Statement on the Remarks Made by the Hong Kong and Macao Affairs Office of the State Council on 13 April
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A.「我們注意到,香港特區高等法院上訴法庭於4月9日根據全國人大常委會有關決定，就有關《禁止蒙面規例》的司法复核案作出判決，裁定《緊急情況規例條例》關於行政長官會同行政會議以“危害公共安全”為由訂立緊急情況規例的內容符合基本法…… 糾正了高等法院原訟法庭的原有判決。這有利於行政長官和特區政府依照基本法和香港特區法律有效施政，特別是依法應對處置緊急及危害公共安全的情形，有效止暴制亂、維護社會秩序」; 及
1. On 13 April 2020, the Hong Kong and Macao Affairs Office of the State Council (“HKMAO”) issued two statements that said, among other things (the “Remarks”):
A. the Court of Appeal (“CA”), in accordance with the relevant decision(s) of the Standing Committee of the National People’s Congress (“NPCSC”), ruled that the Prohibition on Face Covering Regulation (“Anti-Mask Regulation”) was compliant with the Basic Law. The CA’s ruling has rectified the ruling of the High Court and it is favourable to the governance of the Chief Executive and the HKSAR, particularly in curbing violence and restoring order during public danger; and
B. a number of opposition legislators have maliciously filibustered the operation of the Legislative Council (“LegCo”) to delay the election process of returning the House Committee’s chairperson for almost six months. They have abused their power to pursue their own political agenda. The actions of those legislators beg the question of whether they have been acting contrary to the official oath and committing the offence of misfeasance in public office.
2. On the same day, the Liaison Office of the Central People’s Government in the HKSAR echoed the Remarks by issuing its own statements to the same effect.
3. A day later at a press conference, the Chief Executive rejected complaints that in making the Remarks, the HKMAO was intervening in the internal affairs of Hong Kong.
4. The Progressive Lawyers Group (the “PLG”) is deeply troubled by the Remarks, which patently run afoul of the Basic Law (“BL”) and the “one country, two systems” (“1C2S”) framework under which the HKSAR is administered.
5. According to the BL:
A. the HKSAR enjoys a high degree of autonomy through enjoying its own executive, legislative and independent judicial power (Article 2);
B. the courts shall exercise judicial power independently, free from any interference (Article 85);
C. the LegCo decides whether there is a breach of oath by a legislator through voting by its own members (Article 79(7));
D. the Department of Justice shall control criminal prosecutions, free from any interference (Article 63); and
E. no department of the Central People’s Government may interfere in the affairs which the HKSAR administers on its own (Article 22(1)).
6. The PLG believes that the Remarks are an affront to all three branches of the HKSAR government.
On one hand, gratuitous and unwelcome commentary from the mainland authorities on the HKSAR’s judicial decisions undermines the city’s independent judiciary, a bedrock of Hong Kong’s economic success and stability.
On the other hand, attacking opposition lawmakers for exercising their right to filibuster or otherwise make their voices heard in LegCo and putting pressure on the local administration to charge those lawmakers with misfeasance serve to weaken both the legislative and the executive branches.
The Remarks add to a long list of examples of increasingly heavy-handed meddling by Beijing in the HKSAR’s local affairs and reinforce a growing perception that the 1C2S framework exists only in name.
7. Furthermore, the PLG has observed a troubling pattern of systematic interference by Beijing in the city’s independent judiciary.
Last November, Han Zheng, Vice Premier of the PRC, remarked that it was “the common responsibility of Hong Kong’s executive, legislative and judicial bodies” to “stop violence and restore order,” implying that the courts should play an active role in crushing the protest movement.
Two weeks later, after the High Court had ruled that the Anti-Mask Regulation unconstitutional, the HKMAO blasted the ruling as “an open challenge to the NPCSC’s authority.”
It is likely that the Remarks were motivated by a similar desire to intervene in the HKSAR”s judiciary by putting pressure on the Court of Final Appeal, should the CA decision on the Anti-Mask Regulation be appealed to the city’s highest court.
8. It is also possible that by accusing opposition lawmakers of acting “in contrary to their oath,” the HKMAO is trying to influence the outcome of the upcoming LegCo General Elections. The Remarks may be construed as putting indirect pressure on the returning officers to ban filibustering lawmakers who are seeking to be re-elected in the elections.
9. The COVID-19 pandemic is expected to have a serious and far-reaching impact on Hong Kong’s economy. The Remarks are particularly ill-timed in that they will further chip away at investor confidence in the city’s long term viability by shaking the very foundation of the city that is the 1C2S framework and the BL. Already, Moody’s and Fitch have downgraded Hong Kong’s ratings, reflecting what one rating agency called “the rising risk of an erosion in the strength of Hong Kong’s institutions.” The Remarks will do nothing but add to those concerns, which are now shared not only by citizens of Hong Kong but also by the international community.
10. The PLG continues to call on the HKSAR Government to safeguard the city’s high degree of autonomy and defend the 1C2S framework. The PLG also calls on all legislators to do the same regardless of their political belief and affiliation.
The Progressive Lawyers Group
15 April 2020