Hong Kong Court Of Appeal: Face Mask Ban Partially Upheld

On April 9, the Hong Kong Court of Appeal partially overturned the High Court’s October ruling that the blanket ban on face masks is unconstitutional under Basic Law (the island’s “mini-constitution”). More specifically, the Court found the ban constitutionally sound with regard to unapproved protests. The ruling comes after widespread allegations of police brutality against protestors and journalists. Allegations include indiscriminate use of teargas, which may cause long-term health problems. Even uninvolved Hong-Kongers have been exposed to harmful teargas residue, according to the Free Hong Kong Press. The mask ban prohibits the gas masks that protestors wore as a protective measure, as well as the face masks many now wear due to the COVID-19 pandemic. Pro-democracy legislators will likely take the case to the Court of Final Appeal.

The Court of Appeal’s ruling has been widely criticized by pro-democracy politicians and activists, who maintain that the ban is unconstitutional. Moreover, they argue that—particularly during the COVID-19 pandemic—the ban puts the general public at risk due to its vague nature. Democratic legislator Ted Hui denounced the ruling in a Facebook post, saying, “This is a gray area…making it difficult for citizens to comply. The police could change the rules as they want, and there is no protection for the basic rights of the public.”

Despite mounting pressure to suspend the mask ban, government advisors say the ban is still necessary—regardless of the COVID-19 outbreak. On April 9th, The South China Morning Post (SCMP) reported that Former Security Minister Regina Ip said “the situation remains highly volatile and unsettled…We may have to wait until the epidemic is over and see whether there continue to be protests.” On April 10th, according to the SCMP, a police spokesman assured the public that the force would “handle incidents flexibly with regard to the actual circumstances.”

However, trust in the police force is low, as the force has faced substantial abuse allegations since the protests erupted. Per Ming Pao, the police force has fired 16,000 tear gas canisters at an average of over 90 per day; and more than 10,000 rubber bullets. Bloomberg reports that up to 88% of Hong Kong’s population has been exposed to tear gas. Further, a survey of exposed journalists found that 96.2% had respiratory problems (from trouble breathing to coughing up blood) and
72.6% had some form of rash—side effects Bloomberg says are beyond that of normal exposure.

Watchdog groups, such as the Civil Rights Observer and Human Rights Watch, have condemned police brutality against Hong Kong’s protestors. Pro-democracy officials say the mask ban—which the Appeal Court largely upheld—opens the door to further abuse of power. Vowing to take the case to the Court of Final Appeal, Civic Party legislator Dennis Kwok said, “It’s almost as if [the judges] have not seen the behaviour of the police in the past 10 months—their abuse of power, excessive use of force and arbitrary arrests and prosecution.”

In fact, pro-democracy activists now question the independence of Hong Kong’s judiciary itself. The Court of Appeal’s reversal on the mask ban came after Beijing’s reported anger at the lower court’s initial ruling. Beijing maintains that only China’s permanent legislative body, the National People’s Congress Standing Committee (NPCSC), has authority over Hong Kong’s Basic Law. Three judges who spoke to Reuters confided that they fear the NPCSC will use their authority to undermine city courts. In 2016, for example, the NPCSC blocked pro-democracy legislators from taking office.

As a Special Administrative Region (SAR), Hong Kong enjoys its own system of government until 2047, under the “One China, Two Systems” policy. The relationship between Mainland China and Hong Kong has always been delicate. However, tensions have increased dramatically in recent years as Beijing seeks to aggressively extend its authority over Hong Kong. While Hong Kong enjoys an amount of freedom and democracy, many high-ranking officials are unelected and pro-Beijing. Rather than influencing politicians through elections, then, Hong-Kongers have historically swayed high-ranking, unelected public officials through well-attended protest movements.

Protests are, clearly, not a viable outlet at this time—but high-ranking officials still refuse to end the mask ban entirely. The city faces a second wave of the coronavirus, and the vague nature of the ban risks public health. In the unlikely event that protests resume in the near future, the mask ban will only further inflame tensions between Hong-Kongers and Beijing.

Alexa Grunow