Hong Kong Law & Crime Politics & Protest

Hong Kong court postpones officially declaring mask ban unconstitutional

A Hong Kong court on Friday said it will wait seven days before declaring an anti-mask law to be unconstitutional because the case may go to the Court of Appeal soon.

On Monday, the Court of First Instance ruled that the government’s ban on face-covering at protests went “further than necessary” in restricting human rights. It also held that the colonial-era Emergency Regulations Ordinance (ERO) – invoked by Chief Executive Carrie Lam to enact the mask ban – was partially unconstitutional.

October 18 anti-mask human chain causeway bay

File photo: Kevin Cheng/United Social Press.

At the time, judges Godfrey Lam and Anderson Chow did not immediately declare the relevant sections of the law to be invalid. As a matter of technicality, a written court declaration is needed to strike down any law in Hong Kong.

The judges on Friday further delayed officially declaring the law unconstitutional until November 29.

“In view of the great public importance of the issues raised in this case, and the highly exceptional circumstances that Hong Kong is currently facing, we consider it right that we should grant a short interim suspension order so that the respondents may have an opportunity to apply to the Court of Appeal… for such interim relief,” the court said.

During the 7-day delay period, the mask ban would remain invalid, despite the lack of an official declaration from the court.

high court

File photo: Holmes Chan/HKFP.

Hong Kong authorities previously said in response to the ruling that they would stop enforcing the anti-mask law, known formally as the Prohibition on Face Covering Regulation (PFCR).

Over the past week, the face-covering ban has prompted yet another collision between Hong Kong and mainland Chinese legal systems, with Beijing claiming that it had the final say over a law’s constitutionality.

Jian Tiewei, spokesperson for the Legislative Affairs Commission (LAC) of the National People’s Congress Standing Committee (NPCSC) said on Tuesday: “Only the National People’s Congress has the power to judge and decide whether Hong Kong SAR laws comply with the Basic Law. Any other authority has no right to make judgments and decisions.”

Yang Guang, spokesperson of the State Council’s Hong Kong and Macau Affairs Office, said the court’s decision would have a “serious and negative sociopolitical impact by displaying a blatant challenge to the NPCSC’s authority and the governing power of the chief executive.”

beijing statement

Yang Guang. Photo: iCable screenshot.

Two days after the court found the mask ban unconstitutional, the Hong Kong government applied to temporarily suspend its ruling from taking effect pending the result of an appeal.

On Friday, pro-democracy lawmaker Dennis Kwok said he was disappointed by the court’s postponing the declaration, saying that an unconstitutional law should not be enforced at all.

He added that the 24 pro-democracy candidates, who filed the initial lawsuit to challenge the mask ban, will continue to fight the government in court if it decided to appeal the case further.

As of November 14, a total of 632 people had been arrested for contravening the mask ban, though nearly all of them were arrested for non-mask-related offences as well. Sixty-one of them were charged under the mask ban, but no one has been convicted yet.


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Hong Kong court postpones officially declaring mask ban unconstitutional