To the disappointment of many members of the public, the Court of Appeal on Tuesday rejected the government’s request to suspend a previous High Court ruling that the Prohibition on Face Covering Regulation, commonly known as the “anti-mask law”, is unconstitutional. The appeal court’s decision means that the anti-mask law has to be suspended indefinitely unless the SAR government successfully challenges the High Court ruling later on.
The presiding judges of the appeal court categorically pointed out that by refusing the government’s application to suspend the High Court ruling, they were in no way determining the result of the government’s appeal against that ruling, one way or the other. But the suspension of the anti-mask law after their decision will no doubt send a wrong message to the protesters and could encourage the radicals to wear masks at protests, which will do a disservice to the government’s effort to quell violence and restore social order.
Members of the opposition camp, who filed judicial review applications against the anti-mask law in the High Court, might be snickering now. But they can’t count their chickens before they are hatched.
The High Court ruling, rather than the anti-mask law, is unconstitutional. The High Court judges concerned went beyond the court’s right and power by making a decision they do not have the authority to make.
The High Court in effect overstepped the authority of the Standing Committee of the National People’s Congress (NPCSC) when the court ruled on Nov 18 that some provisions of the Emergency Regulations Ordinance, which was the statutory basis for the HKSAR government to introduce the anti-mask law, were incompatible with the Basic Law.
The NPCSC had vetted the Emergency Regulations Ordinance as part of a wider review of colonial-era laws, and declared on Feb 23, 1997, that it is consistent with the Basic Law. So there was nothing illegal or wrong with the SAR government’s introducing an anti-mask law by invoking the Emergency Regulations Ordinance.
The High Court judges should have known this fact well. They should have found good reasons to reject the judicial review applications instead of making such a blunder over constitutionality, had they also read the Basic Law of the HKSAR meticulously. And they would have no need for a reminder from a spokesperson of the Legislative Affairs Commission of the NPCSC: Whether a law of the HKSAR is in conformity with the Basic Law can be judged and decided only by the NPCSC, and no other organ has the right to judge or decide.
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