Hong Kong: High Court finds Carrie Lam’s emergency law of 'mask ban', unconstitutional

A Hong Kong Court has found that the Local Government’s controversial mask ban unconstitutional, delivering a fresh legal blow to an administration struggling to contain increasingly violent protests.

The High Court ruling came Monday in response to a challenge filed by the city’s opposition lawmakers. Chief Executive Carrie Lam imposed the ban last month by invoking colonial-era emergency powers for the first time in more than a half-century.

“The Government should fully respect the decision,” Alvin Yeung, an opposition lawmaker, said of the court’s ruling.

Lam’s move on Oct. 4 to invoke the Emergency Regulations Ordinance, which was last used during riots in 1967, sparked protesters’ fury and prompted a fresh wave of demonstrations. The protests were among the most violent seen at that point, resulting in the firebombing of a police officer, the shooting of a teenage protester and citywide train disruptions.

The ERO permits the government to grant itself sweeping new powers, including the ability to censor publications and the internet, and arbitrarily detain people and search properties. Monday’s ruling raises questions about how far the government can go under that statute.

“The court seems to be putting some real limits” on the ERO, said Anthony Dapiran, a Hong Kong-based lawyer and the author of “City of Protest: A Recent History of Dissent in Hong Kong.” “But remember: This decision will surely be appealed by the government.”

The Security Department declined to comment, promising a statement later Monday. Undersecretary for Security Sonny Lo separately told lawmakers that the government needed time to study the judgment. A Justice Department lawyer added in a brief statement to a subcommittee set up to discuss the mask ban that the government “generally” doesn’t enforce measures deemed unconstitutional.

Some protesters have deliberately flouted the ban by wearing masks and costumes at rallies. Police have arrested hundreds over alleged violations of the regulation, which called for jail sentences of up to one year for violators.

Judges Godfrey Lam and Anderson Chow said the measure “exceeds what is reasonably necessary to achieve the aim of law enforcement, investigation and prosecution of violent protesters even in the prevailing turbulent circumstances in Hong Kong, and that it fails to strike a reasonable balance between the societal benefits promoted and the inroads made into the protected rights.”

They also ruled the ban was disproportionate due to its “remarkable width” and that there “is practically no limit on the circumstances in which the power under that section can be exercised by a police officer.”

Yeung, the lawmaker, said opposition politicians warned the chief executive not to invoke powers under the ERO because they were unconstitutional. He said the situation reminded him of the government’s attempt to pass the extradition bill that first prompted the historic wave of demonstrations in June.

“Carrie Lam failed to learn from her mistakes,” he said. “They repeated the same mistakes made in the extradition saga - arrogantly conducted, no meaningful consultation, and ignoring all sensible voices. Now the court has proven that very point.”

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