Anti-mask Law Ruled a Disproportionate Infringement of Rights Amidst Political Upheaval in Hong Kong

Not only has the Hong Kong anti-government movement not died down after 6 months, but it has escalated. The government seems to think that it is worth suspending human rights guarantees in the expense of peace. Injunction is granted against violence-inciting online comments, limiting the freedom of speech. The most recent spotlight is the judgement on the constitutionality of the anti-mask law enacted through invoking the Emergency Regulations Ordinance (Kwok Wing Hang and Others v. Chief Executive in Council and Another [2019] HKCFI 2820). In a rare move, two judges were heard the application for the judicial review in the Court of First Instance, and they ruled against the government.

The Emergency Regulations Ordinance confers to the Chief Executive the power to make regulations in an occasion of emergency or public danger, bypassing the Legislative Council. The Prohibition on Face Covering Regulation (“PCFR”) was made thereunder, prohibiting facial covering likely to prevent identification in four situations, namely an unlawful assembly, unauthorised assembly, public meeting notified and not prohibited, and public processions notified and not objected to.

There were arguments on whether ERO was constitutional, as it gave legislative power to the executive. The discussion is better left for another occasion, and this article will focus on the infringement of fundamental rights. The judges embarked on the famous four-stage proportionality test, considering two aspects of possible infringement: (1) the prohibition of facial covering restricting the freedom of assembly, procession and demonstration, the freedom of speech and expression, and the right to privacy, and (2) the empowerment of police officer to stop any person with facial covering in public and to require that person to remove it (engaging the freedom of the person or right to liberty). The legitimate aims of the ordinance – as argued and accepted by the Court – were the deterrence and elimination of crime and violent acts, and facilitation of law enforcement, investigation and prosecution. The court accepted the possible emboldening effect of wearing masks and the hardship it caused to identification of criminals, thus bringing it to the question of whether the measures are no more than reasonably necessary for the purposes.

Regarding the first issue, the Court held that the prohibition against the use of mask in unlawful assemblies fell within the wide margin of appreciation – but that the near-blanket prohibition against other lawful gatherings went beyond what is reasonably necessary and failed the proportionality test. The prohibition extended to facial covering of any type, including face paint, and used for whatever reason, like religious or cultural reasons. The restriction – it was held – had a significant impact on the freedom of expression due to its wide application without a case-by-case review system.

Indeed, Hong Kong is not the first place to implement the anti-mask law. Similarly, in SAS v France [2014] ECHR 695, a law which prohibited anyone from wearing clothing that was designed to conceal the face in public, was held to be disproportionate to the legitimate aim of prevention of danger and the combat of identity fraud (as the scope of application was not limited to such contexts, but was comprehensive).

Adding to this, the Court held that the new law had not been proved to be effective, but rather, had caused an adverse effect by provoking public sentiment. This had triggered mask-themed protests opposing the implementation of the controversial law, which had once again, led to violent outburst.

On the second issue, police empowerment was held to be an inroad into protected rights more than reasonably necessary. There was practically no limit and no clear guidelines for a police officer to exercise such power. It could be exercised irrespective of whether there was any public meeting or procession taking place in the vicinity, and regardless of whether there was any risk of outbreak of violence or other criminal acts. The Court held that there was a risk that the power would be used arbitrarily for random stoppage anywhere. Thus, it could not be said to be a proportionate infringement.

Leave to appeal has been granted, and it is likely the matter will go to the Final Court of Appeal in the future, seeing how controversial it is. Meanwhile, Beijing insisted it held the sole authority to rule on constitutional matters in the region. The statement may further jeopardize the rule of law in Hong Kong. The city is in a dire situation, politically and legally.