Henry Litton

Opinion | Why challengers of Hong Kong’s anti-mask law have no case

By declaring the mask ban unconstitutional, the High Court judges arrogated to themselves the power to determine Hong Kong’s ‘constitutional order’

However, soon after the handover, all laws, including the Emergency Regulations Ordinance, had been scrutinised to ensure they did not contravene the Basic Law

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People wearing masks protest against the government’s Prohibition on Face Covering Regulation in Lan Kwai Fong, Central, on October 31, 2019. Photo: Sam Tsang

Henry Litton

Published: 6:00am, 20 Jan 2020Updated: 6:21am, 20 Jan 2020

On November 18, 2019, two High Court judges delivered a judgment striking down the Prohibition on Face Covering Regulation. The principal ground was that the enabling statute – the Emergency Regulations Ordinance – under which Hong Kong’s chief executive had issued that regulation was unconstitutional, being in contravention of the Basic Law.

The judgment evoked an immediate negative response from the Legislative Affairs Commission of the Standing Committee of the National People’s Congress.

Para 2(1) of the Emergency Regulations Ordinance states: “On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulation whatsoever which he may consider desirable in the public interest.”

The Prohibition on Face Covering Regulation was enacted in October, at a time of grave public danger. As the judges said, Hong Kong was then in a “dire situation”. Not only were violent acts by masked men taking place in the streets, public facilities immobilised on a massive scale and the general population cowed, the Legislative Council chamber had been broken into and vandalised and Legco itself had ceased to function as a source of legitimate power.

It is against this background that the court considered the applications for leave to bring proceedings for judicial review. The court, consisting of two High Court judges, gave its judgment on November 18.

The judgment is over 100 pages long. Four senior counsel and numerous junior barristers attended the hearing, with arguments and citation of cases from all over the world. The court’s approach to the matter is startling.