Beijing speaks, not yet rules, on face-mask ban

Nervous observers worried about the rule of law in Hong Kong didn’t have to wait long to gauge Beijing’s stance on the subject. Within 24 hours of the High Court’s ruling that the Hong Kong government’s face-mask ban was unconstitutional, the National People’s Congress Standing Committee issued a statement blasting the decision as being unconstitutional itself. Saying only it (the NPCSC) had the right to rule on constitutional matters, it said the decision had “weakened” the administrative power of the Chief Executive.

This is not yet a breach of the rule of law in Hong Kong. The statement was an opinion, not a ruling. It is, however, evidence of a surprising lack of political nous by members of the NPCSC. By speaking out on an issue that was not vital to the government’s ability to handle the ongoing crisis – a glance at TV footage shows how futile the ban has been – rather than waiting, the NPCSC has pre-empted the Hong Kong government’s efforts to find another way to legally enforce the ban. The High Court’s decision had, in fact, left the door ajar to the government to do this by not ruling on whether the ban was necessary under an emergency situation. 

Moreover, the NPCSC statement has handed a gift-wrapped stick to the New York Times, CNN, et al. These media outlets won’t will likely focus on the holes of the NPCSC argument, particularly that Hong Kong’s courts have issued constitutional interpretations before and are empowered to do so. 

Having said that, there is still time to let this issue subside before it blows up further.  No official interference in the High Court’s judgment has yet taken place. 

If the NPCSC follows up by issuing its own binding interpretation of the face-mask ban, that would be the third time it has decided not to wait out the normal process of being called upon to do so by the Court of Final Appeal. Again, this is not a violation of the rule of law per se, but it is hard to see how it could be defended against charges of violating the “One Country, Two Systems” principle in spirit. The NPCSC is supposed to wait to be called upon by the CFA – unless it is on a matter that is considered NOT to be within the autonomy Hong Kong has been granted under the Basic Law. That autonomy has been widely interpreted, to date, to cover all matters other than those affecting sovereignty, i.e., defense and foreign affairs. 

The first of the two previous unsolicited interpretations occurred in 2004, concerning the amendment of the Chief Executive and the Legco election methods for 2007 and 2008, respectively. Sovereignty? Borderline, but yes, it had to do with relations between the SAR and the Central Government. The second was in November 2016 on the substantive requirements of lawful oaths and affirmations as stipulated in Article 104. That is arguably related to sovereignty.

What happens next, both in Admiralty and in Beijing, will be key. If the High Court issues a ruling citing guidance from the NPCSC in reaching a conclusion, one way or the other, then that would be a clear breach of the rule of law. In the Western sense, that is. 

Another way Western-style rule of law could be brought to a crashing halt in Hong Kong would be if the police decided that the NPCSC’s public statement is enough to satisfy it, and decided to continue enforcing the face-mask ban in defiance of the High Court’s order. 

Hong Kong’s new police chief seems like he would relish such confrontation, judging by his comments to the SCMP today. Calling the protests “close to terrorism”, he said there was no need for an independent enquiry into the police’s use of force in quelling the protests. Although this is not strictly speaking, an attempt to erode the rule of law, it does send a clear signal that the police chief considers himself empowered to have a public opinion on a matter that is supposed to be for his boss to decide. 

None of this should be completely surprising. As was written in this column last week, it is clear that Beijing’s approach to managing Hong Kong has overtly shifted. The rule of law, as defined by China, whereby the courts exist as part of a team effort, rather than independently, on matters determined by the Party, looks likely to be implemented in Hong Kong. How that is manifested in decisions to come, by organs such as the NPCSC, remains to be seen.

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