Well, it looks as if the legal world, as far as Hong Kong is concerned, is not going to come to an end, or at least not yet.
Last November, the Hong Kong High Court heard a challenge to the legality of the government’s new law against the wearing of masks, enacted by the Chief Executive, solo, under the Emergency Powers Ordinance. Was it compatible with the Basic Law of the Hong Kong Administrative Region, which is our local constitution?
The judges ruled that it was not. This was for two reasons: one was that the Basic Law explicitly confers on the Legislative Council the right to make laws. When the ERO was passed, in the 1930s, the Governor was the source of all laws. He was expected to seek the advice and consent of the Council first, but dispensing with this when haste was required did not involve a major change in principle.
The Chief Executive of the SAR, on the other hand, is not supposed to legislate, so the idea that an old colonial ordinance could confer the right to do so was a stretch, and the judges thought it was a stretch too far. No doubt they were helped to this decision by the government’s insistence that the situation, though grave, was not an emergency.
The other problem with the mask law was the matter of the Bill of Rights Ordinance and the Basic Law’s explicit endorsement of it. This permits infringements of rights in some circumstances but sets standards and limits.
The right to demonstrate in public is a part of freedom of expression, and the wish to do so without being photographed is in Hong Kong’s circumstances both understandable and worthy of protection. So a law which banned masks at any and all protests, and authorised a police officer to require the removal of a mask under any circumstances he wished, was excessively broad.
Clearly the judges’ decision was not welcome to the government, which immediately said it would appeal, or to its supporters. No doubt it was not welcome in Beijing either, but the response from there was interesting.
As RTHK put it: “Jian Tiewei, a spokesman for the legislative affairs commission of the National People’s Congress Standing Committee, said that both the national constitution and the Basic Law provided the constitutional basis for the Hong Kong Special Administrative Region. He said that on this basis, the question of whether any Hong Kong law was constitutional or not could be judged only by the NPC.”
Cue legal horror. Some lawyers said Mr Jian was wrong, some said it was a difficult legal question, some said that Mr Jian was right, or at least was pointing to a manifest contradiction in the relevant laws. Did this presage another “interpretation” of a Hong Kong court case?
Actually what seems to have foxed Mr Jian was the word “unconstitutional”. Clearly it would be an impertinence for Hong Kong judges to decide that a law was inconsistent with the constitution of the PRC. On the other hand in Hong Kong parlance “unconstitutional” just means incompatible with the Basic Law. And if the Hong Kong courts cannot, when it comes up, consider that… well then they are hardly courts at all.
This was recognised by the drafters of the Basic Law, and the relevant Article (158) goes like this: “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” It is a serious error to stop reading at this point, because the next sentence says “The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.”
The use of the word “shall” is explained by the fact that the Basic Law was promulgated before the Handover.
In case we are left with any doubt, the next bit of Article 158 starts: “The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases.” It goes on to lay out a procedure for cases “concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region” which must be passed, via the Court of Final Appeal, to Beijing and Mr Jian’s committee.
We are left with several possible explanations for Mr Jian’s view that the NPC alone has the right to consider the constitutionality of Hong Kong laws. One is that in his view “the limits of the autonomy of the region” are now so shrunken that there is no space left inside them for Hong Kong courts to operate without his assistance.
Another possibility is that we are being treated to another instalment of a familiar but unloved mainland legal manoeuvre: an announcement from a senior official that the law means what the government wants it to mean, not what it says.
The third one is that Mr Jian not only does not know much about the Basic Law, but as happens in most places where senior officials are surrounded by yes-men and nodders (P.G.Wodehouse: a nodder is a yes-man who is too frightened to speak) he does not know what he does not know.
The curious thing about this scene is that there is no practical difference at stake. If the government chooses to treat this as a matter concerning the Central government or the relationship between it and the region, then Mr Jian’s committee may eventually be invited to declare that the Emergency Regulations Ordinance is, in fact, compatible with the Basic Law, and this part of the judges’ decision will be over-ruled. The mask ban will still, though, fall foul of the Bill of Rights Ordinance, which is an ordinary Hong Kong piece of legislation and, in the ordinary way, takes precedence over older laws, of which the ERO is one.
So we may see a long legal struggle in search of a partial victory of no practical significance. This could take so long that by the time the mask ban’s fate is decided the wearing of masks is no longer a hot issue.
Contemplating this prospect our leaders might do well to contemplate the implications of Mr Tsang Yuk-sing’s summary: “In the last five years, the Hong Kong government and many of my colleagues in the pro-government camp thought that we were winning victory after victory; but every time, people became angrier.”
Would it perhaps be conducive to the respect for the law – which we all wish to see – if the government learned how to lose gracefully?
