HK Court of Final Appeal rules in favor of HKSAR gov't on mask ban case

HONG KONG - The Court of Final Appeal of the Hong Kong Special Administrative Region (HKSAR) on Monday ruled in favor of the HKSAR government on the appeal concerning the Emergency Regulations Ordinance (ERO) and the Prohibition on Face Covering Regulation (PFCR).

The Chief Executive in Council exercised the power under the ERO to enact the PFCR in October 2019. The opposition camp then brought a legal challenge against the enactment, questioning the legality and constitutionality of the two regulations.

The Court of First Instance of the High Court ruled in November 2019 that provisions under the ERO that allow the chief executive to enact related regulations are incompatible with the Basic Law and some sections of the PFCR fail to meet the proportionality requirement.

The HKSAR government then lodged an appeal against the ruling. The Court of Appeal of the High Court ruled in April that the enactment by the government is constitutional and the anti-mask law is partially constitutional. Both the government and the opposition camp then appealed to the Court of Final Appeal.

In a statement released on Monday, the HKSAR government said it welcomes the judgment delivered by the court.

The court acknowledged that the very nature of the ERO requires the giving of wide and flexible legislative powers to the executive to deal with emergencies or public dangers quickly and adequately, the government said.

Given the situations of emergency or public danger, it should be left to the judgment of the Chief Executive in Council to make regulations desirable in the public interest, and such legislative powers are necessary in particular when the HKSAR Legislative Council may not be able to function and respond promptly enough or at all to the occasion of emergency or public danger in terms of passing the requisite legislation, the government said when citing the judgment.

Under the PFCR, certain rights are affected but the court emphasized that the rights are not absolute and may be subject to lawful restrictions including the interests of public safety, public order and the protection of the rights and freedoms of others, the government said.

The government said it also fully echoed the views expressed by the court that, when striking a fair balance between the societal and individual interests, the interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked lawbreakers who, with their identities concealed, were seemingly free to act with impunity.