On Thursday, April 9, the Hong Kong Court of Appeal (Court or COA) affirmed in part and reversed in part a lower court ruling from last November that partially invalidated the city’s “mask ban”: a prohibition on wearing facial covering that prevents identification in certain public gatherings. In sum, the Court upheld the colonial-era emergency law serving as the legal basis for the ban and allowed the government to enforce the ban in unauthorized public gatherings. Below we will focus on a section of the COA’s opinion that held that Hong Kong courts may strike down laws enacted before Hong Kong’s 1997 handover to China that are later found to violate the Hong Kong Basic Law, notwithstanding a prior determination by the NPC Standing Committee (NPCSC) to the contrary.
Background & Decision Below
In 2019, Hong Kong witnessed months of protest and social unrest after the city government introduced a bill that would allow it to extradite criminal suspects to jurisdictions including mainland China. As violence mounted, the government invoked the “public danger” provision of the Emergency Regulations Ordinance (ERO), the colonial-era law referred to above, to promulgate the mask ban. Both the mask ban and the ERO were immediately challenged in the Court of First Instance (CFI), which held in part that the ERO’s “public danger” provision violated the separation of powers under the Basic Law.
In urging the CFI to uphold the ERO, the government relied on a 1997 NPCSC decision on the legal status of pre-handover Hong Kong laws. This decision was an exercise of the NPCSC’s authority under Article 160 of the Basic Law, which provides in relevant part:
香港特别行政区成立时，香港原有法律除由全国人民代表大会常务委员会宣布为同本法抵触者外，采用为香港特别行政区法律，如以后发现有的法律与本法抵触，可依照本法规定的程序修改或停止生效。
Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the [NPCSC] declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.
In accordance with this Article, the 1997 decision declared an array of laws completely or partially “in contravention of the Basic Law” and thus “not adopted as the laws of Hong Kong.” All other laws—including the ERO—were then adopted as Hong Kong law. The decision, like Article 160, contemplated that these latter laws could be “later discovered to be in contravention of the Basic Law.”
According to the government’s argument below, the fact that the NPCSC did not invalidate the ERO in 1997 should be “a factor in favour of [the ERO’s] validity.” ¶ 94. But the CFI declined to place “overriding weight” on this fact without “any further information about [the 1997 decision’s] screening process and the reasoning and materials involved.” Id. “Indeed,” it observed, “Art 160 envisages that laws may subsequently be discovered to be in contravention of the Basic Law.” Id.
COA Decision
Although the COA ultimately upheld the ERO, ¶ 153, it agreed with the CFI that the 1997 decision was not “final or conclusive on the constitutionality of the ERO”—and that “the constitutionality of the ERO is still subject to judicial scrutiny,” ¶ 45.
The Court started by noting that Article 160 and the 1997 decision both “envisage” that laws adopted by the NPCSC as laws of Hong Kong could later be found to violate the Basic Law. ¶ 49.
It then held that Article 160’s reference to “amended or ceased to have force” does not bar judicial invalidation. Because that phrase “connotes a legislative procedure,” it simply does not “apply to judicial procedure.” ¶ 47. The Court suggested instead that Hong Kong courts’ authority to strike down pre-handover laws is inherent in their power of judicial review. See id. Thus, the Court held:
[T]he constitutionality of [a pre-handover] law can be dealt with either by legislative procedure or judicial process when a challenge is mounted in court whereupon the court has the jurisdiction and indeed the constitutional duty to deal with the constitutionality issue and, if found to be the case, to declare such a law to be in contravention of the [Basic Law]. ¶ 49.
The Court was careful to add that such an authority does not act “in any way to diminish the authority of the NPCSC’s Decision.” ¶ 50. It reconciled its holding with that decision by reading the latter as itself “maintain[ing] the preeminence” of the Basic Law. Id. As a result, the Basic Law, not the 1997 decision, is the ultimate measure of pre-handover laws’ validity. As the Court elaborated:
When law develops . . . to cater for the changing needs of the society, it is not inconceivable that a [pre-handover] law which was formerly constitutional compliant might be found in contravention of the [Basic Law (BL)] later when examined against the context of the current societal circumstances and by reference to the contemporaneous jurisprudence. If and when it happens, the court will declare that law, which is no longer constitutional compliant, to be in contravention of the BL, thereby safeguarding the preeminence of the BL as a living constitutional instrument over all [pre-handover] laws even after adoption as laws of [Hong Kong]. This is entirely consistent with the purpose of [Article 160] and the NPCSC’s Decision. ¶ 50 (emphasis added).
This reasoning seems to us to have gone further than what the CFI had held below. The latter court at least suggested that if there were evidence that the NPCSC had affirmatively determined the ERO to conform to the Basic Law, it would be willing to give some (if not overriding or dispositive) weight to that determination. The COA, on the other hand, would not give the NPCSC’s determination any weight. Indeed, the Court assumed in the paragraphs quoted above that the NPCSC had found a pre-handover law “constitutionally compliant,” but nonetheless emphasized the judiciary’s “duty” to invalidate that law if it is later found to contravene the Basic Law as interpreted by Hong Kong courts.
Collision Course?
Readers may recall that the NPCSC Legislative Affairs Commission issued a strongly worded statement criticizing the CFI’s ruling. The Commission asserted that the NPCSC’s 1997 decision, by adopting the ERO as part of Hong Kong law, was an affirmative declaration of the ERO’s conformity with the Basic Law. The statement suggested that once the NPCSC had so decided, no Hong Kong court may decide otherwise, as the CFI did.
To be sure, the COA upheld the ERO, thereby mooting the Commission’s another concern that the CFI’s ruling had weakened the Chief Executive’s authority. But before doing so, the Court doubled down on the judiciary’s duty to enforce the Basic Law—that the courts’ power to invalidate unconstitutional laws is not constrained by any NPCSC determination to the contrary.
As this post goes online, it is still early morning in China. It would be interesting to see whether the NPCSC will issue another statement repudiating the COA’s decision, when the challengers of the ERO and the mask ban have already said that they would seek further review in the Court of Final Appeal. We will keep you posted.
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