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Wednesday, April 15, 2020, 11:26
Judgment on mask ban strengthens rule of law
By Tony Kwok
Wednesday, April 15, 2020, 11:26 By Tony Kwok

The Court of Appeal judgment on Thursday, which ruled constitutional a government ban on wearing face masks at unauthorized public assemblies, should be welcomed by all as it strengthens Hong Kong’s rule of law. But its more significant finding is overturning the High Court judgment on Nov 18 by Justices Anderson Chow Ka-ming and Godfrey Lam Wan-ho that the Emergency Regulations Ordinance violated the Basic Law, and that it was unconstitutional for the government to introduce any emergency regulations.

The reasons given by the Court of Appeal are credible and legitimate, and in conformity with the rule of law and common sense. Firstly, the Emergency Regulation Ordinance was already part of Hong Kong law before the reunification and was not repealed after 1997. Secondly, it must be an integral option for any government in tackling emergencies and any public threat; otherwise, there would be a significant gap in the law. Thirdly, it does not impinge on the Legislative Council’s constitutional power and duty of oversight (as the two High Court judges had claimed), since any emergency regulation promulgated by the chief executive and the Executive Council will be subject to review and can be overturned by LegCo if justifiable. Furthermore, the court also has the power to review such emergency regulations. Therefore, there are more than enough checks and balances restraining any abuses of power by the executive branch.

For any ordinary citizen, even one without a legal background, the Court of Appeal’s judgment is simply common sense. How the two High Court judges could have made such an elementary error over such an important issue is baffling. That is why it has stirred a theory that the two judges might be influenced by political bias. If so, this is truly a worrying development that would have serious implications for our judiciary with its world renown as one of the most respected among its peers. In practical terms, it would hamstring the SAR government’s ability to deal with the coronavirus crisis. As the Court of Appeal rightly pointed out, without the emergency regulation, “the chief executive would be deprived of the power to respond swiftly, flexibly and sufficiently even though the circumstances clearly warrant it and it would be in the public interest to do so.” And this is exactly what had happened in the last three months. For example, the recent face mask shortage forced many elderly people to line up overnight in cold weather for just a few masks. The government could have used the emergency ordinance to impose draconian regulations to control the sale and distribution of masks as some of our neighboring countries have done. It could have even imposed curfews to restrict people’s movements, like Bangkok. Sadly, that was not possible as the government’s hands were tied by the two High Court judges.

I believe the judgment paves the way for more-effective management of public protests. ... the protest organizers should be warned that if the protest becomes violent, the police will promptly declare it unauthorized and the anti-mask law will be immediately enforced

The Court of Appeal also rightly ruled that the anti-mask law that bans face coverings at unauthorized assemblies is constitutional. The clarification should strengthen the police’s power of enforcement. From now on, those “blackshirts’’ illegally occupying the streets can be arrested under the mask offense even before they launch their usual wanton destruction of private businesses and public facilities. As the offense is straightforward and easy to prove, it should serve as a strong deterrent against these anarchists.

The only shortcoming in the new judgment is that it permits protesters to wear masks at authorized assemblies. This unfortunate loophole could yet subject Hong Kong to international ridicule following international broadcasts of large numbers of armed protesters in full riot gear marching with anti-government banners. This might also demonstrate the HKSAR government’s extraordinary tolerance of dissent, certainly far more than most leading democracies that have similar anti-mask laws, but where this clearly would not be allowed to take place.  

The judgment, though imperfect, is acceptable since the police still have the power to disperse a gathering after declaring it unauthorized if it is hijacked by violent elements. The anti-mask law would then apply.

I believe the judgment paves the way for more-effective management of public protests. Firstly, the police should make it absolutely clear beforehand that protest organizers have a responsibility to ensure there should be no deviation from the agreed route or risk having the march declared unauthorized, with the anti-mask law automatically applying.

Similarly, the protest organizers should be warned that if the protest becomes violent, the police will promptly declare it unauthorized and the anti-mask law will be immediately enforced.

For proper protest management, it is essential that a reliable communication channel is established between police and protest organizers. Apart from using the mobile phone network, the government should designate an authorized route for protest marches. For example, on Hong Kong Island, protesters can march from Victoria Park to Chater Garden. To help monitor the march, all lampposts along the route should be fitted with CCTV cameras and loudspeakers, up high enough to prevent vandalism. The loudspeakers will be particularly useful for police to relay messages or warnings to protesters, instead of using handheld bullhorns.

There is little doubt that the violent protests will resume once we have the coronavirus under control. The opposition parties will again exploit young people’s idealism and channel their passion into anti-government actions to boost their electoral success prospects in September. This was the same strategy they successfully used in the recent District Council elections. The first such protest is likely to take place on July 1, the reunification anniversary. The police should be prepared to make full use of the anti-mask law.

The High Court judgment was handed down on Nov 18 and it took the Court of Appeal five months to rectify a crucial legal ambiguity. Such a delay and the ensuing legal vacuum are not in the public interest. So far, more than 7,000 protesters have been arrested and only about 100 of them have had judicial process. For some years now, such delays have proved to be our judiciary’s biggest challenge. As is often said: “Justice delayed is justice denied.” Let us hope the incoming new chief justice, Andrew Cheung Kui-nung, will prioritize speeding up the judicial process when he takes over in January.

The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He is a former head of operations and deputy commissioner of the ICAC, and currently an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily. 


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