Political situation
Written by: Zhou Haoyi
2020-12-22 11:01
Last update date: 2020-12-22 11:06
During the anti-regulation campaign last year, the government cited the Emergency Act and enacted the “Prohibition of Masking Regulations” (Prohibition of Masking Act), prohibiting citizens from covering their faces during demonstrations. 25 democrats filed to challenge the constitutionality of the regulations.
The Court of Final Appeal ruled yesterday that the government ultimately won the case. The Emergency Law was not unconstitutional. The ban on face-masking in peaceful assemblies was proportional, that is, no face-masking was allowed in peaceful, legal or illegal assemblies.
Senior Counsel Tang Jiahua, a member of the Executive Council, attended the Hong Kong and Taiwan program "Millenniums" and said that he was not surprised by the court's ruling and emphasized that it is impossible for individual rights to override the interests, safety and order of the entire society. He also said that under the "Prohibition of Face Masking Act", Wearing masks for public health is a reasonable excuse.
Chen Haohuan, the convener of the Chinese People's Front who attended the same show, said that the court's decision was absurd. He believed that there was enough time and space to consult the Legislative Council when the Law on Face Masking was enacted. He also criticized the Law on Face Masking for depriving citizens of the right to march. .
Tang Jiahua pointed out that he was not surprised by the court ruling and emphasized that it is impossible for individual rights to override the interests of society as a whole.
(Data Picture/Photo by Lin Ruoqin)
Tang Jiahua: After a balance test in the final hospital, individual rights cannot override social interests
Tang Jiahua pointed out that it is impossible for individual rights to override the overall social interests. The overall social interests were obviously damaged last year. He believes that it would be illogical if the court ruled that individual rights far exceed social interests after a balance test.
He pointed out that the judgment of the Court of Final Appeal took a long time and listed the atrocities in the anti-amendment cases point by point. After conducting a balance test based on relevant evidence, he believed that individual rights should not override the overall social interests.
He also pointed out that he was surprised that the two justices did not compare their personal rights with the overall social interests at the first trial, and believed that the Court of Final Appeal's approach is worthy of reference by the lower courts.
Regarding the court's ruling that the "Law on Prohibition of Face Masking" applies to peaceful assemblies, Tang believed that it was a reasonable approach, saying that this was made by the court based on the extreme social chaos at the time and the loss of public order protection.
He also pointed out that when the complainant won the first trial, the police had announced the suspension of the implementation of the "Anti-masking Act", and that he was wearing a mask due to the epidemic, which was a reasonable excuse in the "Prohibition of Masking Act".
He said that according to the "Emergency Act", only Chief Executive Carrie Lam can repeal the ordinance, but this time the Court of Final Appeal proposed that the Legislative Council also has the power to repeal it.
He believes that it is necessary to wait for the retreat of the epidemic and depend on whether the society truly returns to calm before deciding whether to abolish the "Prohibition of Face Masking".
Chen Haohuan said that the situation last year was not considered urgent and the "Law on Prohibition of Face Masking" should be submitted to the Legislative Council for discussion.
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Chen Haohuan: "Face Mask Prohibition Law" restricts deprivation of demonstration rights
Chen Haohuan pointed out that the court ruling mentioned that even legal gatherings are restricted by the "Face Masking Law", which prevents the public from speaking out without fear. He took gay marches as an example, or gays who wish to participate in the march to fight for their rights. , Deterred because you can't cover your face.
He also pointed out that under the "Prohibition of Face Masking Act", civil servants, medical staff and justices are not allowed to mask their faces and participate in protests against the "Minato National Security Act," which prevents them from speaking out and considers it a practice that does not respect freedom of speech.
He believes that when a group proposes to the police to hold a procession and assembly, the police can impose conditions, so there is no need to use the broad framework of the "Prohibition of Masking Regulations" to regulate all legal processions and assemblies.
He said that this court ruling shows that the government is "being a big fan" under the "Emergency Law" and can enact any law at will. The police also use their maximum power to enforce the law. Frankly, this makes it difficult for the FDC to protect the safety of citizens, but it will still be in the future. Continue to apply for the parade.
Liang Jiajie mentioned that the "Privilege Law" was born to protect the power of the legislature from interference.
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Liang Jiajie: The verdict "good off the ground" is controversial in consideration of proportionality
Senior Counsel and Chairman of the Civic Party, Leung Ka-kit, said in a telephone interview on the commercial TV program "On a Sunny Day" that the Court of Final Appeal’s ruling on the ban on the masking law was "good off the ground" without taking into account the changes in Hong Kong's social atmosphere.
He said that four elements should be taken into consideration in the judgment, including legitimate aim, rational connection, proportionality and overall fairness, and the most controversial one is proportionality consideration.
He believes that in the past many demonstrations in Hong Kong, such as the July 1st parade in 2003, no one had covered their faces. This made the Court of Final Appeal believe that masking would prevent the police from identifying the parade and would tend to be violent, depriving others of those who wanted to participate in the procession. Civil rights.
However, Liang pointed out that starting in 2014, the social atmosphere has changed. Restricting marchers from wearing masks will make civil servants and employees of Chinese-funded institutions afraid of marching. In addition, as a person who does not cover his face, he will not hesitate when someone is covering his face.
However, he pointed out that the court seemed to have chosen another logic. Some people were unable to participate in the demonstration due to the ban on face masking. "It is not serious to claim on the scales."
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