Beijing’s denunciation of court decision raises questions over judicial autonomy

Protesters have taken to Hong Kong’s streets for six consecutive months to fight what they see as the rapid erosion of their legally enshrined rights and freedoms by Beijing. In their view, the Chinese government proved their point in dramatic fashion on Tuesday morning.

Less than 24 hours after a Hong Kong court had ruled that a mask ban implemented last month was unconstitutional under the Basic Law, the city’s mini constitution, China’s parliament issued a scathing denunciation of the legal decision. By wading into the debate so quickly and so forcefully, the National People’s Congress all but declared that if Hong Kong’s highest court did not reinstitute the mask ban, it would do so itself.

“Whether the laws of Hong Kong can comply with the Basic Law can only be decided by the NPC Standing Committee,” the NPC said in a statement published by state news agency Xinhua. “No other authority has the right to make [such] judgments.”

The NPC Standing Committee’s right to be the final arbiter of disputes involving the Basic Law is widely accepted in Hong Kong. But many were caught off guard by the suggestion that a lower-level Hong Kong court could not make such determinations as well, albeit with the knowledge that its rulings might be overruled by Hong Kong’s Court of Final Appeal or the NPC.

Wilson Leung, a barrister and spokesman for the Hong Kong-based Progressive Lawyers Group, a pro-democracy legal group, labelled the intervention “shocking”.

“The NPC’s power to overrule Hong Kong courts on Basic Law matters . . . is itself problematic,” he said. “But this takes it to a new low, to say that Hong Kong courts have no power to interpret the Basic Law, contrary to what they have been doing day in, day out for the past 22 years.

“Our separate and independent legal system, based on the common law, is one of the critical features of one country, two systems and Hong Kong’s autonomy,” he added. “Beijing appears to be taking further steps to tear that up.”

Martin Lee, who helped write the Basic Law and founder of Hong Kong’s Democratic party, called the statement “alarming”.

It “would be a very, very dangerous step to take away the power of adjudication from our courts and give the power back to Beijing”, he added. The Hong Kong Bar Association said the NPC statement was “legally incorrect”.

The NPC objected to the court’s finding that an emergency powers ordinance triggered last month by Carrie Lam, the territory’s chief executive, to issue the ban was at odds with the Basic Law.

Instead, it asserted that only the NPC could make such a decision as the ultimate authority on constitutional matters relating to Hong Kong according to the “one country, two systems” framework under which the territory has been governed since the handover from British to Chinese rule in 1997.

That formula was originally conceived by Deng Xiaoping, the former Chinese leader. It allows Hong Kong to operate as one of only two cities in China — alongside the former Portuguese colony of Macau — where residents enjoy freedom of expression, a free media, an independent judiciary and an uncensored internet.

In Beijing’s view, however, it is Hong Kong’s courts and liberal-minded justices and lawyers who are “tearing up” the one country, two systems framework.

The NPC said it had formally incorporated the emergency powers ordinance and an entire body of other colonial-era legislation into the Basic Law.

Recommended The Big Read Hong Kong: ‘You either have the rule of law or you don’t’ Tian Feilong, an expert on Hong Kong’s one country, two system at the Beijing University of Aeronautics and Aviation, argued that the territory’s court had effectively “overruled the NPC’s [1997] decision”.

If Hong Kong’s Court of Final Appeal did not reinstate both the emergency powers act and the mask ban, Mr Tian added, the NPC would have no choice but to formally “clarify the law again [in order to] guide Hong Kong courts’ correct understanding of the Basic Law”.

Such legal “interpretations” have become a regular and controversial feature of Hong Kong’s legal system since the first one was issued in 1999.

In the most recent instance, in 2016, the NPC ruled on a Basic Law provision requiring legislators in the territory to swear an oath of allegiance to the special administrative region and the Chinese state.

The interpretation said that anyone who did not do so in a “solemn” fashion had violated the Basic Law, leading to the expulsion of six pro-democracy legislators who had altered their oaths in ways that Beijing deemed insulting.

Article originally appeared in Financial Times on 20 November 2019