Top Court Rules Mask Ban Is Constitutional

Hong Kong's top court on Monday ruled that the mask ban Chief Executive Carrie Lam introduced on any kind of public gathering is constitutional, along with the colonial-era law she used to bring it in.

A five-judge panel at the Court of Final Appeal unanimously ruled that the ban on masks at protests and rallies – whether they are authorised or not – is proportionate and no more than reasonably necessary to prevent violence.

It also rejected a challenge by 25 pan-democrats to the constitutionality of the Emergency Regulations Ordinance, under which the mask ban was imposed at the height of the anti-government protests last year.

The court held that the ambit of the power to make subsidiary legislation under the ordinance in an emergency or a public danger is not unconstitutional, even though there is no official definition of an "emergency" or "danger".

The judges also explained why it is fine for the mask ban to apply not only to unauthorised assemblies, but also ordinary public gatherings.

"It is clearly proportionate for the Prohibition on Face Covering Regulation to seek to prohibit the wearing of facial coverings – used to hide the identity of law breakers and having an emboldening effect leading to degeneration of peaceful protests into violence – whether at an unauthorised assembly, a public meeting or a public procession," they said.

"The situation on the streets and in other public places in Hong Kong had become dire. Members of the public were fearful of going out to certain places and significant inconvenience was caused to the public at large by the blockage of roads and closure of public transport facilities," the judges continued.

"The interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked lawbreakers who, with their identities concealed, were seemingly free to act with impunity."

The High Court first ruled in November last year that the anti-mask law was unconstitutional as it went “further than necessary” in the restriction of fundamental rights.

But the government challenged that ruling, and while the Court of Appeal in April agreed that the banning of facial coverings at authorised protests and rallies was unconstitutional, it affirmed the chief executive's powers to impose emergency regulations under the colonial-era law.

Both parties were unhappy with the ruling and took the case to the Court of Final Appeal.

One of the applicants, former lawmaker Leung Kwok-hung, expressed disappointment at the top court's decision, saying it has not provided justice to the people of Hong Kong.

Leung pointed to criticism of the earlier High Court ruling on the issue from the National People's Congress Standing Committee, saying Hong Kong courts have been under immense political pressure and it is difficult for them to resist it.

Veteran democrat and lawyer Albert Ho, who was representing the pro-democracy applicants, said it was disappointing and surprising that the Court of Final Appeal had overturned the earlier ruling that it was disproportionate not to allow people to wear masks at authorised rallies.

Ho said he doesn't think it is reasonable to ban masks at peaceful protests when police already have the power to ask people to take off masks if a protest turns violent.

Lawmaker Holden Chow, whose DAB party was among those originally pushing for the mask ban, welcomed Monday's judgement saying it is a reflection of justice.