HONG KONG: A ruling on Monday by Hong Kong’s High Court that the anti-mask law enforced by the city government to quell months-long radical protests was “unconstitutional” will only complicate the already tense situation in ignorance of how severe violence has spread in Hong Kong, legal experts said.
Hong Kong’s High Court on Monday said the ban introduced under emergency legislation was “incompatible” with the Basic Law.
The Hong Kong police said the anti-mask law was helpful in deterring protesters, but will suspend enforcing the law in accordance with the High Court ruling.
Hong Kong Secretary for Security John Lee Ka-chiu said the judicial process has not come to an end yet, and that the decision is not the end of the judicial process.
There will be another hearing. It’s not appropriate to make any comments at this stage, Lee said at Monday’s press conference.
The High Court’s decision shocked many people in Hong Kong, including those in law and police circles.
Tang Fei, a member of the Council of Chinese Association of Hong Kong and Macao Studies, said, “This is a highly astonishing judgment, with ignorance of how severe violence has spread in Hong Kong.”
“The judicial bodies have not helped in ending violence and rioting, but instead played an active role in inciting rioters wearing masks to commit crimes,” he added.
Hong Kong lawmaker Junius Ho suggested the Standing Committee of the National People’s Congress (NPC) issue an interpretation of the anti-mask law and the Hong Kong government should appeal the High Court’s ruling that the anti-mask law is “unconstitutional.”
To appeal the ruling is necessary, but it will take a long time for the government to convince the relevant judges, Ho said. “The case would likely need to go to the Court of Final Appeal, which would take at least 2-3 years and not serve the urgent need of stopping the violence and chaos in the city, so the interpretation from the Standing Committee of the NPC is essential.”
Lawrence Ma, a Hong Kong barrister and chairman of the Hong Kong Legal Exchange Foundation, said wearing a mask during any assembly, no matter how unlawful or unauthorized, will be fine after Monday’s judgment.
The court cited the principle of separation of powers that there can be no conferral of legislative power on the executive.
This 1922 Emergency Regulation Ordinance purported to give the executive a wide power to make laws on occasions of public danger, was a power too wide and such power was akin to legislative power, and thus “unconstitutional,” he explained.
Ma warned the worst consequence is that “the government can no longer make emergency regulations on grounds of public danger, but only in emergencies.”
“If the government insists on its notion of an executive-led principle of government, instead of separation of powers, it should appeal,” Ma added.
Tang King-shing, a former commissioner of the Hong Kong Police Force, said the court’s decision is “disappointing.”
He noted that the mask ban has made it easier for police officers to extract evidence during law enforcement and deterred some protesters.