Courts have no power to rule on mask ban, says Beijing

Top News | Jane Cheung 20 Nov 2019

China's top legislative affairs institution says Hong Kong courts have no power to rule on the constitutionality of the anti-mask ban under the Basic Law.

The Legislative Affairs Commission yesterday said the Standing Committee of the National People's Congress is the sole authority to rule on constitutional matters in Hong Kong.

The statement came a day after the High Court ruled that a mask ban implemented during the unrest was unconstitutional, sparking concerns of yet another interpretation of a Hong Kong law.

The judgment was handed down on Monday in response to judicial reviews brought by 24 pro-democracy lawmakers and former legislator "Long Hair" Leung Kwok-hung.

High Court judges Godfrey Lam Wan-ho and Anderson Chow Ka-ming said the ban - invoked under the Emergency Regulations Ordinance on October 5 - was incompatible with the Basic Law and imposed unnecessary restrictions on people's fundamental rights.

Following the ruling, the government and police said the anti-mask law will no longer be enforced.

But Jian Tiewei, a spokesman for the mainland commission, said: "Whether the laws of the Hong Kong Special Administrative Region comply with the Basic Law can only be judged and decided by the Standing Committee of the National People's Congress."

Jian said the ruling had "severely weakened the governance" of Chief Executive Carrie Lam Cheng Yuet-ngor.

Yang Guang, spokesman for the Hong Kong and Macao Affairs Office of the State Council, said the ban was in line with the Basic Law and Lam's decision to invoke it was within her powers under the Basic Law.

"The invocation of the law has played an active role in curbing violence and unrest," he added.

Lam said she understood that Beijing "is concerned about developments following the court's ruling."

But she said imposing the anti-mask law by invoking the Emergency Regulations Ordinance had a legal basis.

The court will hold a hearing today to decide the relief and costs of the judicial review.

The Hong Kong Bar Association said Jian's remarks are "legally incorrect," and that it is the judicial officers' sworn duty to decide whether a legislative provision is in contrary to the Basic Law.

It said suggestions that interpretation should be made by the NPC "could be perceived to be intended to put pressure on the judiciary," which is a disrespect for the rule of law.

Civic Party lawmaker Dennis Kwok Wing-hang, one of the plaintiffs of the judicial review, said Jian's remarks were worrying. "It's exaggerated to say a SAR court does not have the power to rule over whether a local law is unconstitutional and the claim is unfounded," he said.

Kwok added: "If the court really has no power and all constitutional matters have to be decided by the commission, it is truly the end of the local judiciary."

He warned the government not to seek an interpretation, saying it would likely "add fuel to the fire" and worsen the political situation.

Maria Tam Wai-chu, deputy director of Beijing's Basic Law Committee, said the government should appeal the case to the Court of Final Appeal.

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