- The hasty use of a draconian colonial-era law was always likely to be challenged and, although the judges’ ruling may be appealed against, it has to be respected and understood
A court's ruling that a ban on wearing masks at protests in Hong Kong is unconstitutional is a blow to the government as it struggles to restore order. Some have been surprised by the judgment, but the city leader's hasty use of a draconian colonial-era law was always likely to be vulnerable to a legal challenge.
Chief Executive Carrie Lam Cheng Yuet-ngor used sweeping powers under the Emergency Regulations Ordinance to impose the ban on October 4. This was the first time the emergency law had been used since the 1967 riots. But the Court of First Instance ruled the power it gave the government to make law at a time of public danger did not survive the city's return to China in 1997. Since then, that right has belonged only to the elected legislature.
Anti-mask law in Hong Kong ruled unconstitutional by High Court
The court left open the question of whether the power could be used if a state of emergency was declared. Lam made it clear when announcing the ban that she was not making such a declaration. The two judges also held that the ban restricted human rights, notably the freedom of expression. It went too far in prohibiting the wearing of masks at lawful protests. And a power given to the police to remove masks worn in public at any time to reveal a person's identity was found by the court to be too wide. The mask ban, therefore, failed several legal tests.
Those minded to criticise the court, at this time of deep political divisions, should take the trouble to read the more than 100-page ruling. It shows careful, dispassionate consideration of the complex legal issues involved. The judges noted the escalating violence in Hong Kong, but they said it was important at such challenging times for the court to rule strictly in accordance with established legal principles and exclude political considerations. This point should be stressed. The ruling is an exercise in judicial independence, a pillar of the city's legal system. The judgment can be challenged on appeal, but must otherwise be respected and understood.
The court is not ruling out a ban on masks. But if one is to be imposed, it must follow the proper legislative process and strike the right balance between law enforcement and protecting rights.
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