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It is now against the law to wear masks at protests. Photo: Winson Wong

Hong Kong protests: High Court rejects legal bid to suspend ‘Henry VIII-style’ anti-mask law

  • Led by legal sector lawmaker Dennis Kwok, the group took Hong Kong leader Carrie Lam, her justice secretary and the police commissioner to court
  • Mr Justice Godfrey Lam dismisses legal challenge from the 24 pro-democracy lawmakers seeking suspension of the face-covering restrictions

A judge has rejected a bid from pro-democracy lawmakers to suspend the government’s ban on wearing masks at protests in Hong Kong.

The ruling by Mr Justice Godfrey Lam Wan-ho on Sunday came after lawyers for the 24 opposition politicians and the government locked horns in the High Court over the emergency measure, which has caused uproar since its introduction this weekend, triggering widespread unrest.

On Friday, Hong Kong leader Carrie Lam Cheng Yuet-ngor invoked the colonial Emergency Regulations Ordinance to enact a ban on face masks at all rallies, regardless of whether the events are lawful or unauthorised.

The group of pro-democracy lawmakers likened the ban to “Henry VIII-style suppression” when they launched a legal fight to get it suspended and revoked.

Led by legal sector lawmaker Dennis Kwok, named as the first applicant, the cohort took Chief Executive Carrie Lam Cheng Yuet-ngor, her justice secretary and the police commissioner to court.

In his affirmation, Kwok likened Lam to Henry VIII, the English king notorious for his six marriages and obsession with his divine royal rights and quelling dissent with treason charges.

They filed their judicial challenge on Saturday, together with an application to temporarily put the Prohibition on Face Covering Regulation on hold.

The regulation was enacted by Lam under the Emergency Regulations Ordinance on Friday and came into force at midnight. The court is set to process the applications at 10am on Sunday.

Speaking at a press conference on Saturday night, Kwok said it was unconstitutional for Lam to make laws without passing them through the Legislative Council.

“This is basically, ‘I say what is the law, I say what applies and I say when that ceases to be law,’” Kwok said.

While the government argued that lawmakers would eventually vet the regulation, Kwok said it would only happen after Legco resumed on October 16. Even so, he said lawmakers would “have no power to repeal the law”.

Dennis Kwok warned that Carrie Lam could make more laws under the emergency ordinance. Photo: Handout

He also warned that Lam could make more laws under the ordinance if the practice was not stopped.

On Friday, Lam announced she would invoke the ordinance, which gave her far-reaching powers to enact the mask ban in a bid to quell the months-long anti-government protests.

The colonial-era ordinance grants the city’s leader the authority to “make any regulations whatsoever which he [or she] may consider desirable in the public interest” in case of “emergency or public danger”.

Hundreds of protesters take to streets in defiance of anti-mask law

In a video message issued earlier on Saturday, Lam said she noted that the pan-democrat lawmakers claimed the government did not have the legal basis, or had even circumvented Legco, to put the regulation in place.

“I must solemnly point out that these are not facts and are groundless,” she said.

According to the court filing, the 24 lawmakers are asking the Court of First Instance to rule that Lam’s move, as well as the emergency law and the ban, are unconstitutional and unlawful.

Carrie Lam, with her No 2, Chief Secretary Matthew Cheung, on Friday. Photo: Winson Wong
They argued the ordinance had infringed on the city’s mini-constitution, the Basic Law, which states that Legco “shall be the legislature of the region”. The Basic Law came into existence after the city’s transfer from British to Chinese rule in 1997.

“The government, as the executive branch, only enjoys the power to draft and introduce bills, motions and subordinate legislation to the Legislative Council. The primary duty to make law is on Legco,” the court document said.

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The ordinance, which came into existence in 1922, had also run afoul of the city’s Bill of Rights, enacted in 1991, which suggested that emergency measures should only be put in place when there was a threat to the life of the city. They argued that the ordinance should have been repealed in 1991.

On Friday, the High Court refused to grant activists’ requests for a temporary suspension of the ban following an urgent hearing that ran until midnight.

Former student leader Lester Shum and retired civil servant Kwok Cheuk-kin filed two separate judicial reviews to challenge the ban from a citizen’s perspective.

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