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

(SCMP) – 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by the government on the grounds of “public danger” in a bid to quell the wave of protests sparked by the now-withdrawn extradition bill.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 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.”

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.