Graver, Hans Petter

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The Battle for Jurisdiction over HongKongHans Petter Graver 2019-11-23T16:53:26The battle over Hong Kong between China and British institutions over Hong Kong isnot over. A legacy of the colonial rule is a legal order with independent courts in theEnglish common-law tradition. China has taken no steps to dismantle this legacy.The “one country, two systems” framework established by the Basic Law of HongKong recognises the independent judicial power of the Courts of Hong Kong, thecontinuation of common law and the law-making powers of the Hong Kong legislativeassembly. The independent judicial power vested in the courts includes that of finaladjudication. The Basic Law states in Article 19 (2) that “The courts of the HongKong Special Administrative Region shall have jurisdiction over all cases in theRegion, except that the restrictions on their jurisdiction imposed by the legal systemand principles previously in force in Hong Kong shall be maintained.”There is a latent inconsistency in the basic law in that Beijing’s National People’sCongress Standing Committee, “which holds the final power to interpret the BasicLaw, can curtail the Hong Kong courts’ jurisdiction or alter their composition byissuing an idiosyncratic “interpretation” of that law’s relevant provisions”. Beijing’sNational People’s Congress Standing Committee has now triggered its weapon todismantle the independence of the courts of Hong Kong. The background to thisis litigation arising over measures adopted by the Chief Executive of Hong Kong toquell the ongoing demonstrations in Hong Kong.As On November 18th, the High Court of Hong Kong ruled on the constitutionalityand legality of the Emergency Regulations Ordinance and the Prohibition on FaceCovering Regulation made thereunder. The Emergency Regulations Ordinancedates back to 1922 and the British rule, whereas the Prohibition on Face CoveringRegulation was made by the Chief Executive of Hong Kong in council on 4 October2019. The use of facial covering was not prohibited in Hong Kong before theProhibition on Face Covering Regulation.The High Court found that the Emergency Regulations Ordinance was incompatiblewith the Basic Law of Hong Kong in so far as it insofar as it empowers the ChiefExecutive to make regulations on any occasion of public danger. To what extent itempowers the Chief Executive to make regulations in occasion of emergency wasleft open by the court. The court also found that the Bill of Rights are not suspendedby the Emergency Regulations Ordinance, and that any measure adopted under itmust comply with the Bill of Rights.On the Prohibition on Face Covering Regulation the High Court concluded that thebreadth of the prohibition against the use of facial covering of any type and wornfor whatever reasons was disproportionate to the aims pursued. The court referred- 1 -to the absence of any mechanism for a case#by#case evaluation or assessmentof the risk of violence or crimes, the lack of robust evidence on the effectivenessof the measure, and lastly the importance that the law attaches to the freedom ofexpression, freedom of assembly, procession and demonstration, and the right toprivacy.The court based its reasoning on jurisprudence from the European Court of HumanRights, the Humans Rights Committee and on courts from common law jurisdictions.To the argument by the government referring to the grave public danger that theviolence used by some protesters cause to Hong Kong the Court replied that “weconsider that even in these challenging times, and particularly in these challengingtimes, the court must continue to adhere to and decide cases strictly in accordancewith established legal principles”.The Legislative Affairs Commission of the Standing Committee of the NationalPeople’s Congress reacted promptly. In a statement 19 November a spokespersonexpressed “deep concern over the ruling by the High Court. "Whether a law ofthe HKSAR is in conformity with the Basic Law of the HKSAR can only be judgedand decided by the NPC Standing Committee, and no other organ has the right tojudge or decide," the spokesperson said. The spokesperson went on to say that theEmergency Regulations Ordinance is consistent with the Basic Law, and that theruling “has seriously undermined the legitimate power of the Chief Executive and theGovernment of the HKSAR to govern in accordance with laws, and is inconsistentwith the Basic Law of the HKSAR and the relevant decisions of the NPC StandingCommittee”.This statement challenges the right of Hong Kong Courts to protect the citizens ofHong Kong against measures taken by the authorities of the special administrativeregion. The courts have already exercised considerable deference to the authorities.Now the battle is over whether they have an independent and final say over theseissues at all. The basic law confers the right of Beijing’s National People’s CongressStanding Committee to review legislation passed by Hong Kong, and to invalidateit on the grounds that it is in in compliance with the basic law. The committee nowseeks to extend this power and exercise it over the judiciary.This approach is eerily similar of the approach taken by the GermanReichskommissar against the Norwegian Supreme Court during the Germanoccupation of Norway in 1940. The conflict started when the Reichskommissardecided to appoint a civilian government from the local Nazi party, and to useGerman military power to turn Norway into a National Socialist state. The NorwegianSupreme Court stated that this was ultra vires the rights of an occupying authorityunder international law. After attempts of court packing, the result was the collectiveresignation of the Norwegian judges. The events are documented in my recent book(in German) on the courts and the rule of law in Norway under German occupation.The battle over jurisdiction that is developing over Hong Kong now is not onlyabout protecting civil rights in Hong Kong during the current demonstrationsand the measures taken by the authorities to control the situation. It seems thatBeijing is about to capture the right to determine the development of Hong Kong by- 2 -disempowering its courts. The case has been appealed. Much depends on what theresponse of the Court of Appeals will be in this difficult situation.- 3 -

The Battle for Jurisdiction over Hong Kong

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The Battle for Jurisdiction over Hong Kong

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