- 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
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."
There are now worrying suggestions that Beijing may act to prevent the courts from exercising this power in future. Such a move would strike a fatal blow to Hong Kong's separate legal system.
The power of the courts to strike out unconstitutional laws was asserted in the strongest terms by the Court of Final Appeal in 1999. Five top judges unanimously declared that the courts "undoubtedly" have the power to declare laws invalid if they conflict with the Basic Law. This is a duty which the courts are bound to exercise, they said.
Parts of that judgment were controversially overturned by the NPCSC in its first interpretation of the Basic Law later that year. Beijing did not, however, question the court's assertion that it had the right to declare laws invalid.
The Basic Law does not state clearly that the courts enjoy the power to strike out laws. It gives the NPCSC the right to return and invalidate laws passed by Hong Kong's legislature if it considers them to conflict with the Basic Law, although this does not apply to laws on matters within the city's high degree of autonomy.
However, numerous articles of the Basic Law stress the continuity of the legal system which existed at the time of the handover. Article 19(2) provides that the only restrictions on the jurisdiction of the courts are those that existed before the change of sovereignty. The courts have been actively using the power to declare laws unconstitutional for almost 30 years, since the introduction of the Bill of Rights Ordinance. Although mainland officials have occasionally questioned their right to do so, it has not seriously been challenged until now.
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The idea that this power could be removed, perhaps by an NPCSC interpretation of the Basic Law, is chilling. The courts would find it difficult, if not impossible, to intervene should oppressive laws be passed. The Basic Law protects a wide range of rights and freedoms, including free speech, freedom of the press and the right to demonstrate.
Former Chief Justice Andrew Li Kwok-nang, speaking in 2013, stressed the importance of the court's role in protecting these rights, which he said formed part of the city's rule of law. Without such protection, there would be "rule by law", he said. Li pointed out that in Nazi Germany, oppressive laws had been used to persecute the Jews.
The Court of First Instance, in its carefully considered, well-argued 106 page judgment, sought to uphold the constitutional arrangements put in place for the handover by the National People's Congress. It is ironic that the central government wants to preserve a draconian emergency law introduced by the colonial government in 1922 to combat a seaman's strike. At that time, the Legislative Council was a small advisory body composed mostly of government officials. Times have changed.
The court found this law unconstitutional to the extent that it gives the chief executive almost unrestricted power to pass regulations at a time of public danger. This is because the Basic Law provides that only the elected legislature can pass laws. The court relied on nine articles of the Basic Law to reach that conclusion.
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The judges also found that the ban on masks at lawful protests restricted human rights more than necessary and the power given to the police to remove masks in public places was too broad.
The ruling does not prevent the imposition of a ban on wearing masks at protests. But the ban must be put in place by the legislature, not the government. It must be expressed clearly so that everyone understands what it means. And it must not restrict human rights more than necessary. This is consistent with established legal principles and makes perfect sense.
It is to be hoped that this judgment will not be overturned by an interpretation of the Basic Law from Beijing. Such a move would severely undermine the city's independent judiciary at a highly sensitive time when it is coming under pressure from both sides of the political divide. The central government's questioning of the court's power to invalidate laws adds to that pressure, especially if the ruling is the subject of an appeal. Perhaps the applying of that pressure is the intention.
The violent unrest in Hong Kong poses a grave danger to the city. But measures adopted by the government to handle the crisis must be lawful. And if they are not, it is the job of the courts to intervene. Any attempt to prevent the independent judiciary from performing this role will only hasten the downfall of Hong Kong and the "one country, two systems" concept.
Cliff Buddle is the Post's editor of special projects
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