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In Hong Kong, Beijing’s tough talk could spark a constitutional crisis

The rule of law is at the heart of the protests

- November 20, 2019

China’s Legislative Affairs Commission on Tuesday condemned a Hong Kong high court decision to overturn the ban on wearing face masks — which Hong Kong pro-democracy protesters wear to avoid identification by police. The message from Beijing was clear: Only China’s National People’s Congress Standing Committee can decide whether a local law aligns with the Basic Law, which guides Hong Kong’s “one country, two systems” governance.

The Basic Law is designed to protect autonomy, the rule of law and basic freedoms for a period of 50 years after the July 1, 1997, handover to China. Legal scholars, however, cite recent concerns about whether Hong Kong will be able to retain these freedoms and the rule of law. Here’s what you need to know.

1. The rule of law has long been at the heart of Hong Kong protests

Global rule of law rankings in 2019 put Hong Kong near the top, at No. 16, higher than the United States (No. 20) — while China ranks in the bottom half, at No. 82. Hong Kong’s autonomy, and ability to maintain the rule of law, has been at the heart of nearly every protest since the 1997 handover.

Hong Kong’s chief executive, Carrie Lam — in a leadership position determined by Beijing through a Beijing-friendly Election Committee — has little capacity to guard Hong Kong’s autonomy. This perception has helped drive popular demand for the universal suffrage promised as the “ultimate aim” in the Basic Law. During the 2014 “Umbrella Movement,” this was protesters’ key demand.

This same concern with the rule of law has shaped the current protests. At first, the 2019 demonstrations showed broad opposition to an extradition bill that would have allowed Hong Kong to extradite anyone to face criminal justice on the mainland, with limited exceptions. After 1 million and then 2 million protesters marched in successive weeks in June, the government still refused to withdraw the bill. This led to protesters breaking into and occupying the Legislative Council to block the bill’s passage.

2. Clashes with law enforcement led to demands for police accountability

After weeks of protest and violent confrontations by police, the Hong Kong government finally agreed to withdraw the bill. This proved too little too late. Protesters had added four other demands: an independent investigation of police behavior, amnesty for arrested protesters, withdrawal of the characterization of the protest as riots, and the promised democratic reforms.

The demand for an independent investigation has wide support of up to 80 percent on all sides of the political divide. Media coverage shows police manhandling protesters, and using rubber bullets, tear gas and water cannons. The Hong Kong government continues to reject demands for an independent investigation, reinforcing questions on whether the police are above the law.

Rather than addressing the underlying political questions, the government has focused on strengthening law enforcement, including banning all face masks. To hide their identity from police and surveillance cameras, protesters began wearing masks over the summer. Lam promulgated the ban under a 1922 Emergency Regulations Ordinance (ERO), which gives the government wide powers to enact almost any restrictions it likes during an emergency or periods of public danger.

Under a legal challenge, the court found the ERO was incompatible with the Basic Law insofar as it applied to non-emergency public dangers. The High Court further found the ban on masks was essentially too broad and not proportionate to the government’s purpose.

3. Is Hong Kong facing a mini-constitutional crisis?

The Hong Kong Basic Law specifies Hong Kong courts are to be independent and final, and maintain the common law principles inherited from the United Kingdom, as practiced in Hong Kong. It further provides that no laws are to violate the Basic Law. These guarantees alone grant Hong Kong courts the power to exercise constitutional judicial review over legislation.

The Basic Law goes further. After noting the power of interpretation is vested in the NPC Standing Committee, Article 158 provides the Standing Committee “shall authorize the courts … to interpret on their own in adjudicating cases, the provisions of this law which are within the limits of the autonomy of the region.” Further provisions call for referral of interpretations to the Standing Committee for matters beyond the limits of autonomy.

At this point, Beijing appears set to intervene in Hong Kong, not with tanks, but by issuing a legal interpretation that would contravene the Hong Kong High Court’s ruling. A spokesman for the NPC Standing Committee’s Legislative Affairs Commission, Zang Tiewei, slammed the court’s ruling saying, contrary to the above Basic Law guarantees, only the NPC Standing Committee has the power to decide constitutionality of laws. Other PRC offices echoed this view.

This statement may signal the intention of the NPC Standing Committee to issue a concurring interpretation that would be legally binding. Such an interpretation would severely undermine the rule of law in Hong Kong, effectively freeing the Hong Kong government to enact any laws it wanted without an effective challenge in the courts.

What happens next? A NPC Standing Committee intervention could come immediately while the case is still pending, as was the case in a recent Standing Committee interpretation on disqualification of public officials who fail to take their oaths “sincerely.” Or the Standing Committee could wait to see how it is handled on appeal, where pressure on the court to conform to the above NPC Standing Committee view is now apparent.

Beijing’s statement does not sit well with leading lawyers in Hong Kong. Legal scholars see the face mask decision as a matter falling squarely within the scope of local autonomy, which should be a restraint on Standing Committee intervention. But scholars also cite concerns that the previous practice of restraint against Beijing intervention may no longer exist. If Beijing’s response is an indication of what’s to come, Hong Kong’s rule of law may be diminished further.

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Michael C. Davis is a Senior Research Scholar at the Weatherhead East Asia Institute at Columbia University and a Global Fellow at the Wilson Center. He was formerly a professor in the University of Hong Kong Faculty of Law.