Hong Kong protests: top court to hear legal challenge against mask ban
- Court of Appeal grants the government and opposition politicians permission to challenge its April judgment on mask ban
- Judges say the questions raised are of great general or public importance and ought to be determined by the Court of Final Appeal
Both the government and 25 pan-democrats who initiated the judicial review had sought to bring the case to the Court of Final Appeal for clarification after losing various parts of the legal debate in the High Court.
On Friday, the Court of Appeal granted both sides permission to challenge its April judgment upon concluding that 10 questions they raised could all be considered as of “great general or public importance”.
The same court had earlier overturned parts of the Court of First Instance judgment and ruled in favour of the government by upholding the constitutionality of the colonial-era Emergency Regulations Ordinance (ERO) and finding the mask ban valid in unauthorised and unlawful assemblies.
The judges also held that it would be unconstitutional to ban masks in lawful public meetings and processions, or to grant police powers to physically remove them.
The unanimous decision – made by the Chief Judge of the High Court Mr Justice Jeremy Poon Shiu-chor, Court of Appeal vice-president Mr Justice Johnson Lam Man-hon and Mr Justice Thomas Au Hing-cheung – prompted both sides to appeal.
Court documents showed half of the 10 questions came from 24 incumbent and former lawmakers, led by Dennis Kwok Wing-hang.
Hong Kong mask ban legal when aimed at unauthorised protests, Court of Appeal rules
They questioned whether the ordinance had conferred general legislative power on the chief executive.
They also asked whether the ordinance could be read consistently with the Hong Kong Bill of Rights’ provisions on public emergencies.
Disqualified lawmaker “Long Hair” Leung Kwok-hung also took issue with the constitutionality of the chief executive’s power to make regulations in times of public danger.
But the government focused on the ban rather than the ordinance, seeking to clarify whether the ban was constitutional in public meetings and processions.
Its lawyers also questioned whether the judges had adopted the right standard of scrutiny in examining the ban for those two occasions.
The Court of Appeal concluded: “We are satisfied that all the questions raised are of great general or public importance which ought to be submitted to the Court of Final Appeal for determination.”
Hong Kong mask ban proponents, foes both plan to appeal recent ruling at city’s top court
Although the bill was withdrawn in September, the movement had by then morphed from peaceful marches into citywide protests that routinely resulted in vandalism and violent confrontations with police.
With the objective of restoring order, the government invoked the ordinance on the grounds of “public danger” to enact the Prohibition on Face Covering Regulation.
But the move, which banned face coverings at not just illegal assemblies but also lawful ones, sparked fears over declining civil liberties, prompting judicial challenges.
