HK protests: deployment of ‘nuclear power’ emergency law for mask ban goes to Court of Final Appeal

26-Nov-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Former Hong Kong lawmakers have launched their final appeal against the government’s use of a colonial-era law to impose a blanket ban on wearing masks during protests last year, likening its deployment to “a nuclear missile launcher”.

Their lawyers asked the city’s top judges on Tuesday to distinguish between invoking the emergency law to counter anti-government demonstrations and drawing on similar legislation for the Covid-19 pandemic, even though both allowed officials to bypass the legislature at a time of crisis.

In one of the most constitutionally significant cases in recent years, Hong Kong’s Court of Final Appeal was set to rule on the validity of the government’s decision to use the Emergency Regulations Ordinance to introduce the anti-mask law, which was enacted in October 2019 to outlaw face coverings at public gatherings.

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Starting on Tuesday, the two-day cross appeal was brought by both the ex-opposition lawmakers and the government following a ruling in April this year by a lower court.

The Court of Appeal found then that while it was constitutional for the government to ban the wearing of masks at unauthorised or illegal assemblies, the same was not true for legal demonstrations. It also overturned the lower court’s finding that the use of the Emergency Regulations Ordinance during a state of public danger was unconstitutional, as was the language in the ban granting police the authority to physically remove masks.

Gladys Li SC, for the lawmakers, said on Tuesday that the 98-year-old law held unfettered power so it had not been part of the legal order, as set out in Hong Kong’s mini-constitution, since the former British colony was handed back to China in 1997.

Comparing the law to a weapon of mass destruction, the barrister argued that “the unrestricted nuclear power of this missile launcher” was that it could be used to impose any regulation.

“The greatest seriousness of the untrammelled power of the missile is the ability to create criminal offences with a maximum term of life imprisonment,” she warned.

But Benjamin Yu SC for the government countered, saying that any regulation passed would have to withstand the city’s Bill of Rights, meaning it would be scrutinised by the court.

The Emergency Regulation Ordinance, which allows Hong Kong’s chief executive to impose any law in response to a state of emergency or public danger, without the legislature’s approval, was first introduced in 1922 under the British colonial government.

Yu added that just as other legislations, the ordinance should be allowed to be carried over beyond the handover in 1997, unless it was “expressedly intended or necessarily implied” that it was incompatible with the Basic Law.

When the government invoked that law to introduce the Prohibition on Face Covering Regulation on October 5 last year at the height of the anti-government protests, a group of 25 opposition politicians including sitting lawmakers lodged a legal challenge.

Those politicians have all either been disqualified from the Legislative Council following a Beijing ruling this month on lawmaker conduct or resigned in protest at the resolution, except “Long Hair” Leung Kwok-hung, who was disqualified early in his term in 2017 due to an invalid oath.

Li told the court there were key differences between the emergency law under challenge and the Prevention and Control of Disease Ordinance, through which the secretary for health has introduced anti-epidemic measures.

As a vehicle for preventing the spread of disease, the public health law had a specific purpose, Li said, whereas the scope of public danger under the Emergency Regulations Ordinance was more ambiguous.

Even the disease control law, which also gives the health secretary the power to bypass Legco during a pandemic, had been seen to backfire, Li added.

She cited the health authorities’ decision to ban all dine-in services at restaurants and other establishments, only to reverse the move when construction workers were forced to eat their lunch outside in the rain.

She said that “mayhem” may result from the absence of the public’s input into government decisions.

Li said there were provisions under the Basic Law allowing the chief executive to call urgent meetings with Legco, adding the city’s mini-constitution also stated that China’s president should have responsibility for declaring a state of emergency.

Barrister Johannes Chan Mun-man SC, who also represents the lawmakers, said the mask ban was inconsistent with the Bill of Rights because it effectively prevented all rights of assembly. He added that of all the protests in the past year, only 75 per cent had descended into chaos.

But Chief Justice Geoffrey Ma Tao-li, who presided over the appeal with four other top judges, said the figure was still very high, especially given the level of extreme violence.

Ma also challenged Li’s argument that the chief executive’s power was without limit under the Emergency Regulations Ordinance, saying that the exercise of such power would still have to comply with the city’s Bill of Rights.

Li argued that any regulations passed by the chief executive under her own subjective assessment would come into effect immediately.

While people could challenge it in court, the damage was already done and the legal action would be costly, she said.

The hearing continues on Tuesday afternoon.


Category: Hong Kong

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