After trying to breach the firewall between the 2 Systems with the Extradition Bill, she's at it again, invoking the ERO to enact law by regulation. The PFCR, which she says is subsidiary legislation, sets penalties higher than permitted by Ordinance. Subsidiary legislation cannot override existing Ordinances, so she had better not try. Meanwhile, basic maths and weekend events suggest the anti-mask law fails the rational connection test and is unconstitutional.

Carrie Lam and the separation of powers
8 October 2019

What is it with Chief Executive Carrie Lam and the separation of powers? Twice in one year! First, she tries to ram through the Extradition Bill which would breach the firewall between the "Two Systems", a firewall which separates the mainland's shoddy court system from HK's widely-respected judiciary. Now, having failed to do that and unleashed what she called "huge havoc" in HK, she reaches for the colonial toolbox and tries to tear up the Basic Law (BL)'s separation of powers between the executive and legislative branches of our Government, by purportedly enacting her own law, the Prohibition on Face Covering Regulation (PFCR) under the Emergency Regulations Ordinance (ERO).

As we predicted on Friday morning before the announcement, in the press conference she and her (current) Secretary for Justice Teresa Cheng claimed that the PFCR is "subsidiary legislation" and as such, would be tabled in the Legislative Council (LegCo) after it resumes sitting on 16-Oct, in a process known as "negative vetting" where subsidiary legislation stands unless amended within a certain timeframe.

Negative vetting: rinse and repeat

Paragraph 10 of the LegCo Brief refers to Section 2(3) of the ERO, which states "[a]ny regulations made under the provisions of this section shall continue in force until repealed by order of the Chief Executive in Council". The brief continues with a suggestion that "approval would be sought from the CE-in-C to repeal the Regulation when the prevailing public danger drops to a level which no longer justifies the Regulation". Sought by whom? Presumably by the CE. So it stops when she says it stops, after consulting her Executive Council (ExCo). That is not how negative vetting is supposed to work.

Even if LegCo can "negatively vet" and amend the PFCR to remove all of its clauses (they can't actually repeal it), if the ERO is constitutional then there is nothing to stop the CE from re-enacting the PFCR or any other law-cum-regulation on her own, again and again. The only way to stop her would be to repeal the ERO itself. That would require a bill in LegCo, which the Government would not introduce, so it would have to be a members' bill. But under Basic Law (BL) Article 74, members' bills cannot relate to "public expenditure or political structure or the operation of the government" and those which are "relating to government policies" cannot be introduced without the CE's written consent, which she would not give.

The possible repeated passing of a regulation under ERO contrasts with the introduction of bills and their passage into law. Under BL Article 50, if LegCo refuses to pass an "important bill" introduced by the Government, then the CE, after consulting ExCo, can dissolve LegCo. She can only do that once in her term of office. If she does, then under Article 52(3), if the new LegCo refuses to pass the same bill, then the CE must resign. But there are no such provisions in the ERO to prevent a rinse-and-repeat enactment via regulations.

Fine and jail term exceed subsidiary legislation limits

Section 3(2) of the PFCR imposes a maximum fine at level 4 (HK$25,000) and imprisonment for 1 year for wearing a mask, even in a lawful assembly. But such penalties cannot be established with subsidiary legislation, because Section 28(1)(e) of the Interpretation and General Clauses Ordinance (IGCO) states:

"subsidiary legislation may provide that a contravention or breach of the subsidiary legislation is an offence punishable on summary conviction by such fine not exceeding $5,000 or by such term of imprisonment not exceeding 6 months as may be specified in the subsidiary legislation or by both such fine and imprisonment;"

The clear purpose of that section is to limit the ability of the executive to impose penalties under any subsidiary legislation, regardless of the ordinance to which that legislation is subsidiary. That reserves for LegCo the ability to set higher fines or higher maximum jail time in primary legislation, and that goes hand-in-hand with the separation of powers. The ERO, showing its antiquity, purports in section 3 to allow regulations which set penalties "including a maximum penalty of mandatory life imprisonment but excluding the penalty of death".

Subsidiary legislation cannot override any Ordinance

Now, the Government may point to another draconian clause of the ERO, Section 2(4), which claims that its regulations override any conflicting laws. It states:

"A regulation... shall have effect notwithstanding anything inconsistent therewith contained in any enactment; and any provision of an enactment which may be inconsistent with any regulation...shall... to the extent of such inconsistency have no effect so long as such regulation... shall remain in force."

But, IGCO Section 28(1)(b) states:

"(b) no subsidiary legislation shall be inconsistent with the provisions of any Ordinance;"

So if ERO regulations are subsidiary legislation (as the Government claims), then they cannot conflict with the IGCO, so section 2(4) of ERO is void. It follows that the lower sentencing limits in the IGCO must prevail.

We note that the ERO does not itself purport to override other ordinances, it only provides that its regulations do, but as those are subsidiary legislation, they can't. This is very important, because if the CE tries to use the ERO again, then it may well be to issue regulations which trample on other existing ordinances beyond the sentencing issue - for example the Police Force Ordinance (s52) which provides for no more than 72 hours' detention without charge. The IGCO prevents ERO regulations overriding existing ordinances. Put simply, if the CE wants to change the law, she can send a bill to LegCo in the usual way, but she cannot just issue regulations which conflict with existing laws.

We also note that ERO Section 2(g) purports to allow regulations "amending any enactment, suspending the operation of any enactment and applying any enactment with or without modification". The notion that subsidiary legislation can amend, suspend or modify primary legislation flies in the face of common sense, unless the relevant ordinance provides for such regulations itself. Put simply, regulations made under one law cannot amend another.

Judicial review of the ERO

As we predicted on Friday, a judicial review of the ERO and PFCR has commenced, with 24 pan-democrat (or as the Government calls them, "non-pro-establishment") legislators as plaintiffs. We are now putting the notice of application online as our courts still don't. On an extraordinary Sunday preliminary hearing, leave was granted to apply for the JR, to be heard in a rolled-up hearing in the last two weeks of October.

Whoever wins the JR, we expect this case to rise to the Court of Final Appeal, because the separation of powers is so important. The ERO dates back to 1922, pre-dating the Basic Law (BL) by 75 years, to a time when, under the Letters Patent, the Governor was also a LegCo member and appointed all of the other 13 members (subject to His Majesty's pleasure), including 6 government officials and 7 outsiders.

The Basic Law establishes a clear separation of powers, as we explained on Friday. In addition, we note that although some legislators (currently 7 listed here) sit in both ExCo and LegCo, they only sit in ExCo as advisers to the Chief Executive, or "non-official members". So they have no executive role, unlike principal officials. If a legislator takes any Government office and "becomes a public servant", then under Basic Law Article 79(3), he or she must leave LegCo.

There is certainly a system for delegating authority to the CE or other officials to make subsidiary regulations, but such authority, since 1997 and until now, has always been limited to minor matters related to specific legislation such as exempting HKEX from the Competition Ordinance. The ERO is a law that delegates the ability to make any law "whatsoever", disguised as a regulation and based on "emergency or public danger". There are ample precedents in other jurisdictions which suggest that a legislature cannot delegate its powers wholesale.

And is the PFCR itself constitutional?

Even if the ERO's law-making power survives a judicial review of its constitutionality, the PFCR does impose a restriction on the rights of free speech and assembly under BL Article 27. People have legitimate reasons not to be identifiable in peaceful marches, including lawful assemblies. For examples: a young man who hasn't told his mother that he is gay might still want to participate in a gay rights parade; and a civil servant might not want to be identified by the Government while calling for the democratisation of HK or China.

So to be constitutional itself, even if it were enacted by LegCo, the PFCR must satisfy a 4-hurdle necessity test. One of those hurdles is that the restriction must be "rationally connected" to a legitimate objective. The LegCo Brief at paragraph 3 states the objective:

"To restore public order, prohibition on facial covering in public assemblies, lawful and unlawful, would be necessary as it would effectively reduce act of violence..."

The reduction or elimination of violence is of course a legitimate objective, but the rational connection of banning masks (or even sunglasses, which cover part of the face) is in serious doubt, especially given the violence that followed its purported enactment. Indeed, a Sunday night Government announcement condemned "violent acts of masked rioters", rather making the point that the anti-mask law hadn't stopped them.

This is not rocket science, but simple maths: if someone is facing 10 years in jail for rioting, and putting on a mask reduces her probability of being caught by at least 10% (as well as protecting her from tear gas), then a 1-year jail term for the mask (or 6 months, if limited by the IGCO) is insurance worth taking. In any event, the sentences are likely to run concurrently, so the PFCR adds nothing to the overall sentence. And until the would-be rioter launches into the violence, she can keep the mask in her bag, complying with the PFCR and mixing in with the peaceful crowd of the assembly. A quick dive into a public toilet block is all that is needed to emerge in an anonymous, masked outfit.

So the PFCR, as it stands, achieves nothing - it is not rationally connected to its laudable objective. If such a restriction were to work, then it would need much higher penalties, and there would have to be a prohibition on possession of a mask in an assembly even if it is not worn. There would still be the practical issue of the heavy policing needed to stop-and-search people's bags for masks.

©, 2019

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