A Hong Kong court is mulling over whether to suspend its ruling to declare the government’s anti-mask law unconstitutional after a request on Thursday by the justice department which argued there was a need to quell the festering social unrest.
Court of First Instance Justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho said they would make their decision – seen as highly politically charged after their earlier ruling drew Beijing’s ire – on a later day after the Department of Justice sought to keep the law in place for now, asserting that it had been working.
Barrister Benjamin Yu SC, for the justice secretary, revealed the department was poised to file an appeal as soon as the court had made a decision on the suspension.
While courts in Hong Kong sometimes decide immediately after hearing the parties’ arguments, the two judges decided to reserve judgment and take time to deliberate before handing down their much-anticipated ruling.
The earlier arrangement for two judges to preside over the case – as opposed to the convention of one – also highlighted the significance of the issue at stake.
The two justices said they would inform the government, which is the respondent, and the 24 pro-democracy lawmakers and activist “Long Hair” Leung Kwok-hung who brought the case, when they had come to a conclusion.
On Monday, the two judges decided that the government’s anti-mask law, implemented in October by Hong Kong leader Carrie Lam Cheng Yuet-ngor, had gone beyond what was necessary to achieve the authorities’ goal to deter people from taking part in the increasingly violent anti-government protests.
They also ruled Lam’s use of a colonial-era Emergency Regulations Ordinance, invoked on the grounds of public danger, to enact the mask ban unconstitutional.
A day after the ruling, Zang Tiewei, spokesman of the Legislative Affairs Commission of the National People’s Congress Standing Committee (NPCSC), said only the Standing Committee had the power to decide whether Hong Kong laws complied with the Basic Law, the city’s mini-constitution.
The remark prompted critics to express fears that Beijing could issue an interpretation to override the court’s ruling. Under the Basic Law, Beijing has the right to give an interpretation which is deemed as final and binding, and while accepted by the legal fraternity, is also seen as a last resort move that if used prematurely could weaken the judiciary.
It emerged on Wednesday that the justice department had written to the judges to keep the ban and the emergency provision “valid and of legal effect” until a final verdict was reached, ahead of the hearing on Thursday.
On Thursday, Yu urged the court to take into consideration the immediate effect of striking down the ban.
Hong Kong has been rocked by more than five straight months of protests, which have turned increasingly violent with radical protesters hurling petrol bombs on the streets and vandalising shops with ties to mainland China. What began as peaceful marches to oppose a now-withdrawn extradition bill have shifted focus onto allegations of police brutality.
Yu said: “If there is no immediate suspension, the court effectively tells you it’s okay to wear a mask and join the protest.”
Gladys Li SC, for the lawmakers, questioned how the court could allow people to be arrested, detained, and even charged over a criminal offence that fell foul of the constitution.
“That in itself is a threat to the rule of law,” she said.
Soon before the hearing, lawmaker Dennis Kwok Wing-hang, who led other legislators in filing the court action, said they resisted the department’s application because it would be a serious infringement of human rights to use a law already declared unconstitutional to arrest people.
Law professor Stuart Hargreaves from Chinese University said seeking a suspension in such a manner “[was] rare, but not unheard of”.
“There must be a significant danger that can only be averted by suspension,” he said, adding that it would not be afforded out of the mere courtesy to the government according to past top court rulings.
Barrister Ronny Tong Ka-wah SC agreed, saying that the court would calculate what both sides would suffer if it granted the concession. Whether the damage was reversible was also vital, he said.
He believed that the judges delayed their decision because they wanted to be cautious, knowing that the government would take their judgment to an appeal court for further scrutiny.
Since the central government’s assertion on Tuesday, Maria Tam Wai-chu, deputy director of the Basic Law Committee, called it Beijing’s “warning shot” to urge Hong Kong’s courts not to overstep their power.
Legal experts in the city, including the Bar Association, said it had been a well-established practice for Hong Kong judges to deal with cases involving the Basic Law. Former chief justice Andrew Li Kwok-nang called Zang’s remarks “surprising and alarming”.
The Law Society joined the chorus on Thursday.
“Nothing should be said or done that will undermine, or will be perceived to undermine, judicial independence and the rule of law in the Hong Kong Special Administrative Region,” it said in a statement.
Law professor Jerome Cohen, who heads the US-Asia Law Institute at New York University, said: “This view seems plainly contrary to the system established under Article 158 of the Basic Law, which contemplates the possible consideration of constitutional questions by the Hong Kong courts prior to final determination by the NPCSC, as has occurred previously.”
But he doubted the suggestions Beijing intended to deprive the city’s courts the power to rule on constitutional cases once and for all.
“The NPCSC is likely to content itself with invalidating the Hong Kong court decision without denying Hong Kong courts the right to have made it,” Cohen said.
By Friday morning, lawyers involved in the case said the court was yet to contact them regarding the handing down of the judgment. One of the lawyers expected the decision to come that day, after the judges said they would give “short notice”.
The judiciary website did not give the cases's latest status.
Under established procedures, the secretary for justice, whose representatives had indicated they would appeal as soon as the court reached a decision on the suspension of its earlier ruling, can then take the case to the Court of Appeal. Whether it will be expedited is in the hands of the court, which will look at the urgency of the matter, the court’s availability and lawyers’ diaries.
Should there be a further appeal to the top court, the losing party requires either permission from the Court of Appeal or directly from the Court of Final Appeal, which is only granted in a case involving “reasonably arguable” merits.
There is a “leapfrog procedure” that allows a party to take its first appeal directly to the Court of Final Appeal.
But the lawyers, who preferred not be named as they were involved in the case, said the bypassing move would not be applicable in the present case because it involves arguments on the Basic Law, the city’s mini-constitution.
It would only apply if appeals courts had ruled previously on the legal argument at issue. But this is the first time the constitutionality of the city’s emergency law has been challenged since Hong Kong was handed back to China in 1997.
Additional reporting by Gary Cheung
More from South China Morning Post:
- Why Beijing’s angry reaction to Hong Kong High Court’s mask ban decision prompts fears it will overturn ruling
- Hong Kong Department of Justice asks High Court to suspend ruling that anti-mask law is unconstitutional – as it scrambles to defend the legislation