Too early to abandon Hong Kong’s mask ban, government advisers say, while legal scholar suggests review is now in order
- Executive Council members Regina Ip and Ip Kwok-him say violent protests could again flare up once city’s battle with Covid-19 subsides
- But legal scholar Albert Chen suggested legal challenges will continue to crop up over an order appeal court judges said was intended to be temporary
Hong Kong’s controversial mask ban should remain in effect beyond the city’s battle with Covid-19, just in case violent protests return, two senior government advisers have said, despite calls from a legal heavyweight to have the ban reviewed to avoid future legal challenges.
Executive Council members Regina Ip Lau Suk-yee and Ip Kwok-him on Friday said it was too early to abolish the law. Their remarks came a day after the Court of Appeal overturned a lower court decision, ruling it was constitutional for the government to invoke a colonial-era emergency law in issuing the legislation – so long as it was limited to unlawful assemblies.
The government had cited the threat of “public danger” in employing the Emergency Regulations Ordinance (ERO).
“The situation remains highly volatile and unsettled … It’s too early to consider repealing the regulation,” said former security minister Regina Ip, who warned protests could return before September’s general election.
“We may have to wait until the epidemic is over and see whether there continue to be protests. That may have to wait till the end of this year or later,” Ip Kwok-him agreed.
But constitutional law scholar Albert Chen Hung-yee of the University of Hong Kong, who advises Beijing as a member of the Basic Law Committee, said the ban needed to be reviewed and should only be reintroduced if violent clashes returned.
“I think the government should seriously consider whether the circumstances now are such that the anti-mask regulation should still stand,” Chen told the Post. Otherwise, he said, there could be future legal challenges as to whether “public danger” still exists.
“I hope the government will not put the court into this difficult position.”
The prohibition on face coverings was introduced by embattled city leader Carrie Lam Cheng Yuet-ngor under the ERO last October, at the height of civil unrest that often descended into violence.
But the timing of Thursday’s ruling has placed the government in an awkward position, as the coronavirus pandemic has made wearing a mask ubiquitous for nearly all city residents.
The three justices from the appeal court said in their unanimous judgment that the ban was “intended to operate as an emergency measure” and presumably temporary.
“Once the public danger subsides and the overall threat to law and order disappears, it is expected the Chief Executive in Council would make an order under section 2(3) of the ERO to repeal the same,” the judges said.
Hong Kong mask ban legal when aimed at unauthorised protests: Court of Appeal
Members of the pro-democracy camp who initiated the lawsuit challenging the ban have vowed to take the matter to the top court, while legal sector lawmaker Dennis Kwok has urged the government to abolish the law once and for all.
Last October, the chief executive hinted that when the violence subsided, she would issue an order to repeal it.
“There will be voices expressed, when there is no public danger under threat, ‘why is the regulation still there’?” Lam said at the time.
But the two Exco members on Friday said it was not yet time to conclude the public danger no longer existed.
“The police have been discovering firearms, explosives and ammunition, so it cannot ruled out that, when the epidemic is over, the violent protests will return,” Ip said.
She also noted several regulations introduced by the British colonial government during the 1967 riots were only repealed more than a year later, while some were incorporated into local law.
Some from the pro-establishment camp, including Ip and his Democratic Alliance for the Betterment and Progress of Hong Kong party, have suggested the mask ban could be kept in the long run.
Government starts appeal against court ruling mask ban unconstitutional
But Chen, the law scholar, said if the government intended to ban face coverings after the period of unrest was past, it should do so via normal legislative methods.
Tam Yiu-chung, the city’s delegate to China’s legislature, the National People’s Congress Standing Committee (NPCSC), noted the anti-mask law was no longer being enforced, but stopped short of addressing whether it should be abolished.
“The mask ban issue is over,” he said. “Currently, there’s no protest, [though] some occasionally happen. It’s a bit funny to talk about the anti-mask ban when everyone is wearing [masks].”
The Security Bureau on Thursday refused to comment on when or if the emergency measure would be repealed, saying only that the government was monitoring the situation. The Chief Executive’s Office said it had nothing further to add.
Beijing previously attacked the Court of First Instance’s November ruling against the ban, saying the power to declare a law incompatible with the Basic Law, the city’s mini-constitution, rests with the NPCSC. As of Friday, it had not publicly commented on the Court of Appeal ruling.
Chen said Hong Kong courts had, since the handover, conducted constitutional reviews in a “significant number of cases”, where the central government had approached the issue cautiously.
He added that while the appeal court had cited the practice of former colonial governors in affirming the executive’s power to issue emergency measures, the law must still cater to society’s changing needs.
“It is possible that a practice considered acceptable and lawful in colonial times might not pass judicial scrutiny today,” Chen said.
