Hong Kong mask ban legal when aimed at unauthorised protests, Court of Appeal rules in partially overturning lower court verdict

South China Morning Post 發布於 04月09日10:04 • Chris Lau, Jasmine Siu and Alvin Lum
  • Decision also overturns High Court ruling that government’s use of Emergency Regulations Ordinance was unconstitutional
  • But masks are allowed at lawful processions and police do not have the authority to physically remove masks from violators, judgment finds
Protesters wearing Guy Fawkes masks take part in an October demonstration against the then newly imposed law banning face masks in public in Hong Kong. Photo: EPA-EFE

A Hong Kong appeal court on Thursday overturned part of an earlier ruling that found the government's controversial ban on masks unconstitutional, declaring the measure imposed at the height of the civil unrest last year valid.

But the Court of Appeal ruled that while it was constitutional for the government to ban the wearing of masks at unauthorised assemblies, the same would not be true for legal demonstrations. Language in the ban granting police the authority to physically remove masks was also unconstitutional, it added.

The three appeal court justices also found the government had the power invoke the colonial-era Emergency Regulations Ordinance to legislate the ban, overturning the lower court's ruling that such a move would be unconstitutional even if a state of "public danger" in the city was cited.

Hong Kong police chase down a couple wearing face masks in Hong Kong's Central district on October 5, a day after the city's leader outlawed face coverings. Photo: AFP

Speaking outside the court, veteran activist "Long Hair" Leung Kwok-hung, one of those who had initially challenged the ban, said he was determined to take the case to the Court of Final Appeal for clarification on how precisely "public danger" was defined in the 98-year-old ordinance.

"I'm quite disappointed with the judgment," Leung said. "The definition of 'public danger' is too wide, it will allow the chief executive to abuse his or her power in order to prevent ordinary people from exercising their basic rights such as freedom of assembly or freedom of speech."

But Leung confessed his bid hinged on whether the government's Legal Aid Department would fund his case.

Hong Kong mask ban lifted: court refuses request to suspend earlier ruling

Pro-establishment lawmaker Priscilla Leung Mei-fun, meanwhile, an adviser to Beijing as a member of the Basic Law Committee, welcomed the decision in regard to the chief executive's authority to issue emergency regulations.

"It affirms the discretionary power of the executive under the advice of the Executive Council. This is a very important power inherent for the chief executive," Leung said, adding the regulation could be invoked without the legislature's scrutiny in the future.

On the particulars of the mask ban, Leung said Hong Kong "still faces certain threats" after explosives were found in recent months.

"After all the hiccups, I will leave it to government to decide whether to accept it (or appeal strictures on when and where it can be used)," Leung said.

Activists who initially took the government to court over the mask ban hope the Court of Final Appeal can clarify what constitutes a 'public danger' worthy of invoking the colonial-era Emergency Regulations Ordinance. Photo: EPA-EFE

Chief executive Carrie Lam Cheng Yuet-ngor's embattled administration put the ban in place on October 5, following months of civil unrest that kicked off in June with the introduction of an extradition bill that would have opened the door to sending suspects to mainland China.

Although the bill was withdrawn in September, the movement had by then morphed from peaceful marches into citywide anti-government protests that routinely resulted in vandalism and violent confrontations with police.

The government introduced the mask ban by invoking the colonial-era Emergency Regulations Ordinance (ERO) to prevent violent protesters from hiding their identities, saying the unrest amounted to a "public danger".

But the move, which banned face coverings at not just illegal assemblies but also lawful ones, sparked fears of declining civil liberties, and prompted activists and pro-democracy lawmakers to lodge judicial challenges.

Government starts appeal against decision to declare mask ban unconstitutional

The government has since been placed in an awkward position as it continues to seek legal backing for the ban, even as the Covid-19 pandemic has made masks ubiquitous in Hong Kong and prompted medical professionals to call for making them mandatory.

Some legal experts had called for the government to scrap the ban regardless of the ruling to avoid confusion, and suggested it would be perfectly fine for people to wear masks during the present global health crisis even if the appeal court sided with the government.

Since the ban was put in place, a police spokesman said 682 people had been arrested for wearing masks, with 61 being prosecuted.

Challenges filed first by Leung Kwok-hung, then a group of 24 opposition lawmakers, argued the move hurt freedom of expression and assembly, and that the ERO, which gave the government the power to pass subsidiary legislations without Legislative Council scrutiny, was inappropriate.

What happens if Hong Kong court upholds mask ban amid coronavirus pandemic?

In November, the High Court ruled both the ban and this particular use of the ERO were unconstitutional, saying the "near blanket prohibition" on face coverings along with a lack of limits on the force's authority to randomly stop mask wearers were not "reasonably necessary".

The decision infuriated Beijing and prompted the present appeal from the Department of Justice.

At the time, Zang Tiewei, spokesman for the Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC), the top national legislative body, said the power to declare a local law incompatible with the Basic Law, Hong Kong's mini-constitution, rested with no authority but the NPCSC.

The government appealed the court ruling in January as coronavirus cases began to flare up in mainland China.

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