Hong Kong’s legal professionals and democrats have warned Beijing against issuing an interpretation of the Basic Law, following strong criticism from senior Chinese officials over a recent High Court ruling which overturned a controversial ban on face-coverings at protests.
The pro-democracy Civic Party said in a statement on Tuesday that any attempt by Beijing to intervene and interpret Hong Kong’s mini-constitution will only “add fuel to the situation in Hong Kong and symbolise the total collapse of the ‘One Country, Two Systems’ arrangement.”
The High Court ruled on Monday that the anti-mask law is unconstitutional as the restrictions are disproportionate, among other reasons. It also ruled that the sections in the Emergency Powers Ordinance empowering Hong Kong’s leader to make laws “on any occasion of public danger” are incompatible with the Basic Law.
The court decision attracted strong reactions from Beijing. Jian Tiewei, spokesperson for the Legislative Affairs Commission (LAC) of the National People’s Congress Standing Committee (NPCSC) said on Tuesday: “Only the National People’s Congress has the power to judge and decide whether Hong Kong SAR laws comply with the Basic Law. Any other authority has no right to make judgments and decisions.”
Meanwhile, Yang Guang, spokesperson of the State Council’s Hong Kong and Macau Affairs Office, said that the court decision would have a “serious and negative sociopolitical impact by displaying a blatant challenge to the NPCSC’s authority and the governing power of the chief executive.”
‘Shocked and worried’
In response, the Hong Kong Bar Association said in a statement that the LAC’s view was “legally incorrect” and that Hong Kong courts have long upheld their duty in the Basic Law in striking down unconstitutional laws.
Former chief justice Andrew Li said he would be “shocked and worried” if Hong Kong courts are said to have no power to overturn local laws that do not comply with the Basic Law. He said that the courts have enjoyed such powers since 1997 – the year of the establishment of the Hong Kong SAR.
Senior counsel and veteran politician Martin Lee said that the courts’ power to make constitutional reviews is granted by the Basic Law and has been reaffirmed by the Court of Final Appeal case law. He warned that the LAC’s comment would deal a serious blow to Hong Kong’s rule of law.
Legal sector lawmaker and lawyer Dennis Kwok of the Civic Party also said the LAC’s statement is suggestive of a “fundamental rejection of the entire judicial system and the rewriting of Hong Kong’s legal system.”
“If the government disagrees with the court ruling, it can file an appeal. What the authorities cannot do is to claim that the courts do not have the power [to make constitutional reviews],” he said, adding the LAC should respect the principle of the separation of powers.
But Hong Kong representative to the NPCSC Tam Yiu-chung told RTHK that there would be a need for clarification – such as in the form of a Basic Law interpretation – if there is any incorrect understanding by the court.
Article 158 of the Basic Law confers the power of interpreting Hong Kong’s mini-constitution on the NPCSC. An NPCSC interpretation – which has taken place on five occasions since the 1997 handover – is often controversial owing to the public perception that Beijing is undermining the city’s judicial independence.
The last Basic Law interpretation was handed down in 2016, which led to a series of removal of opposition lawmakers from office and disqualifications of individuals from running for public office.
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