HK protests: top court to hear legal challenge against mask ban

13-Jul-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong’s top court will hear the legal challenge brought against the government’s ban on masks imposed at the height of anti-government protests last year.

Both the government and 25 pan-democrats who initiated the judicial review had sought to bring the case to the Court of Final Appeal for clarification after losing various parts of the legal debate in the High Court.

Mask-wearing anti-government protesters march in Causeway Bay on Halloween night. Photo: May Tse

Mask-wearing anti-government protesters march in Causeway Bay on Halloween night. Photo: May Tse

On Friday, the Court of Appeal granted both sides permission to challenge its April judgment upon concluding that 10 questions they raised could all be considered as of “great general or public importance”.

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The same court had earlier overturned parts of the Court of First Instance judgment and ruled in favour of the government by upholding the constitutionality of the colonial-era Emergency Regulations Ordinance (ERO) and finding the mask ban valid in unauthorised and unlawful assemblies.

The judges also held that it would be unconstitutional to ban masks in lawful public meetings and processions, or to grant police powers to physically remove them.

The unanimous decision made by the Chief Judge of the High Court Justice Jeremy Poon Shiu-chor, Court of Appeal vice-president Justice Johnson Lam Man-hon and Justice Thomas Au Hing-cheung prompted both sides to appeal.

Court documents showed half of the 10 questions came from 24 incumbent and former lawmakers, led by Dennis Kwok Wing-hang.

They questioned whether the ordinance had conferred general legislative power on the chief executive.

They also asked whether the ordinance could be read consistently with the Hong Kong Bill of Rights’ provisions on public emergencies.

Disqualified lawmaker “Long Hair” Leung Kwok-hung also took issue with the constitutionality of the chief executive’s power to make regulations in times of public danger.

But the government focused on the ban rather than the ordinance, seeking to clarify whether the ban was constitutional in public meetings and processions.

Its lawyers also questioned whether the judges had adopted the right standard of scrutiny in examining the ban for those two occasions.

The Court of Appeal concluded: “We are satisfied that all the questions raised are of great general or public importance which ought to be submitted to the Court of Final Appeal for determination.”

Carrie Lam Cheng Yuet-ngor’s embattled administration had put the ban in place on October 5, following months of civil unrest that kicked off in June with the introduction of an extradition bill that would have opened the door to sending suspects to mainland China.

Although the bill was withdrawn in September, the movement had by then morphed from peaceful marches into citywide protests that routinely resulted in vandalism and violent confrontations with police.

With the objective of restoring order, the government invoked the ordinance on the grounds of “public danger” to enact the Prohibition on Face Covering Regulation.

But the move, which banned face coverings at not just illegal assemblies but also lawful ones, sparked fears over declining civil liberties, prompting judicial challenges.



Category: Hong Kong

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