Chen: Court of Appeal’s ruling on mask ban right decision

The Court of Appeal has recently reversed the verdict of the Court of First Instance, handing down a fresh ruling that the Emergency Regulations Ordinance is not unconstitutional and is consistent with the Basic Law.

The Court of Appeal also quashed part of the original verdict, which said the Prohibition on Face Covering Regulation was totally unconstitutional. Unlike the initial verdict, the Court of Appeal ruled that it is against the law for people to wear face masks at unlawful assemblies, but they do have the right to wear them at peaceful gatherings.

Furthermore, the Court of Appeal struck down the provision on police powers that requires people to take their masks off, ruling such powers restrict human rights and exceed the proportionality test.

Police can still ask people to take masks off to reveal their identities by virtue of the Public Order Ordinance and the Police Force Ordinance.

Albert Chen Hung-yee, a Basic Law Committee member and legal academic, is satisfied with the latest ruling. "The ruling by the Court of Appeal is close to what I predicted at the beginning, while the Court of First Instance verdict which said the Emergency Regulations Ordinance was unconstitutional was beyond my expectations," he told China Daily.

"The Court of Appeal upheld the constitutionality of the Emergency Regulations Ordinance. It already existed in the pre-1997 era; it was used several times and proved to be  effective. For the purpose of continuity, it should not lose its effect after the return of Hong Kong to the motherland.

"In addition, every government in the world should have emergency powers to deal with emergencies and public danger. There are different procedures in different countries. In some, the emergency law only becomes effective after it is announced that the country or city is in a state of public danger.

"In Hong Kong, the mask ban was introduced in the form of subsidiary legislation, which requires negative vetting by the Legislative Council. Yet the opposition camp wasted the opportunity to vet the mask ban before the expiry date because of the semi-paralysis of LegCo and its House Committee," Chen said.

"The Court of Appeal ruling has balanced the various considerations," he added.

The government should not further appeal it over just a small part of the verdict after winning a major victory over the constitutionality of the Emergency Regulations Ordinance.

Chen also believes the 24 opposition lawmakers, who brought the lawsuit against the government, have a very slim chance of overturning the Court of Appeal's verdict — even though they may appeal.