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HK court's ruling draws criticism

By LI BINGCUN in Hong Kong and ZHANG YANGFEI in Beijing | China Daily | Updated: 2019-11-20 03:14
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Carrie Lam Cheng Yuetngor, chief executive of the Hong Kong Special Administrative region, witnesses new Commissioner of Police Tang Pingkeung take his oath of office in Hong Kong on Tuesday. [PHOTO PROVIDED TO CHINA DAILY]

Top legislature says no other entity has right to judge ordinance's conformity with Basic Law

A ruling by the High Court in Hong Kong related to the Emergency Regulations Ordinance and the anti-mask law has drawn severe criticism from central authorities and legal professionals who expressed concern that such a ruling challenges the authority of the country's top legislature and will have a serious negative social and political impact.

The Legislative Affairs Commission of the Standing Committee of the National People's Congress — the country's top legislature — as well as the Hong Kong and Macao Affairs Office of the State Council and the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region all voiced deep concerns on Tuesday over the ruling.

The Court of First Instance of the High Court of the Hong Kong Special Administrative Region ruled on Monday that the provisions of the Emergency Regulations Ordinance, which empower the chief executive to make related regulations under certain circumstances, were inconsistent with the HKSAR Basic Law and that the main elements of the anti-mask regulation was found to be disproportionate to the situation.

The High Court is made up of the Court of Appeal and the Court of First Instance. It has both appellate and original jurisdiction, that is, it can both hear appeals sent to it and try cases first taken to it.

"Whether a law of the HKSAR is in conformity with the Basic Law of the HKSAR can only be judged and decided by the NPC Standing Committee, and no other organ has the right to judge or decide," said Zang Tiewei, a spokesman for the Legislative Affairs Commission of the NPC Standing Committee, adding that the Constitution and the Basic Law together form the constitutional basis of the SAR.

The Emergency Regulations Ordinance in force in Hong Kong was confirmed to be in accordance with the HKSAR Basic Law by decisions of the NPC Standing Committee in February 1997 and adopted as a law of the HKSAR. Therefore, "the ordinance is consistent with the Basic Law", Zang said.

"The ruling of the Court of First Instance of the High Court of the HKSAR has seriously undermined the legitimate power of the chief executive and the HKSAR government to govern in accordance with laws, and is inconsistent with the Basic Law of the HKSAR and the relevant decisions of the NPC Standing Committee," Zang said.

He said some NPC deputies have voiced strong dissatisfaction with the ruling and the top legislature is studying the opinions and suggestions of some top legislators.

Yang Guang, a spokesman for the Hong Kong and Macao Affairs Office of the State Council, expressed concern that the ruling may have a serious negative impact.

"This is a blatant challenge to the authority of the NPC Standing Committee and to the power vested in the chief executive to govern by law. It will have a serious negative social and political impact," Yang said.

The anti-mask law has played a positive role in curbing violence and chaos since it was implemented, Yang said. He called on the HKSAR government and judiciary to jointly shoulder the responsibility of ending violence and chaos and restoring order.

He Junzhi, associate dean of the Institute of Guangdong, Hong Kong and Macao Development Studies at Sun Yat-sen University, said such a ruling will directly lead to the suspension of the anti-mask law. "The HKSAR government will encounter more difficulties in dealing with the current situation," he said.

Hong Kong has witnessed repeated violence and attacks by masked rioters since June. Recently, rioters issued threats and used violence, not only to police but also to people with differing political views. Almost everyone in Hong Kong faces threats amid the social unrest, Chief Executive Carrie Lam Cheng Yuet-ngor said on Tuesday, pointing out that some of those who volunteered to clear roadblocks were assaulted by rioters.

She called for an end to violence and vandalism so that district council elections scheduled for Sunday can be held as planned.

A bus stands gutted by fire in Tsim Sha Tsui, Hong Kong, on Monday. [PHOTO / CHINA DAILY]

Widespread disapproval

Political heavyweight and legal professionals in Hong Kong also expressed their disapproval of the ruling by the High Court.

Barrister and lawmaker Priscilla Leung Mei-fun said the ruling has "crossed the line" of local judicial body responsibilities.

According to Article 158 of the Basic Law, Hong Kong courts are authorized to interpret on their own, in adjudicating cases, the provisions of the Basic Law that are within the limits of the autonomy of the SAR.

However, if the courts need to interpret the Basic Law concerning the relationship between the central authorities and the HKSAR, they should seek interpretation from the NPC Standing Committee, the article reads.

Hong Kong's chief executive is responsible to the central government. Therefore, to judge whether it's constitutional for the chief executive to enact the Emergency Regulations Ordinance is beyond the domain of the SAR's autonomy and should only be decided by the NPC Standing Committee, Leung said.

Cautioning that the ruling may negatively affect the SAR's governance capacity, she urged the government to appeal the ruling to the Court of Final Appeal as soon as possible.

Rita Fan Hsu Lai-tai, former president of Hong Kong's Legislative Council, said the court made the ruling on mere legal grounds without considering the present situation.

There has been continuous unrest in the city, with rioters wantonly harming police and innocent citizens, Fan said, adding that there is a practical need for the anti-mask law amid the turbulence.

"Any court in the world, when making a ruling, considers not only the text of law books or the arguments of legal counsels, it also considers the general environment in which the case occurs," Fan said.

She cautioned that removing the anti-mask law may weaken public safety and bring back an atmosphere of fear and uncertainty caused by masked rioters.

Xinhua contributed to this story.

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