Six weeks after Hong Kong leaders enacted an emergency 'mask ban' aimed at quelling ongoing protests, a local court ruled that the measure is unconstitutional - a decision which has forced police to immediately halt anti-mask law enforcement pending the possibility of another legal interpretation by Beijing, according to SCMP.
On Monday, two High Court judges ruled that the ban on face coverings, based on a colonial-era Emergency Regulations Ordinance, was "incompatible with the Basic Law." The judges also found that the new law violated fundamental rights and freedoms.
"The need for an urgent response is no justification for departing from or impugning the constitutional scheme," wrote the judges. "We believe [the ordinance] is not compatible with the constitutional order laid down by the Basic Law."
The judges added that the regulation had imposed "a near-blanket prohibition" of unlawful assemblies, peaceful public meetings and processions where participants could have "perfectly legitimate reasons for not wishing to be identified or seen to be supporting [certain] causes," per SCMP.
The ruling by justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho, in favour of the 25 pan-democrats who applied for judicial review, dealt a blow to the beleaguered government. Police announced they would stop enforcing the ban for now, while prosecutors sought adjournment “to consider the situation”.
Legal experts were divided, some calling the judgment an important recognition of Hong Kong’s constitutional framework, while those on the mainland expressed concerns that the court might have sent the wrong signal to the radical protesters, floating the idea of Beijing interpreting the Basic Law again. -SCMP
Hu Xijin, editor-in-chief for China's state-owned Global Times, said in a tweet that the court ruling was "disappointing," but that "HK police have been enforcing and defending laws, setting an example of abiding by the law for the opposition and radical demonstrators."
High Court ruling anti-mask law unconstitutional is disappointing but HK police immediately announced to suspend enforcing it. HK police have been enforcing and defending laws, setting an example of abiding by the law for the opposition and radical demonstrators.— Hu Xijin 胡锡进 (@HuXijin_GT) November 18, 2019
While the judges ruled the anti-mask law unconstitutional, they recognized that its goal was rationally aimed at eliminating the emboldening effect of wearing masks, and made clear that it was not their judgement that the emergency legislation was objectionable. According to SCMP, "they sided with the applicants in finding the ordinance had effectively given the chief executive “the widest possible” powers to make laws with no limit on the subject matter, whenever desirable in times of public danger that could mean a wide range of scenarios, leaving the legislature with a diminished role."
"The restriction imposed by the [regulation] is ... not to be trivialised as a minor inhibition on mask-wearing during demonstrations but, depending on the context, can have a significant impact on the freedom of expression in peaceful public meetings and processions," they continued.
"We consider it to be clear that the measure adopted ... 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."
As of November 14, approximately 632 people had been arrested for wearing masks, according to SCMP, citing police statistics.
Chief Secretary Matthew Cheung Kin-chung said the government is reviewing the ruling.
"The judgement today is not the end of the judicial process," said Secretary for Security John Lee Ka-chiu.