Date
21 January 2020
Since the handover, Hong Kong courts have been routinely hearing judicial review cases on whether local laws have violated the Basic Law, the author noted. Photo: HKEJ
Since the handover, Hong Kong courts have been routinely hearing judicial review cases on whether local laws have violated the Basic Law, the author noted. Photo: HKEJ

Why Beijing is so angry at HK court over anti-mask law

Justice Anderson Chow Ka-ming and Justice Godfrey Lam Wan-ho probably never expected that their court ruling against the government that the anti-mask law was unconstitutional would provoke such a fierce backlash from Beijing.

The Court of Appeal in November extended a seven-day interim suspension of that ruling until Tuesday.

Since the handover, our city’s courts have been routinely hearing judicial review cases on whether local laws have violated the Basic Law. And it wasn’t the first time our judges ruled against the administration on such issues.

So why is Beijing so infuriated this time around?

Perhaps one reason is that while the Emergency Regulations Ordinance was invoked by the former British colonial authorities to suppress the 1967 leftist riots, the decision never met any legal challenge from the judiciary at the time. (There were also no cases of judicial reviews at the time.)

So this time, the court would blatantly get in the way of the anti-mask law, which, from Beijing’s point of view, is just a very mild piece of legislation.

In the eyes of state leaders, what the court was doing was virtually denying the chief executive the same executive power which the former colonial governors used to have. In other words, the judiciary was undermining the power of governance of the chief executive and her administration, hence Beijing’s outrage over the decision.

Another possible reason why Beijing is so angry about the court ruling against the anti-mask law is that in the past, the High Court often refused to hear judicial review lawsuits filed by the pan-democrats on the grounds that under the principle of the separation of powers, the judiciary shouldn’t interfere in either the legislative or the executive branch.

As such, the fact that the court accepted the judicial review application against the mask ban filed by the pan-dems this time and ruled that the law was unconstitutional might have been seen by the central government as a radical and unreasonable departure from its usual practice.

The judges could have avoided the controversy by throwing the case out like they always did before. Yet much to the surprise of the central authorities, the court has agreed to hear the case in this instance.

From Beijing’s perspective, that the High Court ruled in favor of the pan-dems is tantamount to taking sides with the opposition bloc against the SAR administration, which explains why it is so outraged.

This article appeared in the Hong Kong Economic Journal on Nov 28

Translation by Alan Lee with additional reporting

[Chinese version 中文版]

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JC/CG

HKEJ contributor