Court rejects govt bid to bring back mask ban - RTHK
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Court rejects govt bid to bring back mask ban

2019-11-22 HKT 18:09
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  • The police had stopped enforcing the anti-mask law after it was ruled unconstitutional on Monday. File photo: AFP
    The police had stopped enforcing the anti-mask law after it was ruled unconstitutional on Monday. File photo: AFP
The High Court on Friday rejected government requests to suspend its ruling that the anti-mask law is unconstitutional, or allow the police to continue enforcing the ban until the appeals process is completed, agreeing only on a seven-day "interim suspension" which gives the administration some time to ask the Court of Appeal to come to a different decision.

This essentially hits pause on the legal process of declaring the law to be 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", the court said.

While the police are technically allowed to enforce the mask ban for the week "without the risk of being in contempt of court or criticised for having flouted a court's order", it does not protect the police from legal liability.

Hong Kong University legal scholar Eric Cheung explained that unless the Court of Appeal ultimately overturns the High Court ruling, any arrest made during this time would be an unlawful arrest, “and the police will also be liable civilly for damages.”

“If the police insist on enforcing the law during these seven days, it is gambling on the basis that later, the appellate court will overturn the High Court’s ruling”, Cheung said.

In their ruling, judges Godfrey Lam and Anderson Chow noted that by November 14, a total of 632 people had been arrested under the anti-mask law, which had been imposed by Chief Executive Carrie Lam on October 5.

Lam and Chow said "reckless and irresponsible attacks had been carried out by persons wearing facial coverings before our judgement was handed down, and have continued unabated since."

They added that there is no evidence that their judgement on Monday had affected the frequency of unlawful acts or the degree of violence used by what they called "so-called protesters".

The judges also said they had seen no evidence to show that postponing their ruling would bring about any substantial relief to the public danger currently faced by Hong Kong.

"It seems to us a very strong thing to say that even though a regulation creating an offence has been held invalid, the government should be allowed to continue to make arrests and charge the arrestees with offences based on it."

During a hearing on Thursday, the lawyer for two dozen pan-democrats – who brought the judicial review over the mask ban – had warned that allowing the police to enforce a law that had been ruled unconstitutional would be a threat to the city's rule of law.

The government's suspension request came after the legislative affairs commission of the National People's Congress Standing Committee controversially claimed that Hong Kong's courts do not have the authority to decide whether the SAR's laws are constitutional or not and this power rests solely with the NPCSC.

The police had stopped enforcing the ban following Monday's High Court judgement.

Last updated: 2019-11-22 HKT 23:14