Written by Song Yihang
National University of Singapore
Faculty of Law
During the COVID-19 pandemic, the use of medical masks has become integral in suppressing the spread of the virus all over the world, saving countless lives in the process.
In fact, mask-wearing was commonplace in Hong Kong even before the coronavirus outbreak. Due to the legacy of the 2003 SARS outbreak which killed 298 people in the Special Administrative Region, a large segment of the population continues to wear masks habitually whenever they are under the weather.
However, this practice of wearing masks posed a challenge for the Hong Kong government in 2019, as the widespread violence and damage on infrastructure were mostly caused by protestors wearing facial coverings and dressed in all-black outfits.
In response to mass protests that took place on China’s national day, the Chief-Executive in Council (CEIC) – Ms Carrie Lam and her cabinet – enacted the Prohibition on Face Covering Regulations (PFCR). Under s 3 of the PFCR, facial coverings are prohibited in all forms of public gatherings, illegal or authorized alike. Section 5 of the regulations further empowers police officers to remove such facial coverings on demand. Offenders could be sentenced to one year in jail and/or a fine of up to HK$25,000. As of April 2020, a total of 682 people has been arrested under this law.
Hence, the ongoing pandemic gave rise to Hong Kong’s dilemma. With more than 1,000 confirmed cases of COVID-19, 4 deaths and a growing number of infections in April, surgical masks have become a staple item and paramount source of protection against the virus. Is there still a place for the anti-mask law during such a public health crisis?
Judicial review of the anti-mask law
On 5 October 2019, 24 members of Hong Kong’s Legislative Council (“LegCo”) lodged an application for the judicial review of the Emergency Regulations Ordinance (ERO) and the PFCR made thereunder.
The Hong Kong Court of First Instance (HKCFI) held that the ERO, a colonial-era legislation providing legal basis for the CEIC’s enactment of the anti-mask law, to be “incompatible with the Basic Law” under s 2(1).
In arriving at this decision, the HKCFI drew a distinction between colonial and modern Hong Kong, based on the principles of Separation of Powers and Constitutional Supremacy.
First, under the Basic Law, the LegCo is the sole legislature of Hong Kong. Therefore, laws such as the PFCR should be enacted by the LegCo instead of the CEIC.
Second, under Hong Kong’s present constitutional framework, LegCo is subject to the Basic Law, which is the supreme law of the Special Administrative Region. This stands in stark contrast to colonial Hong Kong, which adopts the British model of Parliamentary Supremacy, and the Governor in Council was a body that had “a controlling voice in the Legislature”. Since the Basic Law requires laws to be enacted, amended and repealed by a legislature which is constituted by election, the anti-mask law enacted by the Executive branch was held to be invalid and of no effect.
Additionally, the HKCFI found that the blanket prohibition against facial coverings contravened the Basic Law and the Hong Kong Bill of Rights Ordinance (HKBORO), as it was disproportionate to its legitimate societal aims. Only the prohibition at unlawful assemblies (s 3(1)(a) of the PFCR) was held to be valid, as “no person should take part in an unlawful assembly in the first place”.
In arriving at this decision, the court found the anti-mask law to be disproportionate. The measure went further than what was “reasonably necessary for the furtherance of legitimate societal aims”, and this was for two reasons.
First, there was a lack of convincing evidence on the effectiveness of the anti-mask law in serving its purpose, namely deterring and eliminating the emboldening effect for violent protestors. In fact, the Applicants argued that it has instead caused further confusion and led to greater chaos.
Second, the scope of prohibition was excessively broad. It encompassed unauthorized yet peaceful processions; non-participants merely present at such gatherings; and facial coverings of any type or purpose.
As a result of the decision, Hong Kong police announced that it would stop enforcing the PFCR. However, public opinion was split. Pro-democracy factions in Hong Kong perceived the judgment as an important recognition of the region’s constitutional framework, while the Mainland saw it as sending false signals to radicals and impeding the government’s efforts at stemming the crippling protests that have persisted for more than four months at the time.
Polarisation of the dispute
The day after the HKCFI judgment the Legislative Affairs Commission of the Mainland’s National People’s Congress Standing Committee (NPCSC) – the central state organ exercising legislative power – issued a statement criticizing it. The Hong Kong and Macau Affairs Office (HKMAO) – the Mainland authority in charge of managing the two SARs – also said that the decision was an “open challenge” to both the authority of the NPCSC and the Chief Executive.
According to Zang Tiewei, a spokesperson for the NPCSC, the conformity of the ERO with the Basic Law can only be determined by the committee, and “no other organ has the right to judge or decide”.
A literal interpretation of the NPCSC’s statement appears to suggest that Hong Kong courts may not independently review the constitutionality of local statutes – a view that opposes the long-held position of the judiciary. In Ng Ka Ling v Director of Immigration [1999] HKCFA 72, the Court of Final Appeal held that Hong Kong courts have “a duty to enforce and interpret” the law in exercising their judicial power conferred by the Basic Law. Furthermore, under Article 19 of the Basic Law, “judicial power” includes the power of final adjudication.
Therefore, the NPCSC’s statement drew the ire of the Hong Kong Bar Association, which said that “any suggestion that the Courts… cannot conduct constitutional review circumscribes the exercise of judicial power by the Courts which they have always enjoyed and is contrary to the Basic Law”. Furthermore, past interpretive actions taken by the Mainland have been heavily criticized by the legal sector as damaging to Hong Kong’s judicial independence and even the principle of “one country, two systems”.
The Court of Appeal decision amidst COVID-19
On 9 January 2020, the Hong Kong government began its appeal to the Court of Appeal (HKCA). This appeal was further complicated by the emergence of COVID-19 in 2020, as masks are no longer only worn by protesters on the streets and is instead an essential protective equipment.
Despite the backdrop of this growing pandemic, the HKCA partially overturned the lower court decision and largely upheld the mask ban under the PFCR.
First, the HKCA found the ERO to be an integral tool for the Chief Executive in tackling emergency and public dangers. Despite being a pre-1997 law inherited from its colonial era, the ERO remains essential in avoiding a significant legal “lacuna” in Hong Kong, as there are no equivalent laws that would allow the CEIC to enact similar legislations in times of emergency. For example, the court noted that in tackling COVID-19, but for the enactment of the Prevention and Control of Diseases Ordinance in 2008, the Government would have needed to invoke the ERO for some of its response measures.
Second, the HKCA held that the prohibition of facial coverings at illegal or unauthorised assembles are legitimate. In arriving at the decision, the court adopted the stricter proportionality test of “no more than necessary” but still held that the freedoms to demonstrate and of assembly are not absolute – Hence, s 3 of the PFCR serves the legitimate aim of deterring the shielding of more violent protesters from law enforcement.
Furthermore, the court found that the defence of ‘reasonable excuse’ under s 4 of the PFCR is able to provide adequate protection for innocent protestors who may have been unaware of the illegal nature of the assembly, or had no reasonable opportunity to leave the scene. The scope of ‘reasonable excuse’ is not exhaustively defined under the PFCR, but three grounds are specifically included, namely: (1) professional or employment reasons, (2) religious reasons and (3) pre-existing medical or health reasons. In view of the anti-mask law’s potential adverse impact on the right of peaceful demonstration, the court held that this defence under s 4 should be given “a liberal interpretation”, and the prosecution bears the legal burden of disproving the defence beyond reasonable doubt.
In essence, the HKCA concluded that facial coverings at lawful gatherings are acceptable, but would be a violation of the law if worn at an illegal protest. This decision was lauded by the HKMAO as being “important to stop riots and restore order”, and is “in the fundamental interests of the Hong Kong community and the general public”.
However, the HKCA may have erred in applying the principle of continuity between the colonial-era and post-handover LegCo, without sufficient regard to Hong Kong’s modern constitutional framework and the principle of Separation of Powers. Under British rule, while the Governor in Council could be delegated with a limited legislative power to make subordinate legislation, it was in fact the “controlling voice” in the Legislation. This is not the case post-handover, as the Basic Law established a new constitutional framework, in which laws are to be enacted by a democratically elected legislature.
While the CEIC, as the Executive branch, has legitimate power to make subordinate legislation under the Basic Law, characteristics of laws promulgated under the ERO strongly suggest that they cannot be classified as such.
First, the ERO does not provide any shape or direction as to its promulgated regulations. This is unlike a typical primary legislation that legislates on a subject matter in principle, while leaving another body to devise the detailed legal norms.
Second, regulations made under the ERO may allow the CEIC to amend or suspend the operation of any existing legislation. This is inconsistent with the Basic Law, which gives that power and function to the LegCo, to be exercised “in accordance with the provisions of the Basic Law and legal procedures”.
Third, there is neither a time limit on the validity and force of the regulations made under the ERO, nor is there any mechanism for constant review. Hence, these regulations may theoretically continue to be in force indefinitely, until repealed by the CEIC.
Therefore, the sweeping powers conferred by the ERO raises questions about the doctrine of Separation of Powers under the Basic Law, and this colonial-era law continues to have the propensity to contravene Hong Kong residents’ rights and liberties. Nevertheless, the court’s deference towards the Executive branch may have been motivated by the growing COVID-19 pandemic, with greater latitude granted to the CEIC to enact necessary countermeasures. Unsurprisingly, the ERO was once again invoked by Ms Carrie Lam to postpone the LegCo elections by one year, citing the risk of further escalating the growing community transmission.
In view of its limitations and the rising COVID-19 cases, it is unlikely that the HKCA judgment will resolve the controversy. As a matter of fact, pro-democracy lawmakers have already declared that they will take the case to the Court of Final Appeal, where the fate of the anti-mask law will be conclusively determined.