Hong Kong court rules anti-mask law partially unconstitutional

HONG KONG — A Hong Kong court on Thursday ruled that a controversial anti-mask law is partially unconstitutional, implying that the use of face coverings would be allowed in legal public demonstrations but would remain banned in unauthorized assemblies, while police no longer have the authority to physically remove masks from violators.

The ruling by the Court of Appeal also confirmed that the Hong Kong government has the power to invoke the colonial-era Emergency Regulations Ordinance “on any occasion of public danger,” overturning part of an earlier High Court ruling that the law would give the chief executive too much power to make regulations.

The case highlights a fresh dilemma faced by Hong Kong authorities: Face masks once worn by black-clad protesters are now ubiquitous, as residents wear them to guard themselves against the coronavirus pandemic.

The government also recently invoked emergency laws to contain the outbreak by closing the airport to nonresidents and mandating that all arrivals to the city undergo self-quarantine.

“I’m disappointed with the judgment,” veteran activist Leung Kwok-hung said outside the court. “It would provide the chief executive with excessive power to prevent people from exercising their basic rights such as freedom of assembly and freedom of speech.”

The anti-mask law was introduced during the height of last year’s social unrest in Hong Kong, when protests morphed into violent standoffs between police and protesters.

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Pro-democracy lawmakers are determined to take the case to the Court of Final Appeal in order to seek clarification on the definition of “public danger.” The chief executive, Hong Kong’s top political position, “is subject to close judicial scrutiny… although there is no statutory definition for public danger,” the verdict reads.

“The problem with the ruling is that it grants too much trust to the executive bodies,” said Dennis Kwok, a pro-democracy lawmaker who represents Hong Kong’s legal sector. “But we are seeing authorities, including the police force, abusing their powers frequently.”

Kwok urged Chief Executive Carrie Lam to scrap the mask ban completely. “It would be a joke to ban people from wearing masks during a global pandemic,” he said.

At the beginning of the coronavirus outbreak, Lam advised against universal mask-wearing, but a skeptical public believed that the advice was politically motivated due to the legal proceedings of the anti-mask law. Lam later apologized for her remarks.

The anti-mask law was introduced during the height of last year’s social unrest, when peaceful protests — sparked by a now-withdrawn extradition bill — morphed into violent standoffs between police and protesters. A total of 682 people have been arrested under the legislation since the mask ban took effect last October.

A group of pro-democracy lawmakers, and Leung, lodged a legal challenge to the law on the grounds that it would hinder people’s political rights. In the previous judgment in November, the High Court ruled the anti-mask law unconstitutional, saying that the restrictions on rights “went further than what is reasonably necessary.”

The High Court ruling drew the ire of officials in Beijing. China’s top legislature later said in a statement that the courts in Hong Kong “have no power” to rule the constitutionality of legislation. The Hong Kong government followed up with an appeal in January.

Under the “one country, two systems” model, the semi-autonomous territory enjoys an independent judicial system inherited from British common law.

Thursday’s “decision also emphasizes that it is settled law that the Hong Kong courts have the right to review laws and regulations,” Stuart Hargreaves, an associate professor of law at the Chinese University of Hong Kong, told the Nikkei Asian Review. “I think it was particularly important… given it is a core principle of Hong Kong’s judicial independence.”

While Hargreaves believes the ruling is “largely a sensible one,” he noted that the definition of “unauthorized assemblies” remained a gray area. “There is a risk that some [would]… thus be reluctant to join even peaceful and lawful assemblies. It will be important to keep an eye on how this holding is implemented in practice,” he said.

According to the Basic Law, the city’s mini-constitution, the power of final adjudication is vested in the local courts. Still, China’s National People’s Congress Standing Committee can interpret the Basic Law over the final adjudication, as it has done five times since the handover in 1997.

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