Unwell and injured protesters in emergency thermal blankets leave the Hong Kong Polytechnic University in Hong Kong on November 19 2019. Picture: AFP/NICOLAS ASFOURI
Unwell and injured protesters in emergency thermal blankets leave the Hong Kong Polytechnic University in Hong Kong on November 19 2019. Picture: AFP/NICOLAS ASFOURI

Hong Kong — Hong Kong lawyers and scholars keen to safeguard the territory’s vaunted legal independence were alarmed on Tuesday by a statement from a Chinese parliamentary body questioning a Hong Kong court’s decision to overturn a ban on face masks imposed to quell months of violent protests.

Why is this significant?

Amid intensifying street violence in recent weeks, the strength and importance of Hong Kong’s rule-of-law traditions have been cited by both anti-government protesters and the city’s rulers as vital to its future freedoms and stability.

What did the statement say?

A statement attributed to a committee of China’s top law-making body questioned the power of Hong Kong’s high court, which, on Monday, overturned a recent local government ban on face masks made under a little-used emergency regulations provision.

The court said the ban was excessive and unconstitutional under the Basic Law — the document that outlines the extent of Hong Kong’s freedoms and autonomy, and has guided relations with Beijing since the 1997 handover from British colonial rule.

Issued by the legislative affairs commission of the standing committee of the National People’s Congress (NPC), the statement said Hong Kong courts have no power to rule on the constitutionality of the city’s laws, the official Xinhua news agency reported. Beijing’s Hong Kong and Macau affairs office also expressed concern at the ruling, as did Xie Chuntao, a deputy director of the Communist Party’s central party school.

“Who has the right to interpret the Basic Law of Hong Kong? It is ... very clear that only the NPC standing committee does, and any other organisation does not,” Xie said in Beijing.

Is it that simple?

Some experts in Hong Kong and beyond don’t think so. They say it is clear, through precedents set by Hong Kong’s highest court, the court of final appeal, that the city’s courts have the power to declare local legislation unconstitutional. They accept, however, that the Basic Law gives the NPC standing committee the ultimate power of re-interpretation.

That power has so far been used sparingly, which is widely seen as a reflection of the delicate balance between Hong Kong’s British-based legal traditions and Beijing’s ruling Communist Party leadership.

Simon Young, a professor at the University of Hong Kong’s law school, said that while it could be “mere opinion”, the statement could also point ultimately to a decision that curbs local courts. It would be troubling, he said, if it indicated “a looming re-interpretation that would fundamentally transform what may be regarded as the recognised power of the Hong Kong courts to declare legislation unconstitutional”.

What happens next?

The Hong Kong government is in a tight spot. It is widely expected to formally appeal the mask ban ruling beyond the gigh court, which could end up bringing the case to the court of final appeal.

Any such appeal could build pressure in Beijing for an eventual re-interpretation of Hong Kong court rulings in the case, which could effectively limit the power of Hong Kong courts. Such action, while not unprecedented, would further add to local anger over perceptions that Hong Kong’s freedoms and autonomy are being eroded by Beijing’s meddling.

Hong Kong’s CEO Carrie Lam said on Tuesday that as the court has yet to finalise its order she couldn’t comment, but said her government would monitor developments and consider its next move.


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