Anti-mask law to quell Hong Kong protests ruled unconstitutional by High Court

South China Morning Post 發布於 2019年11月18日09:11 • Jasmine Siu
  • Judges find government's use of emergency legislation for mask ban 'incompatible with the Basic Law'
  • Group of 25 pan-democrats challenged government, which argued restriction necessary to tackle escalating protest violence
The government’s ban against wearing masks during public assemblies has been challenged in the High Court. Photo: Felix Wong

A Hong Kong court has declared the government's anti-mask law unconstitutional.

High Court judges on Monday found the mask ban introduced under emergency legislation was "incompatible with the Basic Law", the city's mini-constitution.

Justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho ruled in favour of the 25 pan-democrats who challenged two laws that brought the ban into effect on October 5.

The high-profile constitutional challenge centred on the colonial-era Emergency Regulations Ordinance and its derivative, the Prohibition On Face Covering Regulation, introduced by the government on the grounds of "public danger" in a bid to quell the wave of protests sparked by the now-withdrawn extradition bill.

The anti-mask law, which was brought in using colonial-era legislation, was brought in on October 5. Photo: Felix Wong

The controversial move sparked six constitutional challenges, including the present two, testing the ordinance in the courts for the first time since it was enacted in 1922.

In a 106-page judgment handed down on Monday afternoon, the judges declared the ordinance "incompatible with the Basic Law" to the extent that it empowers the chief executive to make regulations on any occasion of public danger.

They also found the measure that gave police the power to require a person to remove his or her mask at public places a disproportionate measure given its "remarkable width".

"There is practically no limit on the circumstances in which the power under that section can be exercised by a police officer," the judges wrote.

But they left open the question of whether the ordinance is constitutional when used in times of emergency.

The judges will hear further submissions on Wednesday morning to decide the appropriate relief and costs for the legal challenge.

Their highly anticipated ruling came before the first two people accused of violating the ban were expected to return to court on Monday afternoon.

One applicant, former lawmaker "Long Hair" Leung Kwok-hung, said he felt very sad, accusing Chief Executive Carrie Lam Cheng Yuet-ngor of abusing power to fuel the ongoing conflict with the introduction of the ban.

"I won't comment on whether I have claimed victory or the government had lost," he told reporters outside court.

"All I have in mind is the people surrounded by police."

Mask ban unconstitutional say lawmakers, as they ask court to overturn law

Lawyers for the 24 incumbent pan-democratic lawmakers and their former colleague Leung said the ordinance was inconsistent with the city's mini-constitution, the Basic Law, because it had given the chief executive "virtually unfettered and unrestricted" powers to bypass the legislature to make laws.

They have also argued the regulation had "gone too far" in that it covered a wide range of peaceful conduct unrelated to public order and imposed disproportionate restrictions on fundamental freedoms.

But the government countered there was nothing in the Basic Law that prohibited the Legislative Council from authorising the chief executive to make regulations in times of emergency and public danger, and that the ordinance had repeatedly showed its usefulness.

Benjamin Yu SC, for the government, said the ban was "appropriate and essential" in light of the escalating violence and growing numbers of vulnerable young people taking part in the protests.

Hong Kong mask law enacted to 'save as many young people as possible'

More than 4,000 people have been arrested since mass protests broke out in June, with students accounting for 39.3 per cent of the total, according to police statistics released on November 13.

The regulation bars anyone from wearing "facial coverings" during public assemblies that are "likely to prevent identification", with those convicted facing up to one year in jail and a HK$25,000 (US$3,187) fine.

It also gives police officers the power to require a person to remove his or her mask at public places. Those failing to comply would have their masks removed by officers under an offence carrying a maximum prison sentence of six months and a fine of HK$10,000.

In rare move, two judges appointed to hear legal bids against mask ban

As of November 7, police have arrested 247 men and 120 women on suspicion of violating the regulation. Of those, 24 have been brought to court and their cases are still ongoing.

Hong Kong has been gripped by protests since June, when demonstrators rose up against the now-withdrawn extradition bill, which would have allowed for extradition to mainland China.

It has since developed into a wider anti-government movement with violence escalating in recent days from radical elements.

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