Top Hong Kong Court Upholds 2019 Mask Ban

Hong Kong’s highest court has upheld a ban on mask wearing imposed by the government at the height of the 2019 protests, a major blow for the city’s pro-democracy movement. The ban, introduced using a colonial era law known as the Emergency Regulations Ordinance (ERO), was issued by Chief Executive Carrie Lam in an effort to “deter violent and illegal behavior” in October 2019. The Court of Final Appeal’s decision overturned rulings by lower courts that had constrained the scope of the law, finding it to be applicable to all public gatherings. The South China Morning Post’s Chris Lau reported details of the ruling, on which the judges were unanimous in agreement:

The five justices ruled unanimously that the ban was appropriate as it was in line with, and no more than, what the government required to deter peaceful protests from turning violent.

“The interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked lawbreakers who, with their identities concealed, were seemingly free to act with impunity,” they said in a 71-page judgment.

A string of former lawmakers brought the legal challenge, arguing the government’s move to cite the Emergency Regulations Ordinance for the enactment of the ban was an attempt to escape legislative scrutiny, but the court disagreed.

It said the use of such power was still subject to judicial challenges, the legislature’s negative vetting mechanism and the protection afforded in the Basic Law, the city’s mini constitution. [Source]

The final ruling by the court came after more than a year of litigation surrounding the chief executive’s use of emergency powers. Prior to 2019, the ERO had not been used in more than 50 years. Since it was first invoked to ban masks last year, the chief executive has also used it to postpone legislative elections originally scheduled for September 2020. Paradoxically, the court’s decision means that Hong Kong now has both a mask ban for public gatherings and mask wearing requirements due to the COVID-19 pandemic. Journalists noted the implications of these dual requirements for future demonstrations in the city:

Particularly noteworthy about Monday’s judgement was its representation of last years events, which surprised some observers. As Hong Kongers have struggled to come to terms with the 2019 protests, how key events of last year are portrayed has become highly contentious. The Washington Post’s Shibani Mahtani reported on the striking language of the court judgement and its potential impact on shaping future narratives of the 2019 protests:

“The interests of Hong Kong as a whole should be taken into account, since the rule of law itself was being undermined by the actions of masked lawbreakers,” the judgment read, adding that with their faces covered, protesters “were seemingly free to act with impunity.”

[…] The court judgment had the effect of backing the government’s narrative of the protests last year, painting the demonstrators as out-of-control mobs that had to be subdued by all means.

“The judgment privileges one particular narrative of the events of 2019 — that of violent, out-of-control lawlessness — over any other,” said Antony Dapiran, a lawyer who wrote a recent book about Hong Kong’s protests. “Without any additional context, it comes to a conclusion which supports the government’s response.” [Source]

Despite calls from members across the political spectrum, the government has resisted a comprehensive independent investigation into the 2019 protests, which was one of protestors’ five demands last year. In its absence, government sources and the Hong Kong police have been accused of “rewriting history” through the inaccurate and false portrayal of pivotal events such as the 721 Yuen Long triad attack on subway commuters. Other incidents, such as the separate unexplained deaths of two protestors, have provoked wild conspiracy theories and intense public interest in coroners’ inquests into their deaths.

In a second legal decision on Monday that underscored the challenge of judging last year’s protest events in the absence of an independent investigation, a lower court rejected a legal challenge by the Hong Kong Journalists’ Association against the police over the “ill treatment” of journalists during the protests last year. Hong Kong Free Press’ Candice Chow reported on the details of that case:

The association challenged against the Hong Kong police over their pattern of “deliberately aggressive and obstructive police tactics as well as unnecessary and excessive force.”

The HKJA submitted 13 accounts from affected journalists to the court for consideration, urging it declare that the police actions violated the Basic Law and the Hong Kong Bill of Rights.

Judge Anderson Chow ruled that “the proper course” for journalists who felt that they were improperly treated would be legal action against the Commissioner of the force, or the government.

Chow added that the judgement did not mean that the court had ruled on whether the police acted wrongfully or not, and it could only be determined after a full investigation. [Source]

Controversy over the factual basis of events in the 2019 protests underscore the intense challenge faced by Hong Kong’s judges at a time when the judiciary is under substantial political pressure. See also prior coverage of calls by senior Chinese officials for “judicial reform” amid Beijing’s tightening grasp over the three branches of government. Under the Hong Kong National Security Law the Chief Executive is empowered to designate a select list of judges as “national security judges,” signaling Beijing’s distrust in the political loyalty of the city’s judges.

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