City has enough on its hands without a constitutional crisis

South China Morning Post 發布於 2019年11月20日16:11 • SCMP Editorial
  • Beijing’s response to court ruling overturning the ban on masks at protests has raised concern, but this is a time for calm and for the judicial process to follow its natural course
The Court of First Instance declared the mask ban, imposed by the chief executive under an emergency law in October, to be unconstitutional. Photo: Winson Wong

The central government's response to a court ruling on the banning of masks at protests has raised concerns in Hong Kong. There is a need for calm and for matters to be clarified while the judicial process follows its natural course. The Court of First Instance declared the ban, imposed by the chief executive under an emergency law in October, to be unconstitutional. The two judges agreed the prohibition on face coverings breached the city's de facto constitution, the Basic Law. The decision struck a blow to the government, which is struggling to curb violence and civil unrest spanning more than five months.

In response to the judgment, a spokesman for China's top legislative affairs body said the ruling did not comply with aspects of the Basic Law. He added that only the national legislature could decide whether Hong Kong laws were consistent with the Basic Law.

Beijing's view on mask law ruling 'could spell end of one country, two systems'

His comments have raised concerns that Beijing might deny the city's courts the power to invalidate laws that conflict with the Basic Law. This is an important power that enables the courts to ensure the government and legislature act lawfully. Without it, the courts would not be able to intervene should oppressive laws be passed that unduly restrict rights and freedoms protected by the Basic Law.

But the comments of the spokesman are open to different interpretations and it is far from clear that the central government intends to take any further action. Some have suggested the remarks were just a restatement of Beijing's long-held position. There have also been suggestions the central government might use its ultimate power to interpret the Basic Law to overturn the court's ruling. But there is no indication such a move is planned. There is, however, a need for the matter to be clarified. Hong Kong needs certainty and consistency in these challenging times. Beijing should be aware that statements of this kind, without explanation, give rise to doubts, worries and general confusion.

The city government can challenge the ruling by way of an appeal. If the case goes to the Court of Final Appeal, it will be for that court to decide whether a reference should be made to the National People's Congress Standing Committee for an interpretation of the Basic Law. The judicial process should be allowed to take its course.

As the court made clear in its ruling, judges have a responsibility to apply the law without being influenced by political considerations. It is vital that the city's judges continue to rule independently and are not swayed by pressure from any quarter. Their ability to do so lies at the heart of Hong Kong's separate legal system and rule of law. The mask ban has proved to be ineffective. As the court said, it does not appear to have achieved its aims. Hong Kong has urgent problems to tackle. A constitutional crisis over the mask ban must be avoided.

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