This is a strange time to implement a ban on wearing masks. People around the world are being encouraged or required to wear them to
guard against the coronavirus. In Hong Kong, the widespread wearing of masks has helped the city contain the deadly Covid-19 disease. But the mask ban imposed by Chief Executive Carrie Lam Cheng Yuet-ngor in October was intended to deal with a very different public danger. At the time, the crisis facing Hong Kong was anti-government protests which often descended into violence. The mask ban, imposed under a rarely used emergency law, was intended to prevent radical protesters concealing their identity. It quickly ran into problems. The ban was widely ignored. Then, the Court of First Instance declared it unconstitutional. Last week, part of that judgment was overturned on appeal.
The ban on masks was held to be valid at unlawful or unauthorised protests. Now, officials must decide how to proceed.The appeal court’s ruling carefully considers how to balance the public interest in maintaining order with the protection of rights. In doing so, the court has made significant findings. It confirmed that the general power to pass laws lies exclusively with the legislature. Legco can, however, permit the city’s leader to pass subordinate legislation. This, it said, is what happened with the ban on masks.
The emergency law allows the chief executive to deal swiftly and effectively with any public danger. But this is subject to later vetting by Legco, which can always repeal the law. The three judges stressed while upholding a ban on masks at unauthorised gatherings that there are legal safeguards to ensure the power is not abused.
They confirmed that Hong Kong’s courts have the constitutional responsibility to declare legislation invalid if it breaches the Basic Law. This, the judges said, is a matter of settled law. The power, so important to the city’s judicial system, appeared to be questioned by a central government spokesperson after the lower court’s decision. The appeal court’s assertion offers some reassurance, but the issue may become controversial again in the future. The judges then declared the ban on wearing masks at lawful protests and the general power given to the police to remove masks in public places invalid.
The priority now is not protests, but public health. People need to wear masks. If the ban is to be implemented, it must be done sensitively with regard to people’s need to protect themselves and others from the virus. This would, surely, be considered a reasonable excuse for wearing a mask and therefore a defence under the law. But the mask ban has already caused confusion. There is a need to ensure people are not deterred from wearing masks. Officials should seriously consider removing the ban or suspending it. If violent protests cause chaos again, the mask law could be reinstated.
