China slams Hong Kong court’s ruling of anti-mask law as unconstitutional, says only Beijing can decide on constitutionality

South China Morning Post 發布於 2019年11月19日04:11 • Tony Cheung and William Zheng
  • Two major political authorities in China strongly condemn the High Court decision that mask ban is incompatible with city’s Basic Law
  • Analysts say Beijing is likely to step in, with senior figure declaring supremacy of national legislature in determining whether legislation complies with Basic Law
The mask ban in Hong Kong took effect in October 5, but the way it was imposed through emergency powers was ruled unconstitutional by High Court judges on Monday. Photo: SCMP

China's top legislative affairs body has hit out at Hong Kong's High Court ruling that the emergency anti-mask law was unconstitutional, arguing only the national legislature has the right to decide on issues of constitutionality.

Zan Tiewei, spokesman for the Legislative Affairs Commission (LAC) of the National People's Congress Standing Committee (NPCSC), said the ruling "did not comply" with aspects of Hong Kong's mini-constitution, the Basic Law, as well as the NPCSC position, according to the state-run Xinhua news agency.

The government introduced the mask ban to try and put an end to the increasingly violent protests that have been gripping the city for months. Photo: Winson Wong

Zan said the national legislature was the only body that could decide whether Hong Kong laws complied with the Basic Law, which provided the legal underpinning for post-handover Hong Kong.

"(China's) constitution and the Basic Law jointly form the constitutional foundation of (Hong Kong)," he added.

"Whether Hong Kong's laws are consistent with the Hong Kong Basic Law can only judged and decided by the NPCSC.

"No other authority has the right to make judgments and decisions."

The decision had also "weakened" the administrative power of the city's leader, Zan said.

On Monday, a Hong Kong court ruled in favour of pan-democrats by declaring the government's mask ban unconstitutional.

The decision has forced police to suspend enforcement of the mask ban, while legal experts in mainland China floated the possibility of another legal interpretation being issued by Beijing.

Anti-mask law in Hong Kong ruled unconstitutional by High Court

In a strongly-worded statement, Yang Guang, spokesman of the State Council's Hong Kong and Macau Affairs Office (HKMAO), Beijing's highest policy office on Hong Kong matters, also warned the court ruling would have a "serious and negative sociopolitical impact".

"We will closely monitor the development of this case. We hope that the Hong Kong government and the judiciary would strictly follow the Basic Law in performing their duties, and share the responsibility in stopping violence and chaos, as well as in restoring order," Yang added.

Lau Siu-kai, vice-chairman of The Chinese Association of Hong Kong and Macau Studies, said the two statements showed the NPCSC would take action shortly.

"(The NPCSC) can come up with a decision that the Emergency (Regulations) Ordinance is in conformity with the Basic Law … I expect the Standing Committee to act very soon," he said.

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Under Article 158 of the Basic Law, the power of interpretation of the Basic Law is vested in the NPCSC.

While Hong Kong courts may also interpret other provisions of the Basic Law, the courts must follow relevant NPCSC interpretations.

The Prohibition on Face Covering Regulation, made the law via emergency powers not used in more than half a century, forbids anyone from wearing "facial coverings" likely to conceal identity at public assemblies.

Those convicted face up to one year in jail and a HK$25,000 (US$3,187) fine.

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Two High Court judges, Anderson Chow Ka-ming and Godfrey Lam Wan-ho, on Monday ruled that the colonial-era Emergency Regulations Ordinance (ERO) that brought the ban on face coverings in public places into effect last month was "incompatible with the Basic Law" when used in times of public danger, such as in the present case.

They also found the new law had imposed invalid restrictions on fundamental rights and freedoms.

Since Hong Kong returned to Chinese rule in 1997, the NPCSC has issued five interpretations of the Basic Law, in 1999, 2004, 2005, 2011 and 2016.

The issues involved ranged from right of abode, the city's political reforms, the chief executive's tenure, lawmakers' oath of office and the city's policy on state immunity.

The NPCSC has also issued three decisions on Hong Kong issues, in 2004, 2007 and 2014. The three decisions all centred on electoral reforms for the city.

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In the statement released on Tuesday, Yang said the HKMAO had major concerns with the ruling, saying the emergency powers legislation was recognised by the NPCSC in February 1997 as compatible with Hong Kong's mini-constitution.

"This means all regulations under the ordinance are compatible with the Basic Law. Hong Kong's chief executive and the Executive Council were doing their job under the Basic Law and the NPCSC's decision when they enacted the Prohibition on Face Covering Regulation," Yang argued.

He also said since its implementation, the anti-mask law had "played an active role in stopping violence and chaos".

As of Thursday, 632 people had been arrested for violating the regulation, according to police statistics obtained by the Post.

"The ruling of the High Court's Court of First Instance … was a blatant challenge to the authority of the NPCSC, and on the governing powers granted to the chief executive under the law," Yang added.

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