By Jerome A. Cohen
Yesterday, the spokesperson of the National People’s Congress Standing Committee (NPCSC) Legal Affairs Commission, Mr. Zang, responded to the HK court’s ruling by announcing that only the NPCSC can deal with Basic Law constitutional questions. The Central Hong Kong and Macao office’s Liaison Office in HK made a statement too, also suggesting a similar argument.
This view seems plainly contrary to the system established under Article 158 of the Basic Law, which contemplates the possible consideration of constitutional questions by the HK courts prior to final determination by the NPCSC, as has occurred previously.
Zang’s reference to Article 160 but failure to mention Article 158 seems an attempt to read out of the Basic Law one of its major premises. That would be roughly analogous to a staff member of the US Supreme Court announcing that American state courts can no longer consider federal Constitutional issues and that such issues are only to be decided by the US Supreme Court in Washington.
It was bad enough when in practice some years ago the HK Government successfully asked the NPCSC to dispose of certain key legal issues before the HK courts had an opportunity to consider them. Will there now be an attempt to uniformly deny the HK courts any opportunity to consider such issues through an NPCSC reinterpretation that totally emasculates all but the first paragraph of Art. 158? I doubt it. The NPCSC is likely to content itself with invalidating the HK court decision without denying HK courts the right to have made it. But let’s see!
Another issue is whether the NPCSC will wait until its December scheduled session to opine or, because of the emergency and legal confusion now generated in HK, it will urgently deal with the case in the immediate future. I would not be surprised to see the latter occur.