Opinion | China’s top legislative body’s comments on the power of Hong Kong courts strike at the heart of ‘one country, two systems’

By calling into question Hong Kong courts’ power to declare laws unconstitutional if they breach the Basic Law, Beijing threatens the city’s legal system and the local judiciary’s ability to protect human rights

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Published: 9:00am, 21 Nov 2019Updated: 9:00am, 21 Nov 2019

Within weeks of Hong Kong’s return to China, the courts were faced with an audacious legal challenge which threatened to plunge the city’s new constitutional arrangements into chaos. Three defendants in a criminal trial argued the common law had not survived the 1997 transfer of sovereignty and that most of Hong Kong’s laws were, therefore, invalid. This bold assertion was rejected by the Court of Appeal, which upheld the continuation of the common law system.

But that was not the only important part of the judgment. One question raised was whether the courts had the power to declare local laws invalid if they breached the city’s new de facto constitution, the Basic Law.

The government argued that the courts enjoy this power, just as they had been free before the handover to strike out laws conflicting with the colonial constitution, the Letters Patent. The Court of Appeal agreed and the judiciary has been using the power ever since.

The ability of the courts to declare laws unconstitutional if they breach the Basic Law is a fundamental part of the city’s legal system. It is the way in which the judiciary ensures the government and legislature act constitutionally and do not abuse their power. Without the ability to strike down laws, the courts will not be able to effectively protect human rights.

But this power now appears to be under threat. This week, the Court of First Instance declared a ban on the wearing of masks at protests to be in breach of the Basic Law. The ban was imposed by the chief executive in October in a bid to curb ongoing violent unrest.

A spokesman for China’s top legislative body said the ruling “did not comply” with parts of the Basic Law and the position of the National People’s Congress Standing Committee (NPCSC). He added: “Whether Hong Kong’s laws are consistent with the Basic Law can only be judged and decided by the NPCSC. No other authority has the right to make judgments and decisions.”