Comparative Reflections on COVID-19 Responses: Drafting, Powers, and Interpretation

Abstract

This article examines comparatively approaches in Hong Kong and English law on powers created by the use of subordinate legislations to combat the COVID-19 pandemic from the perspectives of legislative drafting and statutory interpretation. These powers, being wide and flexible in nature, pose a tension between two competing concerns. On the one hand, they enable law enforcement officers to be able to deal with the unique challenges posed by a public health crisis. On the other hand, they pose the potential to restrict fundamental human rights disproportionately. This article will proceed in three parts. First, the article will analyse the responsibilities of drafters in drafting subordinate legislations and the techniques therein; the discussion will be contextualized within a need for urgent public health responses to combat the pandemic. Second, the powers conferred upon law enforcement officers and restrictions on individual liberty under Hong Kong law and English law will be analysed. Third, approaches to interpreting the relevant legislations under the two jurisdictions will be examined. It will be argued that despite the need to confer wide and flexible powers to the executive to combat the pandemic, specificity of language and precision in articulating these powers remain of cardinal and overarching importance.