Hong Kong mask regulation case: the Legislative Affairs Commission strikes back

The Legislative Affairs Commission (LAC) of the National People’s Congress Standing Committee (NPCSC) has issued a statement (Xinhua report in English here) on the controversial ruling by a Hong Kong court (the Mask Regulation Case) partially invalidating a Hong Kong statute under the Basic Law (discussed in a previous blog post). Over at the NPC Observer blog, Changhao Wei has an excellent discussion of this statement, along with a brief synopsis of the case itself. I mostly agree, but I actually think that the Chinese government’s case has a bit more merit than he thinks it does.

Here’s the statement in its essentials, with some artificial paragraphing for ease of discussion:

  1. 香港特别行政区法律是否符合香港基本法,只能由全国人大常委会作出判断和决定,任何其他机关都无权作出判断和决定。Whether a law of the Hong Kong Special Administrative Region conforms with the Hong Kong Basic Law can be judged and decided only by the National People’s Congress Standing Committee. No other organ has the right/authority to make a judgment and decision.
  2. 根据香港基本法第8条的规定,包括《紧急情况规例条例》在内的香港原有法律,除同香港基本法相抵触或经香港特别行政区立法机关作出修改者外,予以保留。In accordance with the provisions of Article 8 of the Hong Kong Basic Law, the original [pre-1997] laws of Hong Kong, including the Emergency Regulations Ordinance, remain in force unless they conflict with the Hong Kong Basic Law or are amended by the Legislative Council of the Hong Kong Special Administrative Region.
  3. 1997年2月23日,第八届全国人大常委会第24次会议作出的《全国人民代表大会常务委员会关于根据〈中华人民共和国香港特别行政区基本法〉第一百六十条处理香港原有法律的决定》,已经将《紧急情况规例条例》采用为香港特别行政区法律。因此,该条例是符合香港基本法的。On February 23, 1997, the 24th Session of the 8th National People’s Congress Standing Committee passed the “Decision of the National People’s Congress Standing Committee on the Handling of Hong Kong’s Original Laws in Accordance with Article 160 of the People’s Republic of China Basic Law on the Hong Kong Special Administrative Region,” and adopted the “Emergency Regulations Ordinance” as the law of the Hong Kong Special Administrative Region.” Therefore, the said ordinance complies with the Hong Kong Basic Law.

OK, let’s look at these sentences one by one.

The first sentence is, to put it baldly, nonsense. As Wei points out, “Such a view is diametrically opposite to the long-standing role that Hong Kong courts have assumed since as early as 1999” in the Ng Ka Ling case. The Hong Kong government did not challenge the courts’ power to judge conformity in the Ng Ka Ling case, and the PRC government did not challenge it then or after. It is a bit late in the day to come along now and say that the power never existed.

But the argument in the second and third sentences is stronger. First of all, let’s take a look at the relevant part of Article 160 of the Basic Law in order to understand what’s going on in the third sentence:

Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People’s Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.

In February 1997, prior to the handover, the NPCSC made the contemplated declaration by adopting the decision referred to in the third sentence. That decision specifically identified certain laws and parts of laws that were no longer to be in force. It did not affirmatively identify laws that were to continue in force.

In the Mask Regulation Case, the government argued (Para. 94) that Article 160

makes provision for the NPCSC to declare any laws previously in force in Hong Kong to be in contravention of the Basic Law and therefore to be excluded from the laws to be adopted as laws of the Hong Kong SAR.  It is submitted that the constitutionality‑check was conducted prior to 1997 and the NPCSC did not consider the ERO to be in contravention of the Basic Law.

And as we can see, this is the argument of the LAC as well (in the third sentence). But the court and Wei’s blog post dismiss this too easily, I think. Wei writes:

While it is uncontroverted that the NPCSC had the authority to adopt that decision under Article 160 of the Basic Law, the Commission’s conclusion does not necessarily follow. It is not obvious that a law’s absence from the list of laws declared invalid was conclusive evidence that the NPCSC had affirmatively declared it valid under the Basic Law.

Hmm. I dunno. Article 160 seems pretty clear: if it’s not declared invalid, it’s valid: “[T]he laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People’s Congress declares to be in contravention of this Law.” The NPCSC didn’t declare the ERO to be in contravention of the Basic Law. There was no need for the NPCSC to affirmatively declare the ERO valid; that was the default position. I don’t see how one escapes the conclusion that it is therefore valid, at least until later found invalid.

That brings us to the second part of the response to the LAC’s (and the Hong Kong government’s) position: that Article 160 specifically contemplates that laws that made it past 1997 could later be found invalid. The court expressed it this way:

The respondents [the Hong Kong government] only rely on this as a factor in favour of validity, and do not submit that the absence of rejection by the NPCSC has the effect of precluding any future finding that the ERO contravenes the Basic Law. Indeed, Art 160 envisages that laws may subsequently be discovered to be in contravention of the Basic Law.  In the absence of any further information about that screening process and the reasoning and materials involved, however, we are respectfully unable to place overriding weight on this factor.

OK, Article 160 does indeed contemplate that a law that wasn’t declared invalid before might subsequently be discovered to be invalid because of a conflict with the Basic Law. I have no argument with the premise. But the conclusion—that a Hong Kong court can discover the invalidity and invalidate the law—doesn’t necessarily follow. Look at what Article 160 says is supposed to happen when that subsequent invalidity is discovered: “If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.” The courts have no power to amend; pretty clearly it’s the legislature that Article 160 has in mind there. The only thing left is to suppose the judicial invalidation is included in “cease to have force in accordance with the procedure as prescribed by this Law.” Can the Basic Law really be read as prescribing judicial invalidation as a procedure for causing laws to cease to have force? Where? To me that seems a pretty heavy lift.

So where does that leave us?

(A) If the first sentence of the LAC’s statement is wrong but the third sentence is correct, then Hong Kong courts can review for constitutionality under the Basic Law any post-handover enactments, but not pre-handover enactments not already invalidated by the NPCSC. The justification would be that the NPCSC already knew about such enactments and decided they were compliant with the Basic Law, and the NPCSC has the last word. Obviously it’s possible and even likely that subsequent events will show that there was some arguable conflict that nobody had thought about, but in that case it’s for the NPCSC to pass judgment.

(B) If the whole statement is wrong, then the Hong Kong courts can review for constitutionality under the Basic Law any enactments, regardless of whether they pre-date or post-date the 1997 handover.

The difficulty with option (A) is that in at least some cases it somewhat artificially passes to the NPCSC matters that will be indistinguishable in nature from matters that are and should be settled by the Hong Kong courts. The anti-mask regulation is a case in point: it’s a domestic matter not involving the relationship between the center and the SAR (unless you want to make the dreary argument that basically everything that goes on in Hong Kong involves the relationship between the center and the SAR). But the difficulty with option (B) is that, for purposes of constitutional review, it makes the 1997 NPCSC Decision totally meaningless.

This is, of course, just a legal analysis, and an amateur one at that, since I’m not a Hong Kong law specialist and there may be cases and other relevant material that I don’t know about and that would affect my conclusion. I don’t normally agree with the legal analyses of the NPCSC (and didn’t in the case of Ng Ka Ling), and don’t offer this analysis as advocacy of what ought to be. But while I think the first sentence of the LAC’s statement is silly, I am compelled to the conclusion that the rest of the statement makes a non-frivolous point.

Thoughts, anyone?

3 thoughts on “Hong Kong mask regulation case: the Legislative Affairs Commission strikes back”

  1. Hi Professor Clarke,

    Thank you for this post.

    Although it appears we disagree over whether the NPCSC’s adoption of the ERO as a law of HK in its 1997 Decision necessarily equals a declaration that the ERO conforms with the Basic Law, we both agree that “Article 160 does indeed contemplate that a law that wasn’t declared invalid before might subsequently be discovered to be invalid because of a conflict with the Basic Law.”

    You then wondered “Can the Basic Law really be read as prescribing judicial invalidation as a procedure for causing laws to cease to have force?” The HK Court of Final Appeal has in fact addressed (a version of) this question in HKSAR v. Hung Chan Wa (2006). There it held that “art.160 does not apply to judicial procedure.” (See ¶¶ 7–15: https://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfa/2006/85.html) I read this case as saying that courts are not *constrained* by art. 160 (which generally requires that any legislative amendment/invalidation be prospective) and thus judicial invalidation of local enactments need not be prospective only. So the Court clearly assumed—and may have held elsewhere—that art. 160 doesn’t bar courts from invalidating pre-handover enactments. Hung Chan Wa itself involved a pre-handover law that the Court avoided striking down by giving it a “remedial interpretation.”

    I am of course not a Hong Kong expert either; I came across this case after a simple search in the HKLII database.

    1. As I think you note, the case you cited is not really on point. It addresses the issue of whether it’s appropriate for a court to rule that a particular interpretation of law shall apply only prospectively. It reads Art. 160 as forbidding that (I think they’re wrong in reading it that way – it’s not obvious to me why “cease to have force” can’t be read as meaning “be deemed never to have existed”), and so has to talk about whether Art. 160 applies to judicial interpretations. It doesn’t address the issue of whether Art. 160 presents the ONLY method of getting rid of laws that are later found to be inconsistent with the Basic Law. As you also note, it seems to take for granted that it is not. But it doesn’t address arguments pro and con that position.

  2. For what it is worth, I think we need to distinguish whether Article 160 at least allows for “adopt” to be equivalent to “validate” and whether it is objectively plausible that the option was taken in the 1997.2.23 Decision.
    On the former question, I’ll say overall it is a weaker but not hopeless line. Literally interpreting only “adopt” does *imply*, but does not state the presumption that the adoption is justified. But the picture inverses taking in the entire paragraph. If the ordinances can be found to be contravening *after* being found valid, someone has to cut them out. If the NPC meant LegCo or the Courts, that would be to allow (as they would see it) an inferior body to override the Decision of the NPCSC.
    If they meant the NPCSC, then the SC will have to break res judicata principles to reverse itself. Neither can be seen to be desirable legal constructions.
    Nevertheless, it may be open to the SC, if it absolutely sure it will not regret any of this, to validate simultaneously with adoption. So we turn to the latter question.

    In that Decision, the acts that were unacceptable were written out as “…抵觸《基本法》(justification/finding),不採用(operative part)”.
    The others were written out as “除同《基本法》抵觸者外(qualifier),採用(operative part)” – the justification/finding, and thus any statement of conformity, was avoided. Even though it’ll be easy to take the form “”…符合《基本法》(justification/finding),採用(operative part)”
    Further, if everything is already deemed to be in comformity, Paragraph 6 would be un-necessary, and if it is to be retained it is a fine place to (if the position is at all justifiable) stake the claim. Thus to the extent that option was legally open to them when making the Decision, there is no objective manifestation of an intent to take it.

    If we zoom out to the whole Basic Law, we also run into the problem the NPCSC has not received any powers (from the NPC) to do anything. Article 160 tells us if we find another contravention to seek the solution in the rest of the Basic Law. The courts have (apparently) used BL2, 8, 19, 158 to stake their claim. It is also possible for LegCo to stake a claim using their legislative powers in BL2, 17 and 73 (they don’t really need 160 either b/c they can change ordinances on plenary grounds). The CE also can stake a claim using BL48(2), presumably acting via LegCo. As for the Standing Committee, 17 doesn’t help it because it concerns new legislation, 18 doesn’t help it because it concerns its right to plug in National Law in certain situations, and 20 doesn’t help it either and they are not seen again until BL158.

    Zooming out one more step to include the Constitution, we see the closest candidate is 67(8), but among other things we are not a province, autonomous region or directly subordinate city.
    So maybe they can say the power is not with our courts, but that’s far from placing the power in their own hands.

    My sense is that Beijing got very quiet after Zang opened his big mouth, and the usual Beijing supporters to the extent they said anything seem reluctant to endorse it in full, trying to “clarify down”.
    I hope that this means they realize, if quietly, that Zang had over-reached, his position disproportionate to the desired ends (they just want Mask Regulation endorsed…) and given his position as LAC rather than a pocket academic will commit Beijing to a path it does not want to take.

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