Woolf Wisdom

Richard Cullen

Adjunct Professor, School of Law, University of Western Australia
Visiting Professor, Faculty of Law, Hong Kong University

Hong Kong’s Basic Law is a law of the National People’s Congress (NPC) of the People’s Republic of China (PRC).  It was passed by the NPC in 1990 under the authority conferred on the NPC by Article 31 of the PRC Constitution of 1982.  The Basic Law provides the fundamental, regional legal foundations for governing the Hong Kong Special Administrative Region (HKSAR) within the PRC under the One Country Two Systems (OCTS) formula.[1]

As I write, there is some suggestion that the NPC Standing Committee (NPCSC) may issue an Interpretation under Article 158 of the Basic Law to stipulate, explicitly, who may determine the compatibility of laws and regulations with the Basic Law.[2]  It is unclear if this will happen or how sweeping any such stipulation may be, if delivered.  We know, based on the wording of Article 158 and the decision of Hong Kong’s Court of Final Appeal (CFA) in Lau’s case, in 1999, that the NPCSC enjoys a plenary power to issue interpretations of all components of the Basic Law on its own initiative at any time.  All such interpretations are binding in the HKSAR.[3]

These Beijing moves arise from the overturning, by a Hong Kong court, of a regulation banning the wearing of masks at public demonstrations in the HKSAR.[4]  This regulation was recently applied in the midst of the most intense and violent political turmoil seen in Hong Kong in half a century.[5]

Two critical, international evaluations of these possible plans implicitly confirm the wide NPCSC power to interpret the Basic Law .  Professor Cohen, a pre-eminent US, Chinese law scholar recently wrote that:

[T]he spokesperson of the National People’s Congress Standing Committee (NPCSC) Legislative Affairs Commission, Mr. Zang, [LAC Statement] responded to the HK court’s ruling by announcing that only the NPCSC can deal with Basic Law constitutional questions.  The Central Hong Kong and Macao office’s Liaison Office in HK made a statement too, also suggesting a similar argument.

This view seems plainly contrary to the system established under Article 158 of the Basic Law, which contemplates the possible consideration of constitutional questions by the HK courts prior to final determination by the NPCSC, as has occurred previously.[6]

Professor Cohen makes a strong argument but he takes care to avoid saying that the Basic Law, itself, directly supports his argument.  Instead, he refers to the “system established under [not “by”] Article 158 of the Basic Law, which contemplates the possible consideration – etc.”  This raises several questions the most important of which is, who or what has established this system?  The answer is that this system was, above all the creation of Hong Kong’s CFA in the Right of Abode litigation in 1999.[7]  That is, this system, which certainly exists and has been continuously applied by the CFA and other courts in the HKSAR, has been conceived of by the CFA drawing on the CFA’s analysis of the Basic Law.

At about the same time Malcolm Rifkind, (UK Foreign Secretary 1995-1997) argued, in the South China Morning Post, that:

The statement [the LAC Statement] is a naked power grab by the central government from the Hong Kong judiciary, and it is clearly in breach of the case law and the terms of the Sino-British Joint Declaration.[8]

Once again, Malcolm Rifkind makes no mention of this power (enjoyed by Hong Kong courts) being conferred by the Basic Law itself.  Rather, the primary source of this power is the case law – as just argued.  The reference to the Joint Declaration (JD) is meant to strengthen the reasoning but, firstly, the JD lends minimal weight to the argument, at best, and secondly, and more importantly, the Basic Law is the decisive, regional constitutional instrument which applies in the HKSAR and what it says conspicuously governs what is constitutional, not the earlier JD, which is an important but precursor, auxiliary international treaty.

Henry Litton, a former Judge of the Hong Kong’s CFA, also recently confirmed that the NPCSC has the final say on constitutional matters arising under the Basic Law.[9]  I return to this discussion of the powers of the NPCSC under Article 158 in the Conclusion.

Proportionality

What I want to explore in this contribution is: (1) how the courts in the HKSAR have come to find themselves facing this potentially serious challenge to their authority to undertake Basic Law grounded, constitutional review; and (2) how this understanding may help refine the future application of the Basic Law.

As explained above, this authority is well argued in the case law but it is principally self-claimed based on a cogent judicial analysis of what is implied by the Basic Law.  Article 158 is, however, explicit about the interpretation power of the NPCSC.  The first sentence says that:

The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.

My argument, in essence, is that the courts in Hong Kong have, over time and relying on an increasingly fundamentalist approach to prioritizing individual rights, largely laid the foundations for this confrontation themselves.  Moreover, a different, more flexible approach which laid stress on the importance of the general public interest in evaluating the protection of individual rights was suggested for Hong Kong, at the highest judicial level, around 25 years ago.  This approach, had it been then adopted, would likely have prevented the crisis now faced, from arising.  It was, however, strenuously argued against and these arguments carried the day at that time.

Laws banning the wearing of masks in public are widespread across the world, not least in democratic countries.  The State of New York in the US introduced its first anti-mask law in 1845.  Many jurisdictions in the EU have such laws, including France, Germany, Italy and Sweden.  Canada introduced such a law in 2013 which makes the wearing of a mask during a riot or unlawful assembly punishable by up to 10 years in prison.[10]

Hong Kong finally introduced an anti-mask law in October 2019, after more than three months of hugely disruptive political rioting.[11]  The HKSAR Government applied the Prohibition on Face Covering Regulation (the Mask Ban Law) using powers conferred by the Emergency Regulations Ordinance (ERO), a statute enacted during the British Hong Kong (BHK) era designed to address mass, violent  social disruption.[12]

The Mask Ban Law was immediately challenged, on a number of grounds.  The High Court in Hong Kong, in November, 2019, unusually sitting with two judges, struck the law down as being contrary to Hong Kong’s Basic Law.[13]

At the time the HKSAR Mask Ban Law was struck down, Hong Kong was caught in the midst of the most extreme political danger it has faced in over 50 years.  This same crisis also posed a serious threat to the national security of the PRC itself.  If Mask Ban Laws are so widely used across the democratic world, how can it be that the High Court in Hong Kong saw fit to declare this new law invalid at the very height of such an existential crisis?  The answer to this question can, above all, be found within the way that the jurisprudence related to the protection of individual rights has developed in Hong Kong.

There were two primary areas where the High Court grounded its contentious decision which can briefly be summarized as the ultra vires ground and the proportionality ground.

It is the latter, proportionality ground which I want to address in this article.  But it is sensible to make some initial observations on the first ground.  Here a key argument, which the court endorsed, was that the delegation of powers by the Legislature under the ERO to the Chief Executive was too broad and, thus, those powers could not legitimately be exercised by the Executive.  That is, in certain key ways, the particular delegation was ultra vires, or beyond the power of the Legislature.

On the face of it, this is a rather remarkable argument given that, at the time the ERO was passed during the BHK era, it was not possible to make such an argument: the ERO was simply a valid law creating valid delegations of power to the Governor of BHK (that is, to the Executive Government of BHK).[14]

Moreover, it is clear from a decision of the National People’s Congress Standing Committee (NPCSC) in February, 1997, that the intention of the NPCSC was that the ERO be retained, after July 1, 1997, as good law within the new HKSAR and that the ERO was compatible with the Basic Law of the HKSAR.[15]  This beyond-power finding plainly warrants further detailed analysis.  Let me now, however, return to the primary focus of this article.

My concern here is to review of the operation of the current, crucial, proportionality test used in Hong Kong to assess whether particular local laws and regulations may or may not be compatible with the rights protection provisions mainly contained in Chapter III of the Basic Law.  In fact, the High Court could have struck down the Mask Ban Law just by relying on this proportionality test: the court did find that the Mask Ban Law disproportionately restricted fundamental human rights.[16]

As signaled in the Introduction, this High Court decision has proved to be deeply controversial.  The Legislative Affairs Commission (LAC) of the NPCSC offered a strong critique of the High Court decision arguing that only the NPCSC can resolve the question of the constitutional compatibility between a local law or regulation in the HKSAR and the Basic Law.  As a matter of the ultimate power to decide on constitutionality, Article 158 of the Basic Law makes it clear that this is so (see above) but the LAC may have been going beyond this.

The proportionality analysis underpinning the protection of Basic Law rights, including liberty of the person, freedom of expression and privacy rights stresses that such rights are enjoyed by everyone (including those who may be involved in rioting).  But how, in this case, does Hong Kong’s essential public interest in restoring order and stability and rebuilding the rule of law (from the lawless disarray we have faced in 2019) figure in this calculation?  In fact, this proportionality mode of argument fundamentally reduces the weight given to this crucial public interest question.  The proportionality test typically places a heavy onus on the Government to justify each single claimed infringement of a particular right, significantly separated from any special, public interest context which may apply.

This insistent human rights viewpoint, which is widely treated as primary doctrine in the HKSAR (and well beyond) posits, according to one leading Basic Law text, that fundamental human rights (rather than the overall public interest), must enjoy paramount recognition when rights cases are argued in court[17].  This is the approach adopted by the High Court in its recent decision (related to proportionality) on the Mask Ban Law.

It was not always this way.  In 1993, Lord Woolf, in a key judgment in the Privy Council, at that time still Hong Kong’s highest court of appeal, saw the danger of the “tail wagging the dog”.  The case of Attorney-General v Lee, Kwong Kut involved the application of the Bill of Rights Ordinance (BORO) introduced in 1991 in BHK.[18]  The essence of what Lord Woolf said was that, while the Hong Kong judiciary should be zealous in upholding an individual’s rights, it was also necessary that disputes as to the effect of the BORO not be allowed to get out of hand.  He added that, in order to maintain the balance between the individual and society as a whole, rigid and inflexible standards should not be imposed on the Legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when dealing with serious crime.  He also stressed the importance of local context and cautioned against using the complex proportionality test borrowed from Canada – which so stoutly prioritizes individual rights – in most cases.

Lord Woolf’s verdict was strongly criticized for excessively favouring the need for government to maintain order over the claims of individuals to have their rights protected.[19]  Events since and especially in 2019 have confirmed, however, that Lord Woolf was primarily right and his critics were too sudden with their adverse judgment.

Had the balancing test which he advocated been used in the case involving the Mask Ban Law, this would have made the public interest in re-securing the right to freedom from fear for millions of Hong Kong residents a crucial consideration.  It follows from this, that anyone arguing to overthrow the Mask Ban Law on constitutional grounds would have had to show that the public interest was not being weakened in any measurable way, within the context of months of unfolding lawlessness, by any such over-ruling of that law.  This could mean showing, evidentially, that such laws cannot work, over time, to improve stability and order.  The widespread use of anti-mask laws today across the developed world (including in Canada, France and Germany) would increase the difficulty of making such an argument.

Conclusion

It is clear that shocking, lawless disorder has damaged daily life across Hong Kong.  This turmoil has also badly corroded the operation of the economy.  Without basic social stability, Hong Kong’s prosperity it placed under constant threat.

In these circumstances, it is fair to ask, what role might the courts now play in the vital project to rebuild stability?  Frankly, relying on fundamentalist rights jurisprudence (as the High Court has done) works against this aim.  This mode of interpretation, to borrow from its underlying rationale, fails a basic proportionality test: it is fixated on protecting individual rights, above all, in a way which inappropriately demotes full consideration of the wider public interest within the prevailing judicial reckoning.  Moreover, this reliance has provoked an understandably strong negative response in Beijing.  So what alternative approach could now be adopted?

The same leading text relied on above explains that the Basic Law is “a living instrument that evolves and responds to social changes and that a literal, technical, narrow or rigid approach to its construction is to be avoided.”[20]  This analysis opens the door for the CFA to adopt a purposive review of the operation of rights-based law in Hong Kong (including the Mask Ban Law) in the light of current circumstances.  We have witnessed an unmistakable and unprecedented level of grim social change this year in Hong Kong, which demands a range of responses.  The CFA could, today, play a key role in rebuilding the core of Hong Kong’s damaged rule of law stability by revisiting and embracing the essence of Lord Woolf’s prescient, 1993 judgment.  The balancing test stressed in that judgment could be specified by the CFA as the first order test to apply in the case of the Mask Ban Law – and in most future individual rights cases.

As it happens, there is an alternative way to recalibrate the basic, individual-societal, rights-equation in the HKSAR.  As noted above, the CFA told us in Lau’s case, in 1999, that the NPCSC enjoys a plenary power to issue binding interpretations of the Basic Law on its own initiative at any time.  One other way in which the balancing test could be made the primary starting point for human rights cases in Hong Kong would be for the NPCSC to provide an interpretation under Article 158 of the Basic Law, (bearing Lord Woolf’s judgment in mind) principally stating that rights interpretations under that law should, in the light of the immense social disruption in 2019, hence-forward, normally adopt a balancing test, making the public interest a core matter for consideration.

The NPCSC may be tempted to go further than this, of course.  And both the Basic Law and Lau’s case tell us (putting aside the political impact question) that a more drastic response would be constitutionally sound.  The possible NPCSC approach outlined here, however, tells the courts in Hong Kong that the broad public interest must be taken into account as a key factor in rights calculations.  It also provides a pathway out of the jurisprudential cul-de-sac which the courts in the HKSAR have created for themselves by placing such heavy reliance on the unyielding proportionality test.[21]  Finally and importantly, it leaves scope for the courts to continue with rights-based constitutional review, subject to compliance with a firm framework based on strong jurisprudential, public interest reasoning.

This alternative approach can been seen, drawing on Canadian rights jurisprudence, inter alia, as a “dialogue”[22] between the SCNPC and the CFA, something which is compatible with the OCTS framework.  Any serious dialogue is typically an ongoing process, so taking one step does not close out further exchanges.  Additional responses remain an option if these are seen, ultimately and after measured consideration, to be required.

This blog follows the publication of B Tai, S Veitch, Fu Hualing and R Cullen’s, ‘Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong’ (2020) 29(1) Social & Legal Studies 107-145 a collection of papers in Social & Legal Studies‘ ‘Dialogue and Debate’ series.  The paper is free-to-read for a limited time at the link below (correct as at 22 January 2020).

https://doi.org/10.1177%2F0964663919869725

If you have an idea for a Dialogue and Debate collection please contact the D&D editor Prof Emilios Christodoulidis.

About the author

Richard Cullen is Visiting Professor in the Faculty of Law at Hong Kong University and an Adjunct Professor in the School of Law at the University of Western Australia.  He has spent around 25 years based in Hong Kong.  He was a Professor at Monash University in Melbourne, Australia until 2006. His latest book, Hong Kong Constitutionalism: The British Legacy and the Chinese Future (Routledge, Abingdon, 2020), will be published in March, 2020.

Notes:

[1]  See: Ghai, Yash, Hong Kong’s New Constitutional Order (Second Edition) (Hong Kong University Press, Hong Kong, 1999); and Loh, Christine and Cullen, Richard, “Hong Kong in China: Rethinking the Hong Kong-Mainland Relationship – Part 1”, IPP Review, available at: https://ippreview.com/index.php/Blog/single/id/829.html.

[2]  See: “Liaison office of China’s central gov’t in HKSAR says NPC Standing Committee’s decisions should be respected”, Xinhaunet, November 19, 2019, available at: http://www.xinhuanet.com/english/2019-11/19/c_138567553.htm; and . “China says its courts trump Hong Kong’s on face of mask ruling” Al Jazeera, November 18, 2019, available at: https://www.aljazeera.com/news/2019/11/china-rule-hk-constitution-mask-ruling-191119004914628.html.

[3]  Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300.

[4]  Kwok Wing Hang & Others vs Chief Executive in Council & Another [2019] HKCFI 2820 (“High Court Judgment – Mask Ban Law”) available at: https://www.livelaw.in/pdf_upload/pdf_upload-366818.pdf.

[5] “Hong Kong’s Political Crisis Deepens After the Worst Day of Violence in Decades”, Time, October 2, 2019, available at: https://time.com/5690681/hong-kong-crisis-unrest-protests/.

[6]  Cohen, Jerome A., “My take on China’s reaction to Hong Kong High Court’s ruling declaring the mask ban unconstitutional under the PRC’s Basic Law”, Jerry’s Blog, November 20, 2019, available at: http://www.jeromecohen.net/jerrys-blog/my-take-on-chinas-reaction-to-hong-kong-high-courts-ruling.

[7]  See: Ng Kar Ling & Others v Director of Immigration [1999] HKLRD, 315; and Chan Kam Nga & Others v Director of Immigration [1999] 1 HKLRD, 304.

[8]  Rifkind, Malcolm, “Beijing must respect High Court mask-law ruling in the interests of both Hong Kong and China”, South China Morning Post, November 21, 2019, available at: https://www.scmp.com/comment/opinion/article/3038628/beijing-must-respect-high-court-mask-law-ruling-interests-both-hong.

[9]  Lum, Alvin, “Hong Kong courts have power to decide on constitutional matters, but Chinese national legislature has the final say, former judge says, South China Morning Post, November 22, 2019.

[10]  “Anti-mask Law”, Wikipedia, available at: https://en.wikipedia.org/wiki/Anti-mask_law.

[11]  Prohibition on Face Covering Regulation (October 5, 2019 – made under Section 2 of ERO) (“Mask Ban Law”), available at: https://www.elegislation.gov.hk/hk/cap241K!en/shortTitle.pdf?FILENAME=%40Whole.pdf&DOC_TYPE=Y&PUBLISHED=true.

[12]  Emergency Regulations Ordinance, Cap 241 (1922 – as amended), available at: https://www.elegislation.gov.hk/hk/cap241!en.assist.pdf?FILENAME=Assisted%20Monolingual%20PDF%20(English).pdf&DOC_TYPE=K&PUBLISHED=true.

[13]  Kwok Wing Hang & Others vs Chief Executive in Council & Another [2019] HKCFI 2820 (“High Court Judgment – Mask Ban Law”) available at: https://www.livelaw.in/pdf_upload/pdf_upload-366818.pdf.

[14]  Retired CFA Judge, Henry Litton expressed surprise at the High Court ruling.  See, Lum, Alvin, “Hong Kong courts have power to decide on constitutional matters, but Chinese national legislature has the final say, former judge says, South China Morning Post, November 22, 2019.

[15]  Instrument A206 Decision of the Standing Committee of the National People’s Congress Concerning the Handling of the Laws Previously in Force in Hong Kong in Accordance with Art5icle 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the 24th Meeting of Standing Committee of the National People’s Congress on February 23, 1997), available at: https://www.elegislation.gov.hk/hk/capA206.

[16]  For a discussion of the prevailing view on the use of the proportionality test, see: Chan, Johannes and Lim C. L. (Eds) Law of the Hong Kong Constitution (Second Edition) (Sweet & Maxwell, Hong Kong, 2011) Chapter 17, Section 6. A recent, extended  review within a US constitutional context of proportionality reasoning can be found in Jackson, Vicki C., “Constitutional Reasoning in an Age of Proportionality” (2015) 124 Yale Law Journal, 3094.

[17]  Chan, Johannes and Lim C. L. (Eds) Law of the Hong Kong Constitution (Second Edition) (Sweet & Maxwell, Hong Kong, 2011) Chapter 16, Para. 17.041.

[18]  Attorney General of Hong Kong v Lee Kwong Kut [1993] AC 951.

[19]  See, Ghai, Yash, “Sentinels of Liberty or Sheep in Woolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights” (1997) 60 Modern Law Review, 459, for a key, robustly critical review.

[20]  Chan, Johannes and Lim C. L. (Eds) Law of the Hong Kong Constitution (Second Edition) (Sweet & Maxwell, Hong Kong, 2011) Chapter 17, Para. 17.042.

[21]  This predicament has some resonance with the dilemma the United States Supreme Court (USSC) found itself in during the Lochner Era.  By the time of the Depression, in the 1930s, the USSC had painted itself into a corner by relying crucially on the doctrine of “substantive due process” to strike down a number of laws designed to protect employee well-being.  Executive and popular  pressure eventually persuaded the USSC to walk back from its hardline, employer-favouring, basic stance.  See, “Lochner Era” Legal Information Institute, Cornell University, available at: https://www.law.cornell.edu/wex/lochner_era.

[22]  See: Hogg, Peter W. and Bushell, Allison A., “The Charter Dialogue Between Courts and Legislatures” (1997) 35 Osgoode Hall Law Journal, 75; and Hogg, Peter W., Bushell Thornton, Allison A., Wright, Wade K., “Charter Dialogue Revisited – Or ‘Much Ado About Metaphors’” (2007) 45 Osgoode Hall Law Journal, 1. See also, Bickel, Alexander, The Least Dangerous Branch (Yale University Press, New Haven, 1986).

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