Court ruling, not anti-mask law, is unconstitutional

The Court of First Instance (CFI) of the High Court of the Hong Kong Special Administrative Region announced on Monday that some provisions of the Emergency Regulations Ordinance of the HKSAR, which was the statutory basis for the HKSAR government to introduce the Prohibition on Face Covering Regulation, commonly known as the "anti-mask law", are incompatible with the Basic Law of the HKSAR. It also determined that some of the rules in the anti-mask law have gone too far in restricting certain individual rights protected by the Basic Law and are therefore unconstitutional. The CFI ruling is shocking, to say the least, because the presiding judges over this judicial review case are obviously not familiar with the Basic Law at all.

The CFI ruling came as a huge disappointment to numerous members of the public and left many in the legal profession speechless with its lack of rudimentary knowledge about the Basic Law in the first place. Sure enough, the Legislative Affairs Commission of the Standing Committee of the National People’s Congress responded the following day, when a spokesperson for the commission read an official statement from the country's highest body of state power. In the statement, the Legislative Affairs Commission expressed its "deep concern" over the CFI ruling. It went on to remind the public that "the Constitution and Basic Law together form the basis for the special administrative region" and "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."

These quotes are ground enough to determine that it is the CFI judges concerned who went beyond the court's constitutional right and power by making a decision they do not have the authority to make. If they had read the Basic Law of the HKSAR carefully from beginning to end, they should have found a good reason to reject the judicial review application instead of making such a blunder over constitutionality.

The commission statement also offers clarification of the constitutionality of the Emergency Regulations Ordinance as follows: "In accordance with Article 8 of the Basic Law of the HKSAR, the laws previously in force in Hong Kong, including the Emergency Regulations Ordinance, shall be maintained except for those that contravene the Basic Law of the HKSAR or that have been amended by the legislative body of the HKSAR." That means the CFI panel failed to correctly understand and follow the Basic Law not only in regard to its constitutional boundary but also over its judgment of the constitutionality of the Emergency Regulations Ordinance. In short, it made a wrong call that it is not qualified to make in the first place.

Now, according to the Basic Law and relevant Hong Kong law, the SAR government is obligated to appeal the CFI decision to the Court of Appeal or even the Court of Final Appeal in the name of procedural justice. If the Court of Appeal and Court of Final Appeal both agree with the CFI, the Standing Committee of the NPC will have no choice but to exercise its exclusive right of interpreting the relevant articles of the Basic Law once and for all.

People should know that it would not be the first time the NPC Standing Committee has had to set the record straight that way. And it would never shirk its responsibility, if past experience is anything to go by. Let's hope the High Court will not put its credibility in doubt again with decisions that are clearly incompatible with the Basic Law.