Court Rules Mask Ban Was Partially Unconstitutional

The Court of Appeal on Thursday upheld a lower court's ruling that a face mask ban the government imposed at authorised protests and rallies last year was unconstitutional, but affirmed the Chief Executive's powers to impose emergency regulations under a colonial-era law.

It ruled that a ban covering unauthorised protests is fine, and said the CE's invocation of the Emergency Regulations Ordinance (ERO) was valid.

The appeal court's deep dive into the constitutionality of the ERO stemmed from opposition lawmakers challenging the controversial "anti-mask" law, enacted under the ordinance in October last year.

The Chief Executive said she was imposing a mask ban at protests, illegal or authorised, because of "public danger". This was at a time that the court agreed was seeing serious social unrest and public disorder amid the anti-government protests.

The law prohibited anyone from wearing a mask without a reasonable excuse, and empowered the police to remove masks by force if necessary.

But the mask ban was challenged by 24 opposition lawmakers as well as veteran activist Leung Kwok-hung, who argued it should be considered unlawful and invalid because the ERO itself was unconstitutional.

They also argued that the anti-mask law was a disproportionate infringement on protected fundamental rights to freedom of expression, assembly, movement and privacy.

The lower court had agreed with these grounds, striking down the law. But the government appealed and on Thursday, it won a partial victory.

The three-judge panel at the appeals court said the ERO is constitutional, and the lower court judges' concerns were "misplaced".

The appeal court said the powers conferred on the Chief Executive are undoubtedly wide and extensive, but necessary.

It said in any case, she could not act "without rein as she wishes", because the CE's decisions remain subject to judicial scrutiny and emergency regulations made under these powers are subject to the negative vetting procedure in Legco.

The Court of Appeal also allowed a slither of the anti-mask law to remain -- the part that prohibits face masks at unlawful assemblies, saying this strikes a fair balance between individuals' rights and societal benefits.

But restrictions on face masks at authorised public meetings and processions are unconstitutional, the court said, adding that it was "difficult to see the justification for imposing a restriction on the freedom of demonstration" as long as these meetings and processions remain peaceful and orderly.

The police's powers to demand people remove their mask -- with force if necessary -- were also ruled unconstitutional. The court said the police already have the power to stop and check the ID of anyone acting suspiciously in a public place.

Pro-establishment figures had been calling for a face mask ban for some time before the Carrie Lam administration announced such a move, saying the fact that people could hide their identity was emboldening them to join protests the police had refused to approve.

As the appeal hearing got underway in January, the pro-democracy camp urged the government to withdraw its legal challenge, citing fears that the coronavirus outbreak ravaging the mainland city of Wuhan at that time would spread to Hong Kong.

With almost a thousand Covid-19 cases now recorded in the SAR, the vast majority of people are wearing face masks for protection, with new laws making them compulsory in some circumstances.