One can witness a scene of mockery in the evening after two High Court judges, Anderson Chow Ka-ming and Godfrey Lam Wan-ho, ruled that the anti-mask law is unconstitutional and incompatible with the Basic Law. Is it any wonder that tens of thousands of people, including the "black shirts" and their supporters, all wearing masks, then hit the streets in Yau Ma Tei and Hung Hom, blocked the main roads, and attempted to march to Hong Kong Polytechnic University to "rescue" "students" barricaded inside? Clearly, the large turnout was encouraged by the court ruling, which made police work that much harder.
Few people would have the time and inclination to read the full ruling. Regardless, for most people, the only yardstick of any ruling is common sense, and if the judgment fails the common-sense test, it will be regarded as an ass!
Indeed, "common sense" is increasingly being regarded as a ruling guideline in the United States and in common-law jurisdictions. Judges are increasingly less inclined to interpret the law based on the narrow legal interpretation of the words in the law, instead taking into consideration the public interest and the likely consequences to society from their ruling.
Unfortunately, the Hong Kong judiciary, some of whose members clearly are still operating in the Stone Age not because of the anachronistic wigs they wear but because of their archaic thinking, never adopted such a pragmatic approach. We can all recall the classic case of Ng Ka-ling, the "right of abode" case in 1999, when the Court of Final Appeal (CFA), presided over by then-chief justice Andrew Li Kwok-nang, made a strict interpretation of Article 24 of the Basic Law in such a way that practically opened the floodgates for 3 million Chinese-mainland children to enter Hong Kong immediately without following the quota of 150 per day. We can also recall that then-chief secretary Anson Chan Fang On-sang came out to criticize the CFA decision and requested on behalf of the SAR government an interpretation by the Standing Committee of the National People""s Congress, which solved the crisis. Interestingly, one of the main concerns of the current protesters is their allegation that the mainland immigrants had taken over their social benefits such as housing. So they should really thank the Standing Committee of the NPC for playing an effective goalkeeping role!
Hong Kong is certainly not the only jurisdiction that has the emergency regulation in its statute books. Common sense would suggest that on rare occasions when a jurisdiction is in a state of emergency that imperils the public, there is a need to bypass the cumbersome normal legislative process for the executive to introduce special measures to cope with the unforeseen emergency, as long as such a law is imposed only temporarily, until properly vetted by the legislature. This is common sense
Hong Kong is certainly not the only jurisdiction that has the emergency regulation in its statute books. Common sense would suggest that on rare occasions when a jurisdiction is in a state of emergency that imperils the public, there is a need to bypass the cumbersome normal legislative process for the executive to introduce special measures to cope with the unforeseen emergency, as long as such a law is imposed only temporarily, until properly vetted by the legislature. This is common sense.
Unless the two judges are living in ivory towers, they should have witnessed the havoc the rampaging black shirts have done to our society the last six months. There is clearly no denying the fact that Hong Kong is now in a perilous state, which should trigger the use of Emergency Regulations Ordinance to restore law and order. And one major hindrance to effective law enforcement is the unregulated wearing of full face masks, which effectively hides the identity of the perpetrator of any crime. It is worth noting that many leading democratic Western countries, such as the US and France, have such laws in place. Hence the introduction of an emergency law banning the wearing of face masks is irrefutably standard practice and essential, and it has proved effective in recent weeks when it was being implemented. Where is the public interest for the judges to strike out the anti-mask law in this critical moment? Are they on the side of the protesters or on the side of guardians of the rule of law?
I have three further observations. Firstly, we should examine whether the two judges, Chow and Lam, are indeed qualified to rule on this constitutional issue. From an internet search: Chow graduated from the University of Hong Kong in 1987 and after that was in private practice majoring in civil cases until he was appointed a High Court judge in 2010, first as recorder, and then as a judge in 2014. Lam was in private practice from 1994 to 2013, when he was appointed a High Court judge. I may be wrong, but there does not seem to have anything in their CVs to suggest any expertise in constitutional law, let alone Chinese constitutional law. Therefore, it is fair to call into question their qualifications to preside over cases concerning important issues relating to Chinese constitutional law. This is especially so as the Basic Law is drafted on the Continental-law system, and it’s fair to question their understanding of how the Chinese Constitution should be interpreted. By the way, it can be seen on internet searches that Chow is the judge who overturned the government decision to ban "pro-democracy" activist Agnes Chow Ting from the Legislative Council election, whereas Lam was recorded as making criticism in open court the interim injunction order granted by his colleague, Justice Conrad Seagroatt, on the University of Hong Kong""s application to ban the media on the use of the secret audio tapes of council discussion on the appointment of Professor Johannes Chan Man-mun""s candidacy for a senior managerial post. I just hope that they are genuinely impartial in their political instance.
Secondly, since Chow graduated from HKU. I just wonder whether Johannes Chan, SC, who represents the plaintiff in this case, was once his professor. We all know the trade secret that law firms would try to secure the service of a barrister taking into account their friendly relationship with the allocated judge of the trial. In this case, one wonders whether there is a conflict of interest that Chow should have declared on his relationship with the professor.
Thirdly, it is noted that one of the plaintiffs in this case, Leung Kwok-hung, or "Long Hair", obtained legal aid and secured the service of one of the top lawyers in Hong Kong, Hectar Pun. One wonders how he manages to pass the means test of the Legal Aid Department. Is he that poor, after having been a member of the Legislative Council for so many years and receiving substantial political donations? Also, why should the Legal Aid Department decide to spend a huge amount of taxpayer money to get the services of a top lawyer for him? If one is poor and goes to a public hospital to get treatment, can he insist on getting the service of a surgeon in private practice to conduct the operation on him? The Audit Commission should check whether the Legal Aid Department is wasting taxpayers’ money to favor opposition parties.
After the current disturbance is settled, there is little doubt that there should be a comprehensive review of the judiciary to bring it in line with the best practices in the world. Some of the considerations under review include the setting up of a constitutional court and that judges must have adequate academic qualifications, such as a degree in Chinese constitutional law, before being appointed to the bench of this court.
What is most worrying is that our courts seem to be siding with the rioters. We have seen most of the rioters can post bail. So far, over 70 people out on police or court bail have been rearrested in riots, and yet most of them can continue to enjoy freedom on bail, albeit with some restrictions, and even in serious cases of possession of gasoline bombs! So in the minds of the rioters, they have reason to believe that even if they are arrested, they will be bailed out; even if prosecuted, they will stand a good chance that the sympathetic judges will let them off lightly. If this is the case and the courts continue to fail to demonstrate their determination to give deterrent punishments, I am afraid the riots will continue for a long while; all society will suffer from the leniency of the courts.
The author is a council member of the Chinese Society of Hong Kong and Macao Studies.
The views do not necessarily reflect those of China Daily.