The Hong Kong government’s decision to use a colonial-era emergency law to unilaterally ban face masks at the height of protests last year was both “proportionate and necessary”, the city’s top court ruled Monday.
The ruling is a blow for pro-democracy supporters who argued the ban was unconstitutional and violated basic liberties and had been hoping the Court of Final Appeal would side with a lower court and overturn the order.
It also confirms that Hong Kong’s chief executive — a pro-Beijing appointee — has the power to enact any law in a time of public emergency without needing the approval of the city’s partially elected legislature.
Five judges on the Court of Final Appeal unanimously ruled that the ban on masks in October, enacted when anti-government protests were raging on the streets of Hong Kong, was proportionate and necessary.
The 71 page judgment also detailed the actions of the protesters, highlighting the violence, “unlawfulness” and “vandalism” prevalent in the city last year, using those reasons to uphold the ban on masks.
“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.
It added that with their faces covered, protesters “were seemingly free to act with impunity.”
The judgment had the effect of backing the government’s narrative of the protests last year, depicting the demonstrations as out-of-control mobs that had to be reined in.
Unrest broke out in the city in June last year, sparked by a proposal to allow extraditions from the territory to the Chinese mainland.
The protests spiralled into a rebuke of the Chinese Communist Party and its grip on the city. The mask ban, when announced in October, fuelled more mass protests and another wave of violent anger on the streets.
In late June, Beijing passed a national security law in Hong Kong, its solution to ending anger on the streets by outlawing dissent. Under that law, broadly worded crimes such as “secession” and “foreign interference” can be punished by up to life in prison.
In November, Hong Kong’s Court of First Instance overturned the ban, ruling that it and the emergency ordinance were unconstitutional, prompting an outcry from Beijing’s representatives in the city.
The legal tussle that followed came at a particularly awkward time, when the government was simultaneously making mask-wearing mandatory because of the novel coronavirus, which was first detected here in January.
The appellate court ruled earlier this year that the ban was partly unconstitutional, and that masks should be allowed at legal public gatherings.
The ruling comes at a time when the courts are under intense scrutiny and are considered the last protection against Beijing’s efforts to overhaul the territory’s institutions.
In November, British Foreign Secretary Dominic Raab said he would consider pulling British judges from the Court of Final Appeal, the same court that handed down Monday’s ruling. (Source: Independent UK)