Blow to Hong Kong govt as court rules controversial ban on masks unconstitutional

A photo taken on Oct 7, 2019, shows protesters shouting slogans as they gather outside the Eastern District Courts in Hong Kong, where the first protesters arrested for wearing face masks appeared in court.
A photo taken on Oct 7, 2019, shows protesters shouting slogans as they gather outside the Eastern District Courts in Hong Kong, where the first protesters arrested for wearing face masks appeared in court.PHOTO: AFP

HONG KONG • A Hong Kong court has found that the city government's controversial mask ban is unconstitutional, delivering a fresh blow to an administration struggling to contain increasingly violent protests.

The High Court ruling came yesterday in response to a challenge filed by the city's opposition lawmakers.

Chief Executive Carrie Lam imposed the ban last month by invoking colonial-era emergency powers for the first time in more than half a century.

Mr Dennis Kwok, a pro-democracy lawmaker who led the court challenge against the anti-mask law, called on Mrs Lam not to appeal against the decision and also urged prosecutors to drop charges against those detained under the mask law.

Following the ruling, Senior Police Superintendent Li Kwai Wah told a regular briefing that officers would temporarily stop enforcing the mask ban.

He said only three people have been arrested under the law since early last month.

"Only one has been prosecuted and the case is still pending a court hearing. We shall discuss with the Department of Justice what to do with this case and other cases," he added.

Mrs Lam's move on Oct 4 to invoke the Emergency Regulations Ordinance (ERO), last used during riots in 1967, triggered the fury of protesters and prompted a fresh wave of demonstrations which started over a now-withdrawn extradition Bill.

The ERO allows the government to grant itself sweeping new powers, including the ability to censor publications and the Internet, and arbitrarily detain people and search properties.

 
 
 
 

Yesterday's ruling raises questions about how far the government can go under that statute.

"The court seems to be putting some real limits" on the ERO, said Mr Antony Dapiran, a Hong Kong-based lawyer.

"But remember, this decision will surely be appealed by the government," he said.

Judges Godfrey Lam and Anderson Chow said the measure "exceeds what is reasonably necessary to achieve the aim of law enforcement, investigation and prosecution of violent protesters even in the prevailing turbulent circumstances in Hong Kong and it fails to strike a reasonable balance between the societal benefits promoted and inroads made into the protected rights".

They ruled the ban was disproportionate due to its "remarkable width" and there "is practically no limit on the circumstances in which the power under that section can be exercised by a police officer".

Opposition lawmaker Alvin Yeung said: "Carrie Lam failed to learn from her mistakes... They repeated the same mistakes made in the extradition saga - arrogantly conducted, no meaningful consultation and ignoring all sensible voices. Now, the court has proven that very point."

BLOOMBERG

A version of this article appeared in the print edition of The Straits Times on November 19, 2019, with the headline 'Blow to HK govt as court rules controversial ban on masks unconstitutional'. Print Edition | Subscribe