Beijing Claims Hong Kong Court Ruling on Mask Ban Invalid, Raising Concerns About City’s Rule of Law

By Frank Fang
Frank Fang
Frank Fang
Frank Fang is a Taiwan-based journalist. He covers news in China and Taiwan. He holds a master's degree in materials science from Tsinghua University in Taiwan.
November 19, 2019 Updated: November 19, 2019

An agency within Beijing’s rubber-stamp legislature has openly criticized a Hong Kong court ruling to overturn the city’s mask ban, claiming that it was invalid. The announcement raised public concern that Beijing was overstepping the territory’s independent judiciary.

The legislative affairs commission of China’s National People’s Congress (NPC), along with the Hong Kong and Macau Affairs Office (HKMAO), the highest office in Beijing for managing the two former European colonies, issued statements on Nov. 19 criticizing the ruling.

The previous day, the Hong Kong High Court ruled that a controversial law banning citizens from wearing facial masks during public gatherings was unconstitutional and “incompatible with Basic Law,” referring to the territory’s constitution.

Hong Kong leader Carrie Lam invoked a colonial-era ordinance to implement the mask ban in early October, bypassing the city’s legislature.

After the court ruling, Hong Kong police announced that they would stop enforcing the regulation.

The Beijing commission stated on Nov. 19 that the ruling was invalid because the constitutionality of any Hong Kong law under the Basic Law can only be determined by the standing committee of the NPC, according to Chinese state-run media Xinhua. The standing committee is the agency that oversees the NPC.

Meanwhile, the HKMAO said the Hong Kong ruling was an “open challenge” to both the authority of the NPC standing committee and the power of Hong Kong’s leader, according to Xinhua.

During a regular press conference on Tuesday, Lam said that it was inappropriate for her to make comments on the court ruling since the court has not yet issued any orders and another hearing was scheduled for Wednesday on the mask ban.

When asked if the Beijing commission and HKMAO were pressuring the Hong Kong High Court with their statements, Lam said that she respected the two Beijing agencies’ “concern.”

The Hong Kong Bar Association issued a statement explaining that the NPC commission’s understanding was “legally incorrect.”

According to article 19 of the Basic Law, the Hong Kong region “shall be vested with independent judicial power, including that of final adjudication.” Furthermore, Hong Kong courts have precedent for striking down unconstitutional laws.

“Any suggestion that the Courts in Hong Kong cannot conduct constitutional review…undermines the high degree of autonomy granted to the HKSAR [Hong Kong special administrative region] under the Basic Law,” the association said.

Joshua Wong, activist and the iconic figure from the 2014 Umbrella Movement in Hong Kong, said the claim that only the NPC could rule on constitutionality would “violate our understanding of rule of law and judicial independence in HK,” in a Twitter post.

Pro-democracy lawmaker Alvin Yeung said Beijing’s statements were “extremely regrettable,” noting that based on constitutional law, Hong Kong courts absolutely had the right to handle such cases.

Chinese Soldiers 

Amid intense clashes between police and protests over the weekend, on Nov. 16, Chinese soldiers from the People’s Liberation Army (PLA) barracks near Polytechnic University took to the streets to clean up debris left by protesters.

A city spokesman said the Hong Kong government did not request assistance from the PLA, but the military initiated the operation as a “voluntary community activity.”

It marked the first time that Chinese soldiers appeared on the ground since mass protests began in June.

Pro-democracy lawmakers condemned the Chinese soldiers for leaving their barracks, saying that they had violated the local Garrison Law, which states that the PLA must not interfere with local affairs, unless the Hong Kong government has asked for assistance in “the maintenance of public order or disaster relief.”

At her Tuesday press conference, Lam urged people not to “overly interpret” the cleaning activity of the Chinese soldiers, saying that it was normal for them to carry out “charitable and voluntary activities.”

One example Lam provided was when Chinese soldiers also helped to clean up streets after the city was hit with a super typhoon last year.

She added that she was confident in the Hong Kong police’s ability to resolve the current crisis in Hong Kong without any outside assistance.

Annie Wu contributed to this report.

This article has been updated to include more details about the Hong Kong Bar Association’s statement.

Frank Fang
Frank Fang is a Taiwan-based journalist. He covers news in China and Taiwan. He holds a master's degree in materials science from Tsinghua University in Taiwan.