Hong Kong High Court decision invalidating mask ban

On November 18, 2019, the High Court of Hong Kong (Court of First Instance) rendered a judgment on a challenge to the Hong Kong government’s ban on face masks, finding it flawed in two main respects. First, the Court found that the executive branch, which enacted the ban, did not have the constitutional power (i.e., power under the Basic Law of the Hong Kong Special Administrative Region, a statute enacted by China’s National People’s Congress) to do so. While the relevant enabling legislation did purport to grant that power, the legislature did not have the power to delegate that power to the executive.

Second, it found that specific provisions of the ban did not meet tests of proportionality—i.e., they went beyond what was necessary to achieve their objective. The Court found in favor of the government’s arguments on other issues. Because the first ground is sufficient for invalidity and because it’s the most politically and jurisprudentially interesting, that’s what I’m going to talk about.

This is really quite an impressive opinion by the Justices, Godfrey Lam and Anderson Chow, who deserve to be singled out by name for their careful, learned, and dispassionate analysis. I imagine it will be completely misunderstood by Chinese officials, who care only about the substance of the decision and can’t believe that anything other than pre-existing political inclination could drive the result.

Ironically, the decision protects the prerogatives of the National People’s Congress and the constitutional scheme it established with the Basic Law. Here’s why.

The Prohibition on Face Covering Regulation (PFCR) was enacted not by Hong Kong Legislative Council (LegCo) but by the Chief Executive (technically, the “Chief Executive in Council” or CEIC, meaning the Chief Executive, Carrie Lam, acting in her official capacity) under a grant of authority conferred by the Emergency Regulations Ordinance (ERO), a law passed by Hong Kong’s LegCo in 1922 at the height of a general strike.

The ERO gives the CEIC (in those days, the Governor in Council) sweeping powers to enact regulations. And I mean sweeping. I think it’s best just to quote from the relevant parts of the ERO:

(1)      On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.

(2)      Without prejudice to the generality of the provisions of subsection (1), such regulations may provide for—

(a)      censorship, and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication;

(b)      arrest, detention, exclusion and deportation;

(c)      control of the harbours, ports and waters of Hong Kong, and the movements of vessels;

(d)      transportation by land, air or water, and the control of the transport of persons and things;

(e)      trading, exportation, importation, production and manufacture;

(f)       appropriation, control, forfeiture and disposition of property, and of the use thereof;

(g)      amending any enactment, suspending the operation of any enactment and applying any enactment with or without modification;

(h)      authorizing the entry and search of premises;

(i)       empowering such authorities or persons as may be specified in the regulations to make orders and rules and to make or issue notices, licences, permits, certificates or other documents for the purposes of the regulations;

(j)       charging, in respect of the grant or issue of any licence, permit, certificate or other document for the purposes of the regulations, such fees as may be prescribed by the regulations;

(k)      the taking of possession or control on behalf of the Chief Executive of any property or undertaking;

(l)       requiring persons to do work or render services;

(m)     payment of compensation and remuneration to persons affected by the regulations and the determination of such compensation; and

(n)      the apprehension, trial and punishment of persons offending against the regulations or against any law in force in Hong Kong,

and may contain such incidental and supplementary provisions as appear to the Chief Executive to be necessary or expedient for the purposes of the regulations.

(3)      Any regulations made under the provisions of this section shall continue in force until repealed by order of the Chief Executive in Council.

(4)      A regulation or any order or rule made in pursuance of such a regulation shall have effect notwithstanding anything inconsistent therewith contained in any enactment; and any provision of an enactment which may be inconsistent with any regulation or any such order or rule shall, whether that provision shall or shall not have been amended, suspended or modified in its operation under subsection (2), to the extent of such inconsistency have no effect so long as such regulation, order or rule shall remain in force.

In other words, the Chief Executive can do anything whenever in her judgment it’s a good idea. It’s impossible to find any limit in the ERO.

In practice, it has not been used a lot. As the Court noted,

Before the making of the PFCR, the ERO had not been invoked to make any new regulation since the 1970s, although some very old regulations continued to be in the statute books.  In 1995, all the remaining extant regulations made under the ERO, including the Emergency (Principal) Regulations, several regulations relating to deportation and detention, and regulations relating to requisition of land for use by British military forces, were revoked by the Governor in Council. (Para. 20)

So now comes the PFCR in 2019. Among the many grounds brought for challenging it was the argument that the ERO was and is an improper delegation of power from the legislature to the executive, and the Court agreed (“[W]e believe it is not compatible with the constitutional order laid down by the Basic Law.”). But some background discussion is necessary to understand why.

Prior to 1997, the ERO had been challenged on the same grounds. But Hong Kong courts had upheld it. Why? Because prior to 1997,

the Governor, “by and with the advice and consent of” the LegCo, was empowered to “make laws for the peace, order, and good government of the Colony” — a formula recognised as conferring a plenary legislative power, and where the colonial legislature was regarded as having “plenary powers of legislation, as large, and of the same nature, as those of [the Imperial] Parliament itself”. (Para. 51 (citations omitted))

As those who study the English constitution know, Parliament can do pretty much whatever it wants. This means that if it wants to delegate unlimited legislative power to someone else, it can.

But as the Court pointed out, the post-1997 LegCo is not a classic English-style parliament, unchecked by superior constitutional law. It is a creature of the Basic Law. Like the Chief Executive, it has all the power the Basic Law gives it, but no more:

Under the new constitutional order, the LegCo has the powers and functions vested in it by the Basic Law expressly or by implication.  The legislature can no longer claim supremacy but is subject to the Basic Law.  Art 2 lays down that legislative power is to be exercised “in accordance with” the provisions of the Basic Law.  Art 73(1) gives the LegCo the function to enact, amend or repeal laws “in accordance with” the provisions of the Basic Law. (Para. 51)

[T]he notion that the colonial legislature was sovereign and supreme within its province, . . . is no longer an apt description of the LegCo.  The legislature was conceived by the court in To Lam Sin as supreme in its own area in the way the Imperial Parliament was treated under English law as having power that was “absolute and without control”. But under the new constitutional order, within the Hong Kong SAR it is the Basic Law that is supreme, and even the legislature cannot act contrary to a requirement under the Basic Law. The legislature no longer has the plenary power enjoyed by the Imperial Parliament but that which is conferred expressly or by implication on it under the Basic Law. (Para. 89 (citations omitted))

The Court recognized that it is a necessary feature of any modern government that the executive have the capacity to enact subordinate legislation—that is, rules designed to implement regular legislation. The legislature can’t do everything. But it concluded that the breadth and depth of powers conferred by the ERO meant that rules enacted under it were far more than subordinate legislation.

Importantly, the Court did not invalidate the ERO tout court. It invalidated it insofar as it authorized the CEIC to enact rules on the grounds of public danger. The Hong Kong government had expressly declined to ground the PFCR in the emergency prong of the ERO, and the Court left that issue to another day:

[W]e do not wish it to be thought to be our opinion that the Basic Law categorically precludes any emergency powers from being given to the Executive.  Rigidity is not a virtue in constitutional interpretation, and one recalls the adage that a constitution that will not bend will break. We have not been addressed on the possibility that states of emergency necessitating urgent action can occur from which an implication can arise out of necessity that the LegCo can in wide terms authorise the Executive authorities to take necessary action. (Para. 96 (citations omitted))

Thus, we get the Court’s conclusion on the constitutionality issue:

It is the power and function of the LegCo as the designated legislature of the Hong Kong SAR to legislate.  Other bodies cannot consistently with the constitutional framework be given general legislative power but only the power to make subordinate legislation.  It may be a matter of degree whether a power granted is in truth general legislative authority rather than the acceptable power to make subordinate legislation.  But insofar as the public danger ground is concerned, the ERO is so wide in its scope, the conferment of powers so complete, its conditions for invocation so uncertain and subjective, the regulations made thereunder invested with such primacy, and the control by the LegCo so precarious, that we believe it is not compatible with the constitutional order laid down by the Basic Law having regard in particular to Arts 2, 8, 17(2), 18, 48, 56, 62(5), 66 and 73(1) of the Basic Law.

To sum up, the Court is upholding the constitutional order contemplated by the Basic Law, which gives LegCo less authority than the pre-1997 LegCo. Because the NPC gave LegCo less authority, it cannot freely delegate the way it used to. Because it cannot freely delegate, its wholesale delegation of legislative power to the executive in the ERO is invalid.

This is perhaps not what the Chinese government intended; it is used to the idea of executives having plenary authority to do anything. But if that’s what they want—to have a separate executive-led legislative process that completely overrides and makes meaningless the LegCo legislative process—they can always have the NPC revise the Basic Law to make this clear.

I will be following up shortly with Here’s a post on the Chinese government’s reaction.