Court ruling on constitutionality of emergency law 'worrying'

It is very worrying that Hong Kong's Court of First Instance has ruled the city's emergency law and the anti-mask law are both unconstitutional and invalid, Executive Councilor Regina Ip Lau Suk-yee said.

Ip, a former secretary for security, urged the Hong Kong Special Administration government to appeal the decision all the way to the Court of Final Appeal, which is the highest court in the SAR. Otherwise, the government will be left without any emergency powers to deal with emergencies.

The Prohibition of Face Covering Regulation, as it is officially known, was enacted by Chief Executive Carrie Lam Cheng Yuet-ngor in early October under the powers cited in the Emergency Regulations Ordinance. The regulation's purpose is to enable police to easier track and identify protesters and to quell the rampant violence in the city.

According to the law, violators face a prison term of one year and a fine of up to HK$25,000 ($3,200).

On the same day the law was enacted, the opposition camp applied for a judicial review of the emergency law and the mask ban. They were subsequently granted a hearing.

On Nov 18, the court ruled that the Emergency Regulations Ordinance was inconsistent with the Basic Law and was therefore invalid, and also said the mask ban was restricting human rights more than necessary. But the court granted a suspension of the ruling until Dec 10 to allow the government to appeal.

"It is highly worrying that the Court of First Instance ruled the Emergency Regulations Ordinance unconstitutional," Ip told China Daily in an exclusive interview.

"Every government needs an emergency law to deal with public danger and crises. If the verdict stands, the government will be left without any emergency powers to react quickly to emergencies and public danger.

"I am very disappointed by the court ruling and I wonder if the court knows the emergency law has been used not only on riots but also on other occasions, while the emergency powers do not necessarily infringe human rights," she said.

Many precedents

In 1967, the emergency law was used five times to deal with riots. In 1973-74, the law was used eight times to deal with the energy crisis, including the introduction of daylight saving time, or "summer time", during the energy crisis in 1974, she noted.

She also highlighted Article 160 of the Basic Law, which stipulates that pre-1997 Hong Kong laws inconsistent with the Basic Law would become invalid after 1997.

"Among other laws, the Emergency Regulations Ordinance was declared valid by the Standing Committee of the National People's Congress on Feb 23, 1997.

"The government must appeal, and I hope our judges will be able to correct this; I hope the government will win," she said.

The court ruling sparked serious criticism from a number of central government ministries and institutions. This includes the Legislative Affairs Commission under the NPC Standing Committee, and the Hong Kong and Macao Affairs Office of the State Council.

The Legislative Affairs Commission said that while the ruling seriously weakens the power of the chief executive and the Hong Kong SAR government, the Standing Committee of the NPC is the only authority that can decide whether a Hong Kong law is consistent with the Basic Law.

Ip added: "Their anger is understandable. The ruling has made the Hong Kong SAR government a lame duck which has no power to deal with emergencies; it has seriously weakened the powers of an executive-led government. This is not consistent with the constitutional design inherent in the Basic Law."