A masked rioter is standing out among his group in a standoff with police outside the Hong Kong Polytechnic University, Hong Kong, South China, November 17, 2019. (Photo: Xinhua)
A ruling on Monday by Hong Kong's High Court that the anti-mask law enforced by the city government to quell months-long radical protests was "unconstitutional" will only complicate the already tense situation in ignorance of how severe violence has spread in Hong Kong, legal experts said.
Hong Kong's High Court on Monday said that the ban introduced under emergency legislation was "incompatible" with the Basic Law.
The Hong Kong police said the anti-mask law was helpful in deterring protesters but will suspend enforcing the law in accordance with the High Court ruling.
Hong Kong Secretary for Security John Lee Ka-chiu said the judicial process hasn't come to an end yet, and that the decision is not the end of the judicial process.
There will be another hearing. It's not appropriate to make any comments at this stage, Lee said at Monday's press conference.
The High Court's decision shocked many people in Hong Kong, including those in law and police circles.
Tang Fei, a member of the Council of the Chinese Association of Hong Kong and Macao Studies, said, "This is a highly astonishing judgment, with ignorance of how severe violence has spread in Hong Kong."
"The judicial bodies have not helped in ending violence and rioting, but instead played an active role in inciting rioters wearing masks to commit crimes," Tang said.
Hong Kong lawmaker Junius Ho suggested the Standing Committee of the National People's Congress issue an interpretation of the anti-mask law and the HKSAR government should appeal the High Court's ruling that the anti-mask law is "unconstitutional."
To appeal the ruling is necessary, but it will take a long time for the government to convince the relevant judges, Ho said. "The case would likely need to go to The Court of Final Appeal, which would take at least 2-3 years and not serve the urgent need of stopping the violence and chaos in the city, so the interpretation from the Standing Committee of the NPC is essential."
Lawrence Ma, a Hong Kong barrister and chairman of the Hong Kong Legal Exchange Foundation, said wearing a mask during any assembly, no matter how unlawful or unauthorized, will be fine after Monday's judgment.
The court cited the principle of separation of powers that there can be no conferral of legislative power on the executive. This 1922 Emergency Regulation Ordinance purported to give the executive a wide power to make laws on occasions of public danger, was a power too wide and such power was akin to legislative power, and thus "unconstitutional," he explained.
Ma warned the worst consequence is that "the government can no longer make emergency regulations on grounds of public danger, but only in emergencies."
"If the government insists on its notion of an Executive-led principle of government, instead of separation of powers, it should appeal," Ma added.
Tang King-shing, a former commissioner of the Hong Kong Police Force, said the court's decision is "disappointing."
He noted that the mask ban has made it easier for police officers to extract evidence during law enforcement and deterred some protesters.
"However, the ruling will make both frontline police officers and law-abiding citizens cringe, because they will feel that the law does not support them," Tang said.
The court leaves open the question of the "constitutionality" of the British ruled-era Emergency Regulations Ordinance "insofar as it relates to any emergency."
The court also said it will decide on the question of relief at a hearing on Wednesday.
In October, Hong Kong SAR Chief Executive Carrie Lam invoked emergency powers to enact a law banning face masks at illegal public assemblies. The law, which took effect on October 5, was expected to help quell months of anti-government violence and chaos in Hong Kong.
The rule forbids people at illegal assemblies from hiding their identity with masks and related articles. Any person who violates the law faces up to a year in jail and a fine of HK$25,000 ($3,200).
Police statistics show that 367 people had been arrested as of November 7 on suspicion of violating the regulation. Of them, 24 have been brought to court and their cases are ongoing.
Many rioters continue to wear masks while radically protesting and confronting the police.
Li Xiaobing, an expert on Hong Kong, Macao and Taiwan affairs from Nankai University in Tianjin, told the Global Times that the ruling reflects a misunderstanding of the original purpose of the law in emergency situations, as enforcing the anti-mask law by evoking the emergency ordinance gives the power to the chief executive to handle current challenges and restore social order.
Li also labeled Monday's ruling as outdated that came from "the dinosaur era," which completely ignores or is reluctant to acknowledge the chaos Hong Kong currently faces.
"Such a ruling will further complicate social tensions and conveys a political signal that they are supporting the violence with a legal weapon," Li noted.
"This kind of infiltration of politics into the judiciary is paralysis of justice in Hong Kong," Li said. He added that the relevant judges issued the ruling just as the Hong Kong police force took tougher measures.
The timing is intended to worsen the situation and hamper the SAR government's efforts to restore order, Li said.
Albert Wu, a practicing barrister in Hong Kong, told the Global Times that the anti-mask law has reduced the effectiveness of violence, and some radicals have retreated due to fear of legal consequences.
"Without this regulation, it is believed that the current police enforcement would be more difficult and [Hong Kong] society would be more chaotic," Wu said.
"It would certainly embolden riots, which will further weaken the authority of the government and lead to anarchy and terrorism," Wang Dan, a professor at the University of Hong Kong, told the Global Times Monday.