Hong Kong pro-democracy lawmakers have vowed to take the decision to partially overturn a ban on wearing masks at unlawful assemblies to the Court of Final Appeal.

Chief Executive Carrie Lam invoked the Emergency Regulations Ordinance to enact the controversial anti-mask law last October in a bid to quell citywide unrest.

Photo: Aidan Marzo/HKFP.

The High Court ruled the anti-mask law unconstitutional last November. But the Court of Appeal on Thursday declared the government had the right to invoke the colonial-era emergency legislation, though it maintained that it would be unconstitutional to enforce the ban at authorised assemblies.

The latest ruling came amid a surge in the use protective face masks in Hong Kong in response to the coronavirus outbreak, which has infected over 970 people and led to four deaths in the city. More than 1,600,000 cases of infection and 95,600 deaths from Covid-19 have been recorded worldwide.

‘Ridiculous’

Speaking on behalf of the pro-democracy camp, Civic Party legislator Dennis Kwok said they were let down by the ruling and would take the case to the Court of Final Appeal.

Photo: GovHk.

Kwok said he was most disappointed by the judges’ lack of understanding of the situation in Hong Kong and placing too much trust in the government and police.

“[The judges] can’t see that the [government and police] have no self-restraint. It’s almost as if they have not seen the behaviour of the police in the past 10 months – their abuse of power, excessive use of force and arbitrary arrests and prosecution,” he said.

Kwok added that while facing the threat of the virus, it would be “ridiculous” for Hong Kong to have a law banning mask wearing.

“[The law] creates a lot of unnecessary fear and confusion. The easiest solution is for Carrie Lam to scrap the law,” he said.

Civic Party’s Dennis Kwok. Photo: inmediahk.net.

Democratic Party lawmaker Ted Hui described the ruling as “dangerous.” He said it would enable the government to utilise emergency powers to create laws that infringe upon civil liberties and human rights.

“This is a grey area created by the government, making it difficult for citizens to comply. The police could change the rules as they want, and there is no protection for the basic rights of the public,” Hui wrote on Facebook.

Pro-democracy activist Nathan Law of Demosisto raised concerns over the lack of clear definition of public order disruption, as well as the Chief Executive’s use of discretion while invoking emergency laws.

In a Facebook post, he cited the ruling which said: “As the head of the HKSAR, the Chief Executive, with the advice of the Executive Council, is evidently the only suitable person to make the call.”

Photo: May James/HKFP.

“The Chief Executive is not elected, but rather appointed by the Communist Party of China. This kind of ‘public order disruption’ definition would certainly be used as a tool to suppress the opposition,” Law wrote.

‘Served justice’

Meanwhile, pro-Beijing lawmakers welcomed the ruling. Holden Chow of the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) said the ruling had “served justice to the government” and provided a clear legal basis for the government to “handle violence instigated by radical protesters.”

“The opposition parties had accused the ban as unconstitutional, but the ruling has refuted their ridiculous allegations,” Chow said.

Another DAB legislator, Horace Cheung, said the ruling had affirmed that even though the emergency legislation came from the colonial era, it was relevant and applicable to the present situation.

Holden Chow (left) Horace Cheung (right) of the Democratic Alliance for the Betterment and Progress of Hong Kong. Photo: RTHK screenshot.

“We hope citizens would not be misled by the opposition parties to think that the emergency ordinance is not applicable, and try to break the law,” Cheung said.

Executive Council member and Beijing-friendly lawmaker Priscilla Leung said even if the mask ban was taken to the Court of Final Appeal, she believed the court would still rule in the government’s favour.

“The ruling concerns constitutional issues about the Basic Law. It is not about to what degree the freedom of assembly is being restricted,” Leung said. “[I] believe if the applicants decide to appeal, the government can still stand it ground.”

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Kelly Ho

Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.