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

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

Lawyers against the ban argued that it gave Chief Executive Carrie Lam Yuet-ngor unrestricted powers to make laws

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The government’s ban against wearing masks during public assemblies has been ruled unconstitutional in the High Court.
Photo: SCMP/ Felix Wong

The government’s anti-mask law is unconstitutional, says a Hong Kong court. 

Justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho, of the High Court, on Monday ruled in favour of the 25 pan-democrats who challenged two laws that effected the ban against wearing masks since 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by the government on the grounds of “public danger” in a bid to quell the wave of protests sparked by the now-withdrawn extradition bill.

Stand off between police and demonstrators continues at Poly U on Monday

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.

Lawyers for the 24 incumbent pan-democratic lawmakers and their former colleague “Long Hair” Leung Kwok-hung 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.

The regulation banned anyone from wearing coverings that could prevent identification and could result in an HK$25,000 fine.
Photo: SCMP/ Felix Wong

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.

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 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.
 
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.

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