Hong Kong Department of Justice asks High Court to suspend ruling that anti-mask law is unconstitutional – as it scrambles to defend the legislation

Alvin Lum

The Hong Kong justice department has asked the High Court to put a stay on its ruling that the anti-mask law is unconstitutional until it exhausts other means to defend the legislation.

The request comes ahead of an expected appeal by the Department of Justice against the ruling, a legal source told the Post.

The source said the department was also likely to defend the administration’s power to issue emergency measures at times when public safety was considered to be under threat, invoking the sweeping powers of the Emergency Regulation Ordinance.

In a legal document submitted to the court on Tuesday, the Department of Justice requested that the High Court suspend the pronouncement of the anti-mask law, as derived from the Emergency Regulation Ordinance, as being unconstitutional. The court will decide how to execute the ruling on Thursday.

Police chase down a couple wearing masks on October 5, a day after the city's leader outlawed face coverings at protests. Photo: AFP

The government invoked the ordinance – last used in the British colonial era – in early October to ban facial coverings during public assemblies. The penalty for violating the mask ban is one year in jail and a HK$25,000 (US$3,187) fine.

The department’s application came a day after Beijing’s top legislative affairs body slammed the ruling by the Hong Kong High Court that the anti-mask law was unconstitutional, insisting that only the national legislature has the right to decide on issues of constitutionality.

Zang Tiewei, spokesman for the Legislative Affairs Commission of the National People’s Congress Standing Committee (NPCSC), said that only the NPCSC could decide whether Hong Kong laws complied with the Basic Law, the city’s mini-constitution.

He was responding to Monday’s verdict by the High Court. Two presiding High Court judges had ruled that the anti-mask law and the part of the emergency ordinance upon which its power is invoked – that the chief executive has such rights on the grounds of public danger – was unconstitutional.

The justice department has now asked that both measures “remain valid and of legal effect” until a final verdict is reached.

Why Beijing’s angry reaction to Hong Kong High Court’s mask ban decision prompts fears it will overturn ruling

The application from the department, according to a second source, could prevent the immediate dismissal of previous prosecutions under the anti-mask law.

As of November 14, about 632 people had been arrested for violating the mask ban, including at least 20 who were formally charged. The first two cases brought to court under the suspended law were adjourned until January.

Under Hong Kong court procedures, after a law or policy is ruled unconstitutional, the government may apply to suspend the execution of the ruling to allow time for either a legislative amendment or enforcement.

Pro-establishment lawmaker Priscilla Leung Mei-fun said the approach from the justice department was feasible, citing similar precedents.

Simply put, the department’s move is a clear example of ‘heads I win, tails you lose’

Civic Party leader Alvin Yeung Ngok-kiu

But the pro-democracy lawmakers who applied for the judicial review of the ban criticised the government’s move as groundless.

“Simply put, the department’s move is a clear example of ‘heads I win, tails you lose’,” said Civic Party leader Alvin Yeung Ngok-kiu. “This legislation is clearly unconstitutional and should not have any legal effect. So we can’t understand what the basis is for the department to [make the request].”

Human rights lawyer Mark Daly also warned that every moment the anti-mask ban was in place would infringe on Hongkongers’ civil liberties.

“I hope [the prosecutors] are not buying time for another interference in our legal system through an interpretation,” he said. “When applicants win, we often see massive delays by the government in the implementation of the victory.”

Daly was referring to Beijing’s power to interpret the Basic Law, the city’s mini constitution. China’s top legislative affairs body had denounced the ruling, saying only the national legislature had the right to decide on issues of constitutionality.

In a letter to Chief Executive Carrie Lam Cheng Yuet-ngor, the British Bar Human Rights Committee of England and Wales also warned that Beijing’s remark could amount to “an encroachment on the independence of judiciary” and urged the administration to ensure that it upholds the rule of law.

“The exercise of judicial power, by way of judicial review, has formed part of the judicial independence recognised within the Basic Law and should remain free from political interference,” said chairman and Queen’s Counsel Schona Jolly.

Anti-mask law in Hong Kong ruled unconstitutional by High Court

Judges have interpreted and applied the Basic Law in many previous cases, including judicial reviews.

Former chief justice Andrew Li Kwok-nang said Beijing’s remark would be “surprising and alarming” if true.

The Department of Justice has distanced itself from the debate, saying it would not comment on ongoing legal proceedings. It also refused to reveal whether an appeal had been filed.

It has not defended local judges’ power to conduct constitutional review, only saying the Basic Law guarantees judicial independence and judges had agreed to uphold the Basic Law as their judicial oath.

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