The SAR government has scored an overwhelming victory in the lawsuit against the “anti-mask law”, in which the Court of Final Appeal rules the ban on face coverings constitutional, and masked faces not allowed even in lawful assemblies and demonstrations. Reading the court verdict, I wonder if the judges have their heads in the clouds or close their eyes to the reality.

First of all, some flaws. The verdict recites a large number of street clashes and violent scenes that occurred last year, elucidating that though the ban on face coverings enforces a restriction on freedom, it is proportionate. The judges place their trust in the “evidence of crime” put forward by the prosecuting party, inclusive of doubtful news coverage that “some people stopped cars on roads, extorted cell phones and money out of the people in them, and if the latter did not give in, the former would damage the cars”. The narrative was vigorously disseminated by party media, which have proven to be faking news more often than not, without anyone making the accusation named, and the so-called video evidence comes from only one source. Taiwan FactCheck Center has concluded earlier on the video clips concerned are not evidenced, and labeled them as “wrong” message”, following an investigation into them.

Every single word and phrase of a verdict, which is supposed to be definitive, should have reference and be founded on facts. Even though the little blemish mentioned above does not impact on the grounds of argument, to which the defendant side did not lodge an objection, it suggests the judges are not on alert to smearing and libel schemes of party media. Such credulity and insensitivity to real politics is also manifested in an argument in the verdict handed down by the Court of Final Appeal.

After the pro-democracy figures of the appeal side pointed out that the Emergency Regulations Ordinance(ERO) gives the SAR government too much power, the Court of Final Appeal proclaimed that the government power is “effectively restricted” by the Legislative Council(LegCo), the Basic Law and the courts in the Hong Kong system. The verdict, quite some space of which is devoted to stressing the check-and-balance role played by the LegCo, elaborates on the overall lawmaking power of the LegCo, which is entitled to amend or even revoke the ERO or its subsidiary ordinances. Such an argument put forward by the Final Court of Appeal certainly stays away from the reality, even shows that the court deludes itself as well as others, wrongly believing that the LegCo is what it is meant to be, being heedless of its weakness at checks and balances at all times and recently even reduced to a rubber stamp with only one voice prevailing.

As to the so-called protection of human rights and freedom by the Basic Law, it seems the Final Court of Appeal cannot see the law being overridden by higher principles. The saying that “overall jurisdiction”, “patriotists ruling Hong Kong” and “patriotism” have to be taken into consideration before talking about democracy, freedom and human rights is what the people in power want, which is shown in laws and decrees handed down by the National People’s Congress and imposed on the rulings by the courts. The argument about the so-called executive body checked and balanced by the courts and Basic Law is simply blind to real politics.

The strangest point in the verdict is the iterated elaboration on the constitutionality of the “anti-mask law” hinging on whether the restriction against protected rights is proportionate, in other words, whether the restriction exerted by the law is more than necessary. The argument in the verdict that revolves around the social conditions in August and September last year is of the opinion that it is legitimate for government to legislate for public order. However, that is a narrative about the state of “emergency” of last year. A subsidiary ordinance under the ERO, the “anti-mask law”, in any case, should only be put in practice in a state of emergency. What about now? More than a year later, with no demonstration on the streets, Hong Kong is not in a state of emergency anymore. Obviously, the law still in effect is as unbecoming as it is disproportionate.

In addition, the power delegated to the government, which is not empowered by public opinion, by the ERO is itself unbecoming and disproportionate. Times have changed. As face coverings in lawful demonstrations are prohibited, the civil servants who have sworn the oath to uphold the Basic Law and pledge allegiance to the Hong Kong SAR, the medical personnel targeted by the government and the teachers in the snitching agitation are bound to jitter when voicing their opinions in demonstrations. The adjudication by the Court of Final Appeal to strip them of the freedom from fear and deprive a whole lot of people of the freedom of expression is also as unbecoming as it is disproportionate.

Is the “anti-mask law” still suitable for use today? It is actually an elephant in the room to which everyone turns a blind eye. The Court of Final Appeal did not tackle the issue but pointed out the ruling is based on the social environment of last year; the verdict also mentions that no one files a lawsuit against the “anti-mask law” being currently inappropriate, and both the prosecuting and defendant parties did not lodge any arguments concerned.

After the Republic of China moved to Taiwan, the martial law in Taiwan ended after having been in effect for 38 years. For how much longer does the SAR government want Hong Kong to be in the state of emergency? While there is an expiry date for prohibition on group gatherings, why isn’t there any for the “anti-mask law”? The authority to abrogate the law is in the hands of the LegCo members and the SAR officials. Since they manipulate the laws, by which they are apt at ruling, they won’t easily let go of it for certain. The court, which manages to steer clear of controversies, maintains their insensitivity to the political reality, presuming the LegCo and the Basic Law are being what they are supposed to be. That is where the absurdity of Hong Kong lies.

(Allan Au Ka-lun, veteran journalist)

Click here for Chinese version

We invite you to join the conversation by submitting columns to our opinion section: [email protected]

Apple Daily reserves the right to refuse, abridge, alter or edit guest opinion columns for accuracy, length, clarity, and style, and the right to withdraw and withhold columns based on the discretion of our editorial page editors.

The opinions of the writers do not necessarily reflect the opinions of the editorial board.

---------------------------------

Apple Daily’s all-new English Edition is now available on the mobile app: bit.ly/2yMMfQE

To download the latest version,

iOS: bit.ly/AD_iOS

Android: bit.ly/AD_android

Or search Appledaily in App Store or Google Play