International Law in Brief
Hong Kong Ct. App. Rules on Constitutionality of Emergency Regulations
By: Emma Schoenberger | April 13, 2020 - 12:08pm
On April 9, 2020, the High Court of the Hong Kong Special Administrative Region Court of Appeal released its decision in Cases CACV 541, 542 & 583/2019 (jointly heard). A press summary from the Court states that it upheld the constitutionality of the Emergency Regulations Ordinance (ERO) as well as section 3(1)(b) of the Prohibition on Face Covering Regulation (PFCR) “relating to unauthorized assembly.” It ruled that sections 3(1)(c) and (d) and section 5 (which address public meeting, public procession, and police powers, respectively) were unconstitutional. The Court of First Instance (CFI) took issue with the ERO that the PFCR was created under, ruling that the ERO was incompatible with Hong Kong’s Basic Law. It also found that restrictions within sections 3 and 5 of the PFCR restricted citizens’ “fundamental rights…beyond what was reasonably necessary for the furtherance of” those sections’ goals. In response to the CFI’s decision, the respondents (the Secretary of Justice and Chief Executive in Council, in all three cases) appealed and the applicants cross-appealed.
The Court of Appeal (CA) found that the ERO was compatible with Hong Kong’s Basic Law, because it “does not confer on the Chief-Executive-in-Council (CEIC) general legislative power to make primary legislation.” The Legislative Council has primary legislative authority; however, it can delegate legislative powers to the CEIC (through an enabling ordinance) that allows the CEIC to pass subordinate legislation (i.e., emergency regulations). Section 3(1)(b) of the PFCR relates to the use of face masks at unauthorized assemblies. The Court reviewed what qualifies as an unauthorized assembly, who qualifies as a “person ‘at an unauthorized assembly,’” and the relationship of this section of the PFCR to the previously established Public Order Ordinance (POO); it found that section 3(1)(b) passed the proportionality test, reversing the CFI’s decision and that “the further restrictions on the lawful public assembly or public procession under sections 3(1)(c) and (d)” were unnecessary given authorities’ power to control lawful assemblies and disband unlawful assemblies. Regarding section 5, it found that the Police Force Ordinance and the POO already gave police the necessary amount of authority to require a person to remove a facial covering, and that the wider powers given in section 5 were not proportional to its aims. Additionally, the CA upheld the CFI’s rulings that the Hong Kong Bill of Rights Ordinance did not impliedly repeal the ERO and “that the ERO did not fall foul of the ‘prescribed by law’ requirement.” Lastly, respondents asked the CA to affirm the CFI’s rejection of the argument that general wording within the ERO made it impermissible for “the Government to adopt measures that infringe the fundamental rights of an individual” (This argument would make the PFCR illegal.). The CA refused, stating that the general wording was intended to allow restrictions of individual rights if necessary. Based on the arguments above, the CA accepted the respondents’ appeals relating to the constitutionality of the ERO and sections 3 and 5 of the PFCR. It rejected the appeals on all other grounds.