HK anti-mask law excessive and unconstitutional, court rules

November 18, 2019 16:00
The Hong Kong government's move to impose a ban on face masks during public assemblies has proved a resounding failure. File photo: Reuters

Hong Kong’s High Court ruled on Monday that the government's move last month to introduce an anti-mask law using colonial-era emergency powers was unconstitutional.

The ban on face coverings was excessive and "incompatible with the Basic Law", Hong Kong's mini-constitution, the court said in a ruling after judicial reviews were sought by pro-democracy lawmakers and a former legislator.

The emergency law was unconstitutional as the restrictions it imposes on people’s fundamental rights are more than what is necessary, the court said.

"We should also make it clear that it is not our judgment that [an] 'anti-mask' law is generally objectionable or unconstitutional. Its validity must, however, depend on the details of the legislation and the particular societal aims sought to be pursued by the measure being brought in through the legislation," judges Godfrey Lam and Anderson Chow said, according to public broadcaster RTHK.

"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, and that it fails to strike a reasonable balance between the societal benefits promoted and the inroads made into the protected rights," they said.

Under the new law announced by Hong Kong's leader Carrie Lam on October 4, wearing a mask at any kind of assembly was made illegal, with offenders risking a one-year prison term and a fine of HK$25,000.

The police were also given the power to order people to take off a mask at any time, in any location, with the penalty for refusing to do this set at six months in prison or a HK$10,000 fine.

Lam said the move was necessary because protest-related violence was escalating and "radical protesters" were "spreading terror".

She had added that a responsible government could not "shy away from existing legislation" or "leave the situation to get worse and worse".

Pro-democracy legislators had framed their legal battle over the mask ban as a fight between the rule of law and authoritarianism, RTHK noted.

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