'No Limit To What CE Can Do With Emergency Laws'

Invoking the Emergency Regulations Ordinance to enact anti-face mask law means there is "no limit to what the Chief Executive can do", the High Court was told on Thursday as opposition lawmakers launched a judicial review against government's controversial move.

The Carrie Lam administration had invoked the colonial era law in October to implement a ban on face masks during public events, saying this was needed to crackdown on violent protesters who were hiding their identity.

Arguing for the pan-democratic lawmakers, Senior Counsel Gladys Li told the court that Chief Executive Carrie Lam could have requested the Legislative Council to hold a special session instead of triggering the 1922 ordinance to bring in the anti-mask law.

The lawyer argued that Lam had bypassed Legco and violated the Basic Law, which states that the legislature is responsible for enacting laws in the SAR.

Li said this method is susceptible to great abuse and “there’s no limit on what the CE can do”.

The CE can make any laws that she finds desirable under the emergency ordinance ... and there’s no objective definition of desirability, argued Li.

She said that the CE could have asked the Legco president to commence a session to talk about the anti-mask law to show the transparency of the law-making process.

But the CE didn’t do so and had done no public consultation either, she added, rendering the whole legislation process intransparent.

Referring to the events that has led to the government action, Li said the now-withdrawn extradition bill “is the spark that led the flame" that set the fire and "deepened the already polarised society”.

Although the CE has apologised and privately said that’s unforgivable ...”we have seen no political accountability”, she said.

She said the mask ban which had immediate effect with the power of arrest is like a trailer of a movie. And the movie, she said, "is called terminator".

Legal expert Johannes Chan, who also appeared for the lawmakers, said the mask ban is extremely “sweeping in scope and indiscriminate in target”.

He argued that the ban restrains or infringes fundamental rights, especially when it prohibits people from wearing masks even in peaceful situations or even when they are far away from vicinity of protests.

He said wearing a costume mask of Guy Fawkes or Winnie the Pooh can be about conveying a message ... instead of just about trying to stay anonymous.

He questioned whether there was a need to penalise people wearing masks on the whole ...”just to catch a few who had trespassed the law”.

The hearing is expected to last two days before judges Godfrey Lam and Anderson Chow.

Senior Counsel Benjamin Yu, who represents the government, is expected to make his submission on Friday.

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