One country, two legal systems: Hong Kong’s judiciary explained

Inkstone 發布於 2019年11月20日00:11

A Hong Kong court on Monday ruled that the government's move to ban face coverings at public assemblies was "unconstitutional."

It was a vindication of sorts for the masked demonstrators who have rocked the city for months in increasingly confrontational protests, where they have called for police accountability and electoral reform.

But if supporters of the protests felt a sense of relief, it was a short-lived one.

The next day, a spokesman for a top legislative committee in Beijing criticized the ruling, arguing that the Standing Committee of the National People's Congress, China's top legislative body, is the only authority that can decide on the constitutionality of Hong Kong laws.

The dispute has highlighted Hong Kong's unique, independent judicial system and its relations with Beijing's Communist Party-controlled legal system.

The Goddess of Justice sculpture at the Hong Kong's top court, the Court of Final Appeal in Central.

The former British colony returned to Chinese rule in 1997 as one of only two highly autonomous cities in China that would enjoy independent judicial power. (The other is Macau, a former Portuguese colony and now a gambling mecca.)

In fact, the social unrest that led to the anti-mask law was triggered by a deep distrust of the mainland judiciary among Hong Kong people who were concerned about the consequences of a now-withdrawn extradition bill.

Here's what you need to know about Hong Kong's unique judicial system.

Why does Hong Kong have a different judicial system from Beijing?

A common law system was introduced after Hong Kong Island became a British colony in 1841.

For the first few decades of British rule, the judiciary was run by English-speaking expatriates, and later more Chinese judges joined the bench.

When Hong Kong was handed over to Chinese rule in 1997 under a "one country, two systems" arrangement, the common law system was retained according to the city's mini-constitution, the Basic Law.

The Basic Law enshrines the city's independent judicial power as well as a continuation of the common law system for at least until 2047.

Hong Kong judges and barristers still wear British-style outfits.

Today, Hong Kong judges and barristers still wear British-style outfits, including the horsehair wigs. Many proceedings in higher courts are conducted in English, although interpretation services are provided to Chinese speakers.

While the legal system in the mainland has been criticized for failing to protect citizens from state suppression, Hong Kong's courts have been able to rule against the government in favor of individual liberty.

What role does the Chinese government play in the system?

Under the Basic Law, the power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress, or NPCSC.

But legal experts say Beijing has exercised self-restraint in using the power, knowing that Hong Kong's prosperity depended on its autonomy and judicial independence.

Since Hong Kong's handover more than two decades ago, NPCSC has offered its interpretation of the mini-constitution on five occasions.

Separately, the NPCSC has issued three decisions on Hong Kong's electoral reforms, in 2004, 2007 and 2014. The 2014 decision triggered the Umbrella Movement by requiring that candidates for Hong Kong's leader be vetted by a pro-Beijing committee.

The Chinese government has slammed the ruling on the anti-mask law by Hong Kong's High Court.

Democracy advocates in Hong Kong have cited some of the cases as examples of Beijing's meddling with the city's rule of law.

Most recently, they have pointed to a case in 2016, where NPCSC ruled that Hong Kong lawmakers must swear allegiance properly to Hong Kong as part of China during oath-taking, before a Hong Kong judge was able to make a ruling.

Although Hong Kong's top court later ruled that the judiciary would have made the same decision without Beijing's interpretation, many criticized the NPCSC decision as an attempt to pre-empt the city's courts and hence a blow to the power of the judiciary.

Many protesters have continued wearing masks at protests after the anti-mask law was enacted.

Why did Hong Kong's High Court say the anti-mask law was unconstitutional?

The government enacted the anti-mask law by invoking the city's Emergency Regulations Ordinance, which gives Hong Kong's leader sweeping powers if they consider Hong Kong to be in "an occasion of emergency or public danger."

However, the court found the "near-blanket prohibition" of face coverings at public assemblies exceeds what's "reasonably necessary" to enforce laws on violent protesters.

It ruled that it was "unconstitutional" to invoke the Emergency Regulations Ordinance on the "public danger ground" alone, because of the law's wide scope and the lack of control by the city's legislature.

Journalists wearing protective masks at a police press conference in October to protest against police's treatment of the press.

Why did Beijing object to the ruling?

The NPCSC spokesman's comment on the anti-mask law ruling was Beijing's most direct criticism toward Hong Kong's judiciary since the protest movement began in June.

Zhan Tiewei, a spokesman for the NPCSC's Legislative Affairs Commission, said the ruling "did not comply" with aspects of Hong Kong's mini-constitution.

Yang Guang, a spokesman of the State Council's Hong Kong and Macau Affairs Office, Beijing's highest policy office on Hong Kong matters, also warned the court ruling would have a "serious and negative socio-political impact."

In Hong Kong, the comments have prompted concerns that the city's rule of law is under threat.

Beijing has yet to give a hint on whether it will seek to overturn the court ruling. Such a move would likely further antagonize Hong Kong's protesters.

Copyright (c) 2019. South China Morning Post Publishers Ltd. All rights reserved.