NPCSC Legislative Affairs Commissions Criticizes Hong Kong Court’s Mask Ban Ruling, Signals Possible NPCSC Intervention

To not bury the lede, we start by noting that the Legislative Affairs Commission of the NPC Standing Committee (NPCSC) issued a statement (Xinhua’s English report) today (November 19) criticizing a Hong Kong court’s ruling yesterday that partially invalidated a Hong Kong statute for violating the Hong Kong Basic Law, the city’s mini-constitution. The statement suggested that the NPCSC, with the ultimate authority over the interpretation of the Basic Law (see art. 158), might decide to adopt a contrary interpretation. We more fully explain the relevant events and legal arguments below.

Mask Ban & Court Ruling

Amid Hong Kong’s still ongoing protests that originally started in opposition to the government’s proposed extradition bill (which was eventually withdrawn), the government on October 4 invoked a colonial-era law to enact regulations banning the wearing of facial covering (including masks and paint) in several categories of public gatherings (“mask ban”). That law, the Emergency Regulations Ordinance (ERO), authorizes Hong Kong’s Chief Executive—after consultation with the Executive Council and without the Legislative Council’s prior consent—to “make any regulations whatsoever which [s]he may consider desirable in the public interest” on any occasion she considers “an occasion of . . . public danger.” § 2(1).

The mask ban, and the ERO provisions on which the ban was based, were immediately challenged in the Hong Kong Court of First Instance (CFI). On Monday, November 18, the CFI ruled against the government, holding in part that the ERO violated the separation of powers under the Basic Law. The CFI concluded (¶ 97):

It is the power and function of the [Legislative Council] as the designated legislature of the Hong Kong [Special Administrative Region] to legislate. Other bodies cannot consistently with the constitutional framework be given general legislative power . . . . [I]nsofar as the public danger ground is concerned, the ERO is so wide in its scope, the conferment of powers so complete, its conditions for invocation so uncertain and subjective, the regulations made thereunder invested with such primacy, and the control by the [Legislative Council] so precarious, that we believe it is not compatible with the constitutional order laid down by the Basic Law . . . .

NPCSC Legislative Affairs Commission’s Arguments

As noted earlier, the NPCSC’s Legislative Affairs Commission issued a statement lambasting the CFI’s ruling. Depending on how charitable a reading one gives to the statement, it makes either a legal argument that (if it becomes the law) would severely weaken Hong Kong’s judiciary or one that is not so far-reaching in its reasoning but with practical consequences no less problematic.

First, the statement says (our translation): “We believe that . . . whether a law of the Hong Kong Special Administrative Region is compatible with the Hong Kong Basic Law may only be judged and determined by the NPCSC, and that no other organ has the authority to make such a judgment or determination.”

Read in isolation, this portion of the statement seems to assert that Hong Kong courts may not review the constitutionality of Hong Kong statutes. Such a view is diametrically opposite to the long-standing role that Hong Kong courts have assumed since as early as 1999, when the Hong Kong Court of Final Appeal (CFA) unanimously held the following in Ng Ka Ling v. Director of Immigration (¶ 61):

In exercising their judicial power conferred by the Basic Law, the courts of the Region [i.e., Hong Kong] have a duty to enforce and interpret that Law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region . . . [is] consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law . . . is invalid at least to the extent of the inconsistency. Although this has not been questioned, it is right that we should take this opportunity of stating it unequivocally. In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.

In reaching this conclusion, the CFA seems to have relied on Article 19, paragraph 1 of the Basic Law (see ¶ 60). That provision vests the courts of Hong Kong with “independent judicial power, including that of final adjudication.” But the NPCSC could interpret this provision differently, in the manner outlined in the Commission’s statement. (Its power to interpret the Basic Law has been understood by Hong Kong courts to “extend[] to every provision in the Basic Law and is not limited to the excluded provisions referred to in [Basic Law] art. 158(3).” Director of Immigration v. Chong Fung Yuen [2001] HKCFA 48, ¶ 6.2.) Doing so would surely throw Hong Kong’s existing constitutional order into disarray.

Second, the statement could also be read to say only that, once the NPCSC has decided on the constitutionality (under the Basic Law) of a Hong Kong statute, Hong Kong courts may not rule otherwise. On its face, this argument seems uncontroversial, since the CFA has held that Hong Kong courts “are under a duty to follow” the NPCSC’s interpretation of the Basic Law (id.).

But the statement’s reasoning is more problematic. It cited a February 1997 decision of the NPCSC declaring that a few dozen Hong Kong laws in force before the handover on July 1, 1997 were (in whole or in part) “in contravention of the Basic Law” and thus not “adopted as laws” of Hong Kong post-handover. Because the ERO was not among those laws, the Commission argued that “[the ERO] is therefore compatible with the Basic Law.” While it is uncontroverted that the NPCSC had the authority to adopt that decision under Article 160 of the Basic Law, the Commission’s conclusion does not necessarily follow. It is not obvious that a law’s absence from the list of laws declared invalid was conclusive evidence that the NPCSC had affirmatively declared it valid under the Basic Law.

To be sure, the accompanying explanation of the 1997 decision said that authorities had spent “over two years comprehensively reviewing and studying Hong Kong’s original laws,” including the ERO. Yet the decision itself (as well as Article 160) contemplate that additional laws could be later found unconstitutional: “If any laws are later discovered to be in contravention of [the Basic] Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by [the Basic] Law.” The CFI has also rejected a similar argument made by the Hong Kong government in its opinion yesterday (¶ 94):

It is submitted that the [NPCSC’s] constitutionality check was conducted prior to 1997 and the NPCSC did not consider the ERO to be in contravention of the Basic Law. The [government] respondents only rely on this as a factor in favour of validity, and do not submit that the absence of rejection by the NPCSC has the effect of precluding any future finding that the ERO contravenes the Basic Law. Indeed, Art 160 envisages that laws may subsequently be discovered to be in contravention of the Basic Law. In the absence of any further information about that screening process and the reasoning and materials involved, however, we are respectfully unable to place overriding weight on this factor.

Were the NPCSC to interpret Article 160 (and its 1997 decision) to have the sort of preclusive effect as claimed by the Commission in its statement, it would bring countless laws—those not included in and thus not declare invalid by that decision—outside the purview of constitutional review by the courts of Hong Kong. This would be an outcome no less troubling than a wholesale abrogation of Hong Kong courts’ power of constitutional review.

What Could Come Next?

The Commission concluded that the mask ban ruling was “inconsistent with the provisions of the Basic Law and the relevant decision of the NPCSC” and stated that it is “studying the relevant suggestions and recommendations by some NPC delegates”—who, the Commission noted earlier in the statement, “expressed strong disapproval” of the ruling.

What could those “suggestions and recommendations” be?

The NPCSC could certainly wait for Hong Kong’s appellate courts to reach a contrary result—one that it would deem acceptable—on appeal. But assuming that the appellate courts would not do so or that the NPCSC is unwilling to wait, it seems to us that it will have to interpret the Basic Law in either of the two ways we discussed above, so as to repudiate the CFI’s mask ban ruling.

As we discussed at the time of the NPCSC’s latest interpretation of the Basic Law in 2016, it may interpret the Law on its own initiative, without being requested by the Hong Kong government, the State Council, or the CFA. In any case, the views of the NPCSC Legislative Affairs Commission outlined above would be significant, for it would likely be in charge of drafting any potential interpretation.

The NPCSC could interpret the Basic Law as early as at its regular session in late December; an emergency session is unlikely.

(Thanks to Taige Hu for immensely helpful research assistance)


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