ERO: one judicial review, two judges
16 October 2019
Webb-site has learned that, in a very rare move, the judicial review of the HK Chief Executive's decision to issue the Prohibition on Face Coverings Regulation under the Emergency Regulations Ordinance (ERO) will be heard by not one but two judges sitting together in the Court of First Instance (CFI).
The initial application was heard on Sunday 6-Oct-2019 by Justice Godfrey Lam Wan Ho. At the "rolled-up hearing" to be held on 31-Oct and 1-Nov, he will be joined by Justice Anderson Chow Ka Ming. Section 32 of the High Court Ordinance provides that CFI proceedings will be heard by a single judge (with a jury in criminal trials). For non-criminal hearings such as this one, there is only one exception to the rule: under Section 32(3), the Chief Justice of HK may direct that any proceeding, or class of proceeding, in the CFI "shall be heard and determined by 2 or more judges of the Court."
This is very rare, and the fact that Chief Justice Geoffrey Ma Tao Li has made this direction appears to emphasise the importance of this case, which we explained in our analysis Carrie Lam and the Separation of Powers (8-Oct-2019), and the one before that, Making laws via the ERO may be unconstitutional (4-Oct-2019).
We don't know what the dynamics of a 2-judge CFI hearing will be - for example, there is no room for a majority decision, so there will be pressure, or at least some expectation, on the judges to agree a unanimous decision rather than produce two opposing judgments!
In any event, whichever side loses is almost certain to appeal to the Court of Appeal and then to the Court of Final Appeal. If the Government loses in the CFA then it may become the Court of Semi-Final Appeal if the HK Government once again seeks an interpretation from the Standing Committee of the National People's Congress under Basic Law Article 158.
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