On 10 December 2019, the Court of Appeal refused the government’s application to temporarily suspend an earlier judgment made in the High Court, which declared unconstitutional the government’s ban on covering one’s face in public. Kwok Wing Hang & Others v Chief Executive in Council & Another; Leung Kwok Hung v Secretary for Justice & Another [2019] HKCA 1396.

The Court of Appeal’s refusal to intervene in the case, and to deny the government’s request, marks the latest victory for the protest movement in Hong Kong, which started six months ago in response to a proposed extradition bill but has now morphed into a broader movement pushing for electoral reform and an independent inquiry into allegations of police violence.

The decision also marks an important inflexion point for the rule of law in the city, as the court cast doubt on the compatibility of the rule of law with orders temporarily allowing unconstitutional laws or executive actions to operate during periods of judicial review.

LEGAL ISSUES INVOLVED

On November 18, 2019, the High Court ruled that the government’s Emergency Regulations Ordinance was incompatible with the Basic Law. The face-mask ban (formally the Prohibition on Face Covering Regulation), issued through the Emergency Regulations Ordinance, was thus “invalid and of no effect”.

The government applied to the Court of Appeal for a “Temporary Validity Order” (TVO), or in the alternative a “Temporary Suspension Order” (TSO), in respect of the lower court’s decision.

A TVO gives temporary validity to a law or executive action that has been declared unconstitutional and thus invalid by the courts; a TSO suspends the declaration of unconstitutionality. While both types of order permit an unconstitutional law or executive action to remain operative during judicial review, a TVO shields the executive from liability arising out of reliance on the law or executive action during the order’s operation, whereas a TSO does not.

The government argued that the Emergency Regulations Ordinance was necessary for the maintenance of public safety while it awaited the outcome of its appeal against the High Court decision because the Emergency Regulations Ordinance allowed the government to make further emergency regulations, including the Prohibition on Face Covering Regulation.

The government contended that suspending the Prohibition on Face Covering Regulation sent the “wrong message” to the public and “encourage[d] protesters to wear masks… committing acts of violence and vandalism”[1]. It thus sought a TVO or TSO, so that emergency regulations could be maintained on appeal.

The grant of a TVO or TSO is an exceptional judicial remedy available to the government and requires exceptional circumstances whereby the operation of the unconstitutional law or action is “necessary to do practical justice in meeting the needs of law and order of the society as a whole.”[2] The court is required to balance the relevant and competing interests within society.[3]

THE COURT OF APPEAL DID NOT AGREE WITH THE GOVERNMENT

The Court of Appeal rejected the government’s arguments. The court held that the government was assuming that the constitutionality of the Emergency Regulations Ordinance would be upheld on appeal. The mere possibility of reversal was not sufficient to issue an extraordinary remedy like a TVO or a TSO. 

The court also held that the uncertainty around the lawfulness of the Prohibition on Face Covering Regulation pending the appeal, and the risk of liability should the regulation be upheld, was a sufficient deterrent against the covering of faces in public, and that the threat to public safety was not great enough to warrant a TVO or TSO. Besides, the invalidity of its enabling legislation, the Emergency Regulations Ordinance, rendered the Prohibition on Face Covering Regulation invalid ab initio.

THE DECISION BY THE COURT OF APPEAL IS SIGNIFICANT FOR NOT AUTOMATICALLY DEFERRING TO THE GOVERNMENT

The Court of Appeal’s decision is significant for questioning the logic of staying a judicial declaration of unconstitutionality through the remedy of a TVO or TSO. Suspending the effect of a declaration of unconstitutionality is a recent development in the common law[4], available to judges in some jurisdictions such as Canada and South Africa but unavailable in others such as Australia and Singapore. Although the remedy has been applied in Hong Kong previously[5], the courts have been clearly uncomfortable with such orders. In his judgment, Poon Ag CJHC quoted Tang VP in A & Others v Director of Immigration[6]:

“It is clear that the court has the power to stay an order and that includes the power to stay a declaration.  But it seems to me that a stay would not make the judgment a nonjudgment: as if it had never been made.”

The discomfort is understandable because such orders are in significant tension with the principles of judicial review, separation of powers, and the rule of law. When a judicial officer makes a finding that a law is not constitutional, but then grants a government’s request to “stay” such a finding, the effect is to give significant leniency to the Executive in permitting them to continue to avoid constitutional limitations.

In extreme cases, such orders may even incentivize governments to continue breaking constitutional law and absolve them of liability, or at the very least, to effect unconstitutional actions against citizens and then to put off the consequences to another day while the affected citizen is left without remedy. The High Court of Australia has held, when it rejected the use of such orders, that it would be perverse to maintain in force an unconstitutional law when noncompliance with such law could result in criminal prosecution[7].

Here, the Court of Appeal’s decision to refuse the government’s application despite six months of sometimes violent protests, arguably reflects that judges are considering the role they must play in times of crisis, particular with respect to ordinances or laws that may threaten fundamental rights or basic guarantees.

How the courts in Hong Kong continue to treat executive action in response to the current protests will certainly impact the future of the judiciary, and the role it plays, in Hong Kong.

*****

Legal Citations

[1] Kwok Wing Hang & Others v Chief Executive in Council & Another; Leung Kwok Hung v Secretary for Justice & Another [2019] HKCA 1396, para. 33.

[2] per Lam J in Vallejos v Commissioner of Registration & Another [2011] 6 HKC 469

[3] per Cheung J in Chan Kin Sum Simon v Secretary for Justice & Another HKCAL 79/2008

[4] Reference Re Manitoba Language Rights [1985] 1 SCR 721

[5] Koo Sze Yiu v Chief Executive of the HKSAR [2006] HKLRD 455

[6] unreported, CACV 313-317/2007

[7] Ha v New South Wales (1997) 189 CLR 465

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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