Hong Kong mask law: government lodges appeal against court ruling that face covering ban is unconstitutional

Department of Justice confirms notice of appeal had been served to High Court and 25 pan-democrats who successfully applied for judicial review
Government expected to challenge High Court judges’ interpretation of the Basic Law

Hong Kong courts

Jasmine Siu

Published: 8:53pm, 25 Nov 2019

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The Hong Kong government has lodged an appeal against a court ruling that found its mask ban unconstitutional.

A Department of Justice spokesman on Monday confirmed that a notice of appeal had been served to the High Court and the 25 pan-democrats who successfully applied for judicial review over the two laws that brought the ban into effect last month.

The Court of First Instance last Friday declared the Emergency Regulations Ordinance incompatible with the Basic Law, the city’s mini-constitution, when invoked in times of public danger, as seen in the present case, and invalidated its derivative, the Prohibition on Face Covering Regulation.

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But both declarations were immediately suspended for seven days until November 29, or further court order, in light of the expected appeal.

The court challenge was brought against the government by 24 pro-democracy lawmakers and activist “Long Hair” Leung Kwok-hung in early October, soon after Hong Kong leader Carrie Lam Cheng Yuet-ngor announced she would invoke a colonial-era emergency law, which gives her far-reaching powers, to enact the mask ban.

The High Court ruled the government’s mask ban was invalid. Photo: Fung Chang

Two judges, Anderson Chow Ka-ming and Godfrey Lam Wan-ho, last week ruled that the face covering ban had gone beyond what was necessary to achieve the authorities’ goal of eliminating the emboldening effect of wearing masks and facilitating law enforcement in anti-government protests.

The ruling touched a nerve with Beijing. The following day, Zang Tiewei, spokesman of the Legislative Affairs Commission of the National People’s Congress Standing Committee, said only the Standing Committee, the nation’s top legislative body, had the power to decide whether Hong Kong laws complied with the Basic Law.

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The remark prompted critics to express fears that Beijing could issue an interpretation to override the court’s ruling. Under the Basic Law, Beijing has the right to give an interpretation which is deemed as final and binding, and while accepted by the legal fraternity, is also seen as a last resort, which if used prematurely could weaken the judiciary.

The government then applied for a temporary validity order, to continue the ban, and a longer suspension order.

But the court rejected both applications.

At the upcoming appeal, the government was expected to challenge the judges’ interpretation of the Basic Law and argue for an executive-led political system, in response to the finding that the ordinance had left the Legislative Council with “a diminished role”.

Government counsel was also expected to argue that the judges had failed to properly consider that the ban was only a temporary measure until the public danger subsided.

Some 632 people had been arrested for offences under the regulation, as of November 14.

Among them, 61 were charged for allegedly wearing a facial covering in public assemblies and processions but none had been convicted.

This article appeared in the South China Morning Post print edition as: Appeal lodged against mask ban ruling

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