- But judges warn their decision ‘is not and should not be regarded as an encouragement for any person to cover their face’
- Acting chief judge Jeremy Poon adds continuing to wear mask still carries ‘risk of having acted contrary to law should the [government] later succeed on appeal’
A Hong Kong court has lifted a ban on face masks by rejecting the government's request to suspend an earlier order that declared it unconstitutional, but warned of uncertainty in light of a pending appeal.
Two Court of Appeal judges on Tuesday acknowledged "Hong Kong is in a state of public danger" and the government had presented a "reasonably arguable" appeal against a lower court ruling that the colonial-era emergency law, which empowered the ban, was unconstitutional when used in times of public danger.
However, they were not convinced the ban, introduced to tackle months of often-violent anti-government protests, was necessary to handle the law and order situation in the short term until the appeal was dealt with, and so rejected the administration's application for exceptional measures to temporarily reinstate the ban or suspend the lower court declaration.
But acting chief judge of the High Court Jeremy Poon Shiu-chor, who penned the joint ruling with Court of Appeal vice-president Johnson Lam Man-hon, warned their decision "is not and should not be regarded as an encouragement or condonation for any person to cover their face" in situations previously covered by the ban.
"We have in no way determined the appeals one way or the other," Poon wrote. "If one is to continue to wear masks … in the meantime, he has to face the inherent risk of having acted contrary to the law should the (government) later succeed on appeal."
Anti-mask law to quell protests ruled unconstitutional
The Court of First Instance on November 18 ruled in favour of 25 opposition politicians to allow two judicial reviews challenging the Emergency Regulations Ordinance and its derivative, the Prohibition on Face Covering, introduced in October.
Justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho on November 22 declared the ordinance incompatible with the Basic Law, the city's mini-constitution, when invoked in times of public danger, such as the present case. The judges also declared the mask ban made pursuant to the ordinance "invalid and of no effect".
Court suspends for seven days ruling that mask ban is unconstitutional
But such declarations were immediately suspended as the court understood the government was expected to appeal.
A notice of appeal was lodged the following working day, with the government arguing that the court should have allowed the executive branch broader discretion over emergency laws as the city had always been "executive-led" on constitutional matters instead of being governed by the principle of a pure separation of powers.
The government also demanded a temporary validity order that would allow the relevant laws to remain valid and legal effective, or alternatively a temporary suspension order to postpone declarations of unconstitutionality from coming into effect.
Its lawyers argued that striking down the ordinance's powers regarding public danger would severely tie the government's hands in dealing with the current state of serious public danger, and that lifting the mask ban would encourage participation in the already very violent protests, posing a threat to public safety.
They also argued the government needed to resolutely use all available legal means to stop the escalating violence, restore peace and prevent a small number of rioters from destroying the general public's rights and freedoms in daily life.
But the two appellate judges questioned how the proposed order would meaningfully assist the government in dealing with the situation, and countered that the administration should instead consider asking the court to bring forward the hearing of the appeal.
The Court of Appeal has set aside two days, from January 9, for the appeal to be heard.
The pro-democracy bloc welcomed the latest ruling and also took the chance to urge the government to drop the appeal to avoid putting the courts in a difficult position.
"The government should not take political issues and unconstitutional legal arguments to court," said Council Front lawmaker Claudia Mo Man-ching.
Civic Party lawmaker Alvin Yeung Ngok-kiu also warned the anti-mask law could not mend the rifts in society.
"To really address the problem, the government should respond to the five demands and come up with a political solution," Yeung said.
Regina Ip Lau Suk-yee, the former security minister and now an adviser to the city leader, said there was limited effect from the suspension of the mask ban.
"Not a whole lot of people are arrested under the law, so the deterrent effect is only limited," Ip said.
She however said the more serious consequence was that invoking the emergency law was found unconstitutional.
"It effectively means when the government faces a situation of public danger, it does not have an emergency power " that doesn't make sense! All governments need some power in an emergency," Ip said.
She urged the government to appeal, and if necessary to seek an interpretation from Chinese national legislation, the Standing Committee of the National People's Congress.
Police had since November 18 suspended law enforcement of the ban and made no further arrests.
Some 632 people had been arrested for offences under the regulation, as of November 14.
Among them, 61 were charged for allegedly wearing a facial covering during a public assembly but none had been convicted.
The Department of Justice said all ongoing proceedings for such offences would not proceed until the appeals were determined.
But it refused to comment on its next move, saying the legal proceeding was still ongoing.
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