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Reuters/Tyrone Siu
Catch me if you can.
HALLOWEEN CHALLENGE

Hong Kong’s mask ban is being tested in court, and so is the city’s rule of law

By Mary Hui

Hong Kong is in for a special Halloween this year, as revelries will take place against the backdrop of months of ongoing protests—and a controversial face mask ban enacted almost a month ago.

Local police are on high alert for protesters who may seize on the date to skirt the mask ban, with an officer telling the South China Morning Post that the force would order party-goers “to remove their masks to check their identities if they are chanting slogans instead of celebrating Halloween.” Ocean Park, the city’s largest theme park, announced today (Oct. 30) that it would cancel its entire Halloween Fest program because of “the current social situation,” while the subway is once again shutting down early in an apparent bid to deter people from taking to the streets.

Halloween falls on another crucial date for the months-long protests in Hong Kong—a court will hear two constitutional challenges to the government’s decision prohibit face masks, seen as controversial not least as it was done so by invoking colonial-era emergency laws.

The broader challenge, filed by two dozen opposition lawmakers, argues that not only the face mask ban, but even the government’s use of century-old emergency powers to enact the ban, was unconstitutional. Another application, filed by a former student protest leader, focuses more narrowly on the face mask ban. The two challenges had also applied for interim injunctions against the mask ban within hours of the law’s announcement on Oct. 4, which were denied almost immediately.

Other countries like the US, Canada, and France also have mask bans, but those are democracies where citizens vote for the representatives who pass such laws. Neither the legislative nor the executive branch in Hong Kong is accountable to the people.

At issue is also not merely whether people can wear masks or not, but the status of the rule of law in Hong Kong, amid growing alarm that the autonomy promised to Hong Kong following the city’s handover to China from British rule in 1997 under the “one country, two systems” framework is being eroded at an alarming rate. The ongoing protests, which began in June in response to a now-withdrawn extradition law that would have allowed Hong Kong to send suspects to mainland China to face trial, show no signs of abating, with police employing increasingly harsh tactics to put down the protests. The mask ban was imposed by the government in an attempt to put an end to the unrest—with limited success at best, and in place of any political solution to the crisis.

“When it comes to something like a face mask ban, the government is basically using something that is relatively low-level… to try and test their boundaries of what is essentially an arbitrary use of power,” said Hong Kong-based lawyer Kevin Yam. Should the court rule in favor of the government, it would in effect condone the use of emergency powers, and could embolden the government to extends its use of those powers beyond the mask ban. That would represent a “bigger hit” to the rule of law in Hong Kong, said Yam.

On the constitutionality of emergency powers 

Hong Kong’s Emergency Regulations Ordinance dates to 1922, and was last used during labor riots in 1967 fueled by pro-Beijing forces. Critics had warned that invoking emergency laws would set a dangerous precedent for Hong Kong, opening the floodgates to further restrictions on the city’s freedoms. However, chief executive Carrie Lam dismissed these concerns and ploughed ahead, unilaterally enforcing the mask ban by granting herself powers to bypass the legislature, which at the time was in summer recess.

In their application, the opposition lawmakers argue that the use of emergency powers is unconstitutional because Hong Kong’s Bill of Rights Ordinance expressly states that existing fundamental rights may be restricted only if there is a public emergency that “threatens the life of the nation.” Yet Lam, in invoking emergency powers, explicitly said “Hong Kong is not in a state of emergency.”

The lawmakers further argued that not only was Lam’s invocation of emergency powers unconstitutional, but the Emergency Regulations Ordinance itself is effectively unconstitutional. This is because it grants the chief executive the power to make regulations “on any occasion” of “public danger”—a vague and undefined concept. However, the Bill of Rights Ordinance, enacted in 1991, only permits restrictions of rights in exceptional circumstances—namely where the life of the nation is at risk.  This therefore puts the Emergency Regulations Ordinance directly at odds with the Bill of Rights Ordinance. And because the Bill of Rights Ordinance repealed any pre-existing laws that are inconsistent with it, the lawmakers argue, the Emergency Regulations Ordinance is actually null and void.

Another aspect of the emergency laws that renders them unconstitutional, the lawmakers argue, is that it allows the chief executive to completely bypass the city’s legislature in making laws, contravening multiple articles of the Basic Law, the city’s mini constitution.

On the constitutionality of the ban 

Emergency powers aside, both applications for judicial review argue that the law against the use of face masks is unconstitutional.

The law disproportionately restricts several fundamental rights protected by the Bill of Rights, the applicants argue, namely: the liberty of person; freedom of expression; protection of privacy, and right of peaceful assembly.

One key criticism is that the face mask ban prohibits the use of masks even if the gathering or march is authorized by police. The applicants argue that this goes beyond what is necessary for the protection of public order and safety. While the government may argue that the right to assembly still exists, applicants note that that the current political climate is such that people may not want to be identified even if they’re participating in a legally sanctioned gathering, for fear of retaliations such as being fired from their job.

Events in the several weeks since the ban was enforced suggest that fundamental rights have indeed been violated. In numerous instances, police have forcibly removed respirator masks from journalists, even though the law stipulates that someone who needs a mask for reasons of physical safety while working can cite as a defence that they had a “reasonable excuse” to cover their face.

In another instance, on the first day of the mask ban, a group of riot police suddenly charged at and tackled a young man and his female companion who were walking around wearing masks. There were few, if any, other protesters around.

The applicants also argue that the mask ban is not rationally connected to its legitimate aim of restoring public order and safety by reducing acts of violence. By assuming that anyone wearing a mask is doing so for an unlawful purpose, the applicants note, the ban effectively deters law-abiding protesters from taking part in lawful public meetings and assemblies.

Furthermore, the mask ban has actually had the opposite effect by provoking further violent protests, while protesters who have carried out acts of violence since the ban took effect have continued to wear masks. The reason for this is one of simple mathematics, as David Webb, a shareholder activist and frequent government critic, pointed out—if someone is risking a 10-year jail term for rioting, but might reduce their probability of being identified by wearing a mask, then the punishment of up to a one-year jail term for obscuring their face is a sensible insurance policy.