The Bar Association on Tuesday sternly repudiated comments by China’s top legislative affairs body that Hong Kong courts have no power to decide whether local laws are constitutional, saying this suggestion is legally incorrect, restricts the power of local courts, is contrary to the Basic Law, and undermines the high degree of autonomy granted to the territory under the mini-constitution.
But even as the Bar issued its statement, Beijing’s Liaison Office here doubled down on the earlier comments by the Legislative Affairs Commission of the National People’s Congress Standing Committee, agreeing that only the NPCSC has the power to interpret the Basic Law.
The comments centre on a High Court ruling that the government’s anti-mask regulation – imposed under a colonial-era emergency law – is unconstitutional and imposes invalid restrictions of fundamental freedoms.
The commission, and the Liaison Office agree that the NPCSC has the sole authority to decide on issues of constitutionality, saying this power is enshrined both in the Basic Law and China's constitution.
However, the Bar Association said not only do local courts have the authority to strike down unconstitutional laws, it is their duty to do so.
“Indeed, for a court not to decide any case which argues that a legislative provision is contrary to the Basic Law is to fail to uphold the Basic Law, which every judicial officer has sworn to do”, the Bar said.
It added that local courts have decided on such matters in the past, and there has never been any suggestion previously that they cannot do so.
The group also noted that Article 19 of the Basic Law declares that Hong Kong shall be vested with independent judicial power, including that of final adjudication.
And Article 85 says local courts shall exercise judicial power independently and free from interference.
“Any suggestion that the Courts in Hong Kong cannot conduct constitutional review circumscribes the exercise of judicial power by the Courts which they have always enjoyed and is contrary to the Basic Law”, the statement said.
“It also undermines the high degree of autonomy granted to the HKSAR under the Basic Law”, it added.
The Bar also criticised any comments that the NPCSC should interpret the Basic Law over the matter, or any talk that “could be perceived to be intended to put pressure on the judiciary would not be helpful in maintaining respect for the rule of law.”
However, Xinhua quoted the principal official of the Liaison Office as saying that “the administrative, legislative and judicial bodies of the HKSAR should respect relevant decisions of the NPCSC when performing their duties and exercising relevant powers in accordance with the law.”
The official added that “all walks of life in Hong Kong will firmly support the chief executive and the HKSAR government in governing in accordance with the law and taking active measures, firmly support the Hong Kong police in strictly enforcing the law, and firmly support the Hong Kong judicial bodies in punishing the violent criminals in accordance with the law.”
The office reiterated that the most pressing task for the territory is to bring violence and chaos to an end, and to restore order.
Beijing's comments restricts courts' power: Bar
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