The author is a law student at the University of Hong Kong
"Sovereign is he who decides on the exception," Carl Schmitt famously claimed (Political Theology, University of Chicago Press 2005, p.5). It is submitted that the ban on face covering and the Emergency Regulations Ordinance itself amount to a threat to the sovereignty of the Central Government. The ongoing debate regarding the ban and the Ordinance has been one on their merits and substance, but little has been said about their implications on sovereignty.
Emergency powers are usually integral parts of sovereignty. Schmitt explained (Political Theology, pp.6-7):
It is precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated.
The Chief Executive (with the help of the Executive Council) by acknowledging "an extreme emergency" that "the whole city is in danger" decides to "eliminate" the emergency by banning face covering. Regardless of whether the Legislative Council can amend or repeal any emergency regulation as subsidiary legislation under the Emergency Regulations Ordinance, issues which pave the way to deny or extinguish sovereignty should never be considered and resolved in a judicial review application that concerns the merits and substance of the Emergency Regulations Ordinance and/or the subsidiary regulations derived from it. The possibilities that the court would rule in favour of the Government and that the Legislative Council would approve of the ban only confirm the judicial and legislative branches of the HKSAR could actually defer to the Chief Executive on exercising emergency powers.
In Hong Kong's mini-constitution, the governmental organ to decide on the emergency or exception is the Standing Committee of the National People's Congress (Article 18(3) of the Basic Law). Any other body who seeks to implement emergency regulations is unauthorised by our constitutional document and hence unconstitutionally and illegally poses a challenge to the emergency powers of the Central Government.
The Central Government must have understood that emergency powers represent sovereignty, so it has been designed that those powers are reserved to the Central Authorities. The preservation of the Emergency Regulations Ordinance at the 1997 Handover does not substantiate its validity and constitutionality. Article 160(1) of the Basic Law provides that "if any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law." It should not be assumed that the Central Government has approved of the Chief Executive's power to make emergency regulations through its prima facie preservation of the Emergency Regulations Ordinance. Even if the Central Government had desperately hoped to end the recent chaos in Hong Kong, it would not have consented to giving the Chief Executive unnecessarily wide powers which may be comparable to the sovereignty to decide on the exception. There is no good reason to relinquish or delegate sovereign powers concerning emergency to a local government. The invocation of Emergency Regulations Ordinance by the Chief Executive is likely to have constituted a competing claim to sovereignty over Hong Kong.
Had the court been aware of the severity of the constitutional crisis sparked by the face covering ban, it would have perhaps issued the interim injunction and indicated the probable invalidation of the relevant legislation at the substantial hearing of the judicial review application. As the court is proceeding with the judicial review in the direction of determining the merits and substance of the ban on face covering, there is lamentably a real prospect that the ban as well as the Ordinance, which are offensive and injurious to the sovereignty of the Central Government, would be allowed to stand.