which it can ever be representative. Has being a member of the British Empire constitutionally hobbled modern Hong Kong or can it draw on its history to solve its modern problems such as air pollution? The answer to this lays in Article 118 of the Basic Law which enjoins the government of Hong Kong to develop Hong Kong commercially but to do so within an environmental constraint. Only through serious policy formulation on this basis can the current Hong Kong government plot a course which puts paid to the enduring influence of the old colonial ghost (i.e. the use of a particular type of public health crisis to reinforce authoritarian mandate).