Hong Kong’s highest court has ruled that a controversial ban on face masks invoked under the city’s emergency powers law in October is unconstitutional.

A High Court ruling released this afternoon in response to a request for judicial review filed by 24 pro-democracy legislators says that the mask ban, aimed at quelling the city’s ongoing anti-government protests, was incompatible with the Basic Law as it excessively infringed on people’s fundamental rights.

The widely-loathed ban on face coverings was invoked under the draconian colonial-era Emergency Regulations Ordinance (ERO), which gives the chief executive sweeping powers to bypass the Legislative Council and implement “any regulations whatsoever” in the event of a public emergency. Prior to the mask ban, the last time the ERO was used was during the 1967 Leftist Riots.

The ban made it a criminal offense for anyone to wear a mask at any illegal or unauthorized assembly, and granted police the authority to order anyone to remove a mask. Failure to abide by the regulation could be punished by a fine and up to a year in prison.

But according to the ruling by Judges Godfrey Lam and Anderson Chow, the portion of the ban outlining a broad interpretation of an illegal gathering went too far, as did the portion granting police powers to demand people remove their masks. However, in their ruling, the judges made it clear that they were not saying that such a law, in principle, was “generally objectionable or unconstitutional,” but rather that the particulars of the ban were problematic.

They also took issue with the ERO itself, noting it was “the power and function of the LegCo as the designated legislature of the Hong Kong SAR to legislate. Other bodies cannot consistently with the constitutional framework be given general legislative power but only the power to make subordinate legislation.”

Even as she announced the ban last month, Chief Executive Carrie Lam insisted that Hong Kong was not in a state of emergency, and today’s ruling stated that the use of the ERO itself was unconstitutional when used in “occasions of public danger,” as opposed to a true state of emergency.

“The ERO, insofar as it empowers the [chief executive] to make regulations on any occasion of public danger, is incompatible with the Basic Law,” the judges wrote.

They did not address, however, the question of whether the ERO was constitutional when invoked in a bona fide state of emergency, and nor did they offer instructions for enforcing today’s ruling. The judges said they would convene a hearing on the appropriate relief in due course.

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