Hong Kong’s use of emergency powers to ban face masks was illegal

Anti-government protesters wear gas masks during clashes with police, outside Hong Kong Polytechnic University (PolyU) in Hong Kong, China, November 17, 2019. REUTERS/Tyrone Siu –…
Anti-government protesters wear gas masks during clashes with police, outside Hong Kong Polytechnic University (PolyU) in Hong Kong, China, November 17, 2019. REUTERS/Tyrone Siu –…
Image: Reuters/Tyrone Siu
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A Hong Kong court today (Nov. 18) ruled that the city’s face mask ban, enacted last month by invoking colonial-era emergency laws, is unconstitutional.

Judges heard a constitutional challenge to the ban last month, filed by two dozen opposition lawmakers. They argued that both the face mask ban, and the Emergency Regulations Ordinance invoked to enact the ban, were in contravention of the Basic Law, Hong Kong’s mini-constitution.

For now, the mask ban remains in place as it has not yet been officially struck down. The court will decide on the question of relief at a later hearing. At a news conference today, police said they will suspend the enforcement of the mask ban, and the government has said the same. If the government doesn’t appeal the court ruling, it would have to drop charges pressed under the mask ban, and people who have been arrested under the ban, or harassed to take off their mask, will now be entitled to file civil claims for unlawful detention, battery, and assault.

Meanwhile, the pro-democracy legislators who filed the judicial review called on the government to withdraw all anti-mask related charges, saying in a statement that the “current crisis must be resolved by political means, not by making repressive laws or by resorting to judicial intervention.”

In a protest movement that has been playing out as much on the streets as it has in courts, today’s judgment represents something of a first taste of victory for protesters. For months, the police and the government have filed and been granted victory after victory in their attempt to thwart the protests: injunctions to ban protests in subway stations; severely restrict protests at the airport; prohibit online messages that incite violence, and a so-called anti-doxxing injunction. On the protesters’ side, a recent application for an injunction to bar police from entering the Chinese University of Hong Kong was thrown out by the court. In almost every case, the government has had its way and attempts to challenge their injunctions have been unsuccessful.

In their judgement, the judges drilled down into the intricacies of the law against the use of face masks (pdf).

First, they declared that part of the Emergency Regulations Ordinance is unconstitutional. The ordinance gives the city’s top official the power to enact any law she sees fit in “an occasion of public danger or emergency.” Chief executive Carrie Lam had stated that Hong Kong is “not in a state of emergency,” and had instead used the emergency powers on the basis that the city was facing “serious public danger.”

The judges took issue with this, writing that the ground of public danger is “so wide in its scope, the conferment of powers so complete, its conditions for invocation so uncertain,” that it is unconstitutional.

However, this doesn’t mean that the entire Emergency Regulations Ordinance has been struck down, as the ground of emergency was beyond the scope of the judicial review.

The judges then turned their attention to the mask ban itself. They acknowledged that the ban sought to achieve legitimate aims, including dampening the emboldening effect that the anonymity offered by a mask has on protesters, and helping the police with law enforcement, investigation, and prosecution. The judges also acknowledged that the ban was rationally connected with its aims: for example, without a mask, certain protesters may be less willing to commit vandalism or violent acts. Unmasked protesters would also be more easily identifiable by the police. And though many opponents of the mask ban note that people are openly flouting the measure, the judges wrote that the law’s ineffectiveness “does not in itself disprove rational connection.”

What the judges found fault in was that the mask ban went beyond what is “reasonably necessary” to achieve its aims. They zeroed in on two specific sections of the ban: one that prohibited masks at all public gatherings and marches, whether legal or not; and one that gave police the powers to stop any person and demand that they remove their mask.

Because the mask ban is so broad and vague, it leaves unclear whether it applies to participants of public gatherings, or merely those who happen to be nearby, the judges wrote. And because the ban applies to all public assemblies and processions, it means that different demonstrations—like Pride parades and labor rights gatherings—where participants have legitimate reasons for not wanting to be identified end up being swept up under a “near blanket prohibition.”

The judges also ruled that the provision granting police officers the power to demand that any person in a public place remove their mask “exceeds what is reasonably necessary to achieve the aim of law enforcement, investigation and prosecution violent protesters even in the prevailing turbulent circumstances in Hong Kong.” They pointed to the UK as an example, where police similarly have powers to demand the removal of masks but only if the officer is at the rank of inspector or above, and if that officer believes that violence may break out in the vicinity, or if the masked person is carrying offensive weapons without good reason.