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Anti-government protesters wearing Guy Fawkes masks along Salisbury Road in Tsim Sha Tsui, Hong Kong. Photo: Felix Wong

Hong Kong mask law: Beijing claim on ‘unconstitutional’ ruling could spell end of ‘one country, two systems’, legal heavyweights warn

  • City’s legal scholars say any action from Beijing could be ‘disastrous’ for politically charged cases
  • Spokesman for NPCSC’s Legislative Affairs Commission said High Court ruling did not comply with Hong Kong’s mini-constitution

Hong Kong’s legal scholars have warned Beijing’s latest statement suggesting the city’s courts cannot rule on constitutional matters could spell the end of “one country, two systems”, even as pro-establishment heavyweights sought to placate such fears.

The concerns were sparked after the Legislative Affairs Commission of China’s top legislative body, the National People’s Congress Standing Committee (NPCSC), on Tuesday criticised the court’s decision on the government’s mask ban against protesters, which it ruled unconstitutional.

The judgment forced police to halt law enforcement while legal experts in mainland China floated the possibility of another legal interpretation by Beijing.

But even before such a move is undertaken – often a fraught one criticised for weakening judicial independence – the suggestion that the High Court had no remit on determining whether a law was in accordance with the Basic Law, the city’s mini-constitution, set off alarm bells across the legal community.

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On Tuesday morning, Zang Tiewei, spokesman for the commission, said the court ruling “did not comply” with the city’s mini-constitution and the standing committee’s past decisions.

Whether a local law is in conformity with the Basic Law “can only be judged and decided by the NPCSC, and no other organ has the right to judge or decide”, Zang said.

Lawmaker Priscilla Leung Mei-fun, also a member of the Basic Law committee, insisted Zang’s remark was not a new position, and the Standing Committee was only reiterating its position.

She said under Article 158 of the Basic Law, the Standing Committee authorised local courts to interpret the Basic Law “within the limits of the autonomy” of Hong Kong.

She suggested that the Hong Kong law Zang referred to in his statement was about legislation outside the scope of the city’s autonomy and that would include the Emergency Regulations Ordinance that was invoked to pass the mask ban. For such laws, Beijing had the ultimate say, she indicated.

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She argued thus: the emergency law covers the power of the chief executive to govern, which in turn leads to issues about the city’s constitutional structure, and therefore “it is about the central authorities’ relationship with the region”.

Seen in this context, the law fulfilled the condition for the court to seek an interpretation from the Standing Committee, she said, as it pertained to the relationship between Hong Kong and the central government.

Ronny Tong Ka-wah, an adviser on the city leader’s cabinet and a barrister, said he believed that Zang was only talking about the NPCSC’s “ultimate” power to interpret the mini-constitution.

“The spokesman’s statement was not 100 per cent clear, but what he said could not change what was written under Article 158,” he said.

Young anti-government protesters wearing superhero masks in Jordan. Photo: Winson Wong

But others were unpersuaded.

Johannes Chan Man-mun, a constitutional law professor at the University of Hong Kong, said the Legislative Affairs Commission appeared to be “ill-advised” in issuing the remarks.

Chan said the spokesman’s remarks were not in line with Article 158, which clearly stated that Hong Kong courts of all levels may interpret the provisions of the Basic Law that are within the limits of the city’s autonomy.

“Is the commission striking down all the judicial review rulings by Hong Kong courts in the past 22 years since the handover, including the many cases that concern the protection of human rights?”

Anti-government protesters in Lan Kwai Fong, Central on Halloween night. Photo: Sam Tsang

Echoing the view, human rights lawyer Mark Daly said Zang’s statement, if it led to action, would be “disastrous” not only for politically charged cases but also cases concerning purely local social issues.

“It would mean that people – usually the vulnerable and minorities – may not get protection for their constitutionally guaranteed human rights from courts already under threat from the misuse of interpretations,” he said.

The Bar Association said Zang’s remarks were “legally incorrect”, citing arguments similar to Chan’s. It also noted that there had been no previous suggestion that the courts could not strike down unconstitutional law.

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“Any suggestion that the courts … cannot conduct a constitutional review circumscribes the exercise of judicial power by the courts which they have always enjoyed and is contrary to the Basic Law. It also undermines the high degree of autonomy granted to the HKSAR.”

Any suggestion that Beijing should pre-empt the conclusion of the judicial process could be perceived as putting pressure on the judiciary, it said.

Martin Lee Chu-ming, a Basic Law drafter, accused the commission of trying to claw back the judicial power of Hong Kong’s courts “because they think our judges do not listen to them”.

He also asked: “In the NPCSC there are no judges. They have no training in the common law. So, how do they know? How do they decide? It is a very dangerous step … This could be the end of Hong Kong legal system [if this comes true].”

A legal scholar from the mainland, who declined to be named, also expressed doubts over whether the statement conformed with the Basic Law.

“This statement does not seem to comply with Article 158 of the Basic Law,” he said.

“When it comes to domestic affairs that fall within the scope of [the city’s] autonomy, Hong Kong courts have the right to explain [the Basic Law] and give its rulings.”

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Fu Hualing, a law professor at the University of Hong Kong, said if Beijing did follow through on the statement, it would have a huge impact on Hong Kong’s rule of law and severely weaken the city’s judicial power.

According to Fu, although the courts’ power of constitutional review was not written in black and white in Hong Kong’s Basic Law, it had become an accepted practice in the city’s common law system dating back to the early 1990s, before the handover. In 1991, the Bill of Rights Ordinance took effect and gave wider protection of human rights to Hongkongers. It gave the court the power to repeal any pre-existing law that was not consistent with the ordinance.

The central government had never openly admitted that Hong Kong courts had such rights but had until now quietly accepted it, he said.

Bar Association chairman Philip Dykes SC said he could already see the impact Zang’s suggestions might bring. While people seeking grievances could still sue one another, those who suffer in the hands of the government might not be able to seek redress because those court actions often rely on the court interpreting the Basic Law.

Civic Party lawmaker Dennis Kwok, who represents the city’s legal sector in the Legislative Council, said Zang’s remarks were “shocking” and amounted to saying the courts had no power to adjudicate the constitutionality of even a piece of domestic legislation.

“Are they saying that power is wrongly exercised? Or that power will be taken away? This will be the end of ‘one country, two systems’.”

Additional reporting by Ng Kang-chung