Hong Kong’s Anti-mask Law: A Legal Victory with a Disturbing Twist

Julius Yam

University of Oxford

Kwok Wing Hang and Others v Chief Executive in Council is one of the most important cases in Hong Kong’s post-colonial constitutional history. It was issued during one of Hong Kong’s most divisive times, touches on fundamental questions relating to separation of powers, and attracted unwanted attention from Beijing that might mark the end of constitutional review in Hong Kong. The ins and outs of the case offer insights into how Hong Kong’s politics are unfolding and illustrate the difficulty of navigating mega-political questions in non-democratic regimes.

The Anti-mask Law

What started as protests against a proposed extradition bill in June 2019 became a wide-scale anti-government political movement, as protesters continue to take to the streets of Hong Kong over five months later. Black attire and face masks are now the iconic image of Hong Kong’s protestors. Facial coverings apparently made it difficult for the police to identify and arrest protestors. Under s.2(1) of the Emergency Regulations Ordinance (“ERO”), the Chief Executive in Council can make regulations “which he may consider desirable in the public interest” when it is an “an occasion of emergency or public danger”. Described by the court as “a law of some antiquity”, the ERO is a colonial remnant that will be a hundred years old in 2022 if it survives legal challenge. 

In October 2019, the Chief Executive in Council introduced the Prohibition on Face Covering Regulation (“PFCR”). The PFCR created two offences. First, it made it a crime to wear facial coverings at public assemblies or public meetings, even if they were lawful or peaceful. The only defence is if one has lawful authority or a reasonable excuse for wearing the facial covering, such as when the profession calls for such clothing. Second, it granted police broad powers to require anyone to remove facial coverings if the officer “reasonably believes” that the covering is “likely to prevent identification”; failure to comply is a criminal offence. Both offences can lead to fines or imprisonment, for maximum periods of one year, and six months respectively. 

A Legal Victory

Opposition members of the Legislative Council lodged a judicial review application against the government, challenging the constitutionality of both the PFCR and ERO. In a rare move, two judges were appointed to sit together to hear the case. While the Court of First Instance declined to grant interim relief suspending the PFCR, it eventually decided against the government in its substantive judgment on 18 November 2019. The applicants relied on five grounds. I shall discuss three here.

1.      Unlawful Delegation

The Court held that the ERO itself, the source of power for the PFCR, was an unlawful delegation of legislative powers to the executive. Not only is this the first post-colonial case that thoroughly explores this issue, it also overruled two colonial precedents on the ground that those cases rested on assumptions of Parliamentary sovereignty and that a new constitutional order after the handover called for an approach that is more sensitive to the provisions of the Basic Law, the de facto constitution of Hong Kong. Although falling short of developing a structured doctrine, the court adopted a substance-over-form approach. Considering the width of the delegated powers, limited guidelines and the subjectivity of the conditions, the fact that the ERO is inconsistent with established norms for regulations, the lack of sunset clauses, and the general lack of legislative oversight, the Court struck down the part of the Ordinance that permitted the executive to make regulations in an occasion of public danger. This means the ordinance may still be used in “an occasion of emergency”. Practically all the considerations mentioned are not limited to the public danger ground. Putting it differently, if the Court’s reasoning is correct, the entire ERO should be ruled unconstitutional.

2.      Prescribed by Law

Restriction of rights in Hong Kong must be prescribed by law, meaning the restriction must be accessible by the public and sufficiently precise. The applicants argued that the ERO conferred wide and unrestricted discretionary powers on the executive to make rights-infringing regulations, and so failed to meet the ‘prescribed-by-law’ requirement. The Court rejected this argument, noting that “the ERO does not itself purport to limit any fundamental rights”. It reasoned that the prescribed-by-law requirement only kicks in when the law in question restricts rights, which, in this case, was the PFCR and not the ERO. This takes an unduly narrow approach to the prescribed-by-law test. The ERO clearly envisages circumstances where regulations made under it will restrict rights, as evidenced by the list of powers and penalties. The ERO had also been used many times to create rights-restrictive regulations. The Court’s logic essentially creates a perverse incentive for lawmakers to draft broadly worded, discretionary-conferring laws that do not explicitly restrict rights.

3.      Proportionality

The Court also held that all but one of the offences created by the PFCR was not proportionate.  The only offence that survived the challenge was the prohibition of facial covering under unlawful assembly. The Court accepted that prohibitions on facial covering pursued legitimate aims of deterrence and facilitation of law enforcement, and were rationally connected to those aims. However, the near-blanket restrictions failed on the necessity stage. A passer-by wearing a surgical mask or a person attending a lawful or peaceful gathering would commit an offence under the PFCR. Interestingly, the Court also considered the regulation to be ineffective. The law had failed to deter protests – in fact, they have escalated. While the Court was not in a position to accurately assess the impact of the regulation, it suggested that the government had failed to prove its effectiveness.

The grant of power to the police to require persons to remove facial coverings for identification purposes was also struck down. The provision had set close to zero restrictions on when those powers could be exercised. Any police, in any public place, could order basically anyone to remove any type of facial covering. The Court also looked to UK and EU jurisprudence and held that more circumscribed measures were available. Accordingly, the restriction failed the proportionality test.

4.      Relief

The question of relief was dealt with at a hearing on 22 November 2019, two days after the substantive judgment was handed down. The Court struck down the public danger ground in the ERO and almost the entire PFCR, but issued a seven-day temporary suspension order on 22 November 2019, allowing sufficient time for the government to apply to stay the declarations pending appeal. The relief judgment explores the differences between the suspension order and the more novel temporary validity order, as well as the potential conceptual and practical difficulties they pose.

On 27 November 2019, the Court of Appeal decided to extend the suspension order to 10 December 2019. The appeal will be heard on 9 January 2020.

The Twist

A day after the substantive judgment was released, the Legislative Affairs Commissions of the Standing Committee of the National People’s Congress (“NPCSC”) (the top legislative body in China) issued a statement slamming the Court’s ruling. It stated that only the NPCSC has the power to determine and decide whether Hong Kong local laws are compatible with the Basic Law; no other institutions are vested with such powers (“香港特别行政区法律是否符合香港基本法，只能由全国人大常委会作出判断和决定，任何其他机关都无权作出判断和决定。”).

This is very worrying. Unlike its Chinese counterparts, Hong Kong courts enjoy constitutional review powers and have regularly struck down local laws for being inconsistent with the Basic Law. Under Article 158 of the Basic Law, the final interpreter of the Basic Law is the NPCSC, but Article 19 of the Basic Law vests the final adjudicative power in the Court of Final Appeal. Constitutional review power was firmly established in Ng Ka Ling and Another v the Director of Immigration in 1999 (commonly regarded as the Marbury v Madison of Hong Kong). The NPCSC can clarify what Basic Law provisions mean, but it is the Hong Kong courts that decide whether local laws are compatible with the Basic Law. There is an impression that the NPCSC is attempting to equate Hong Kong courts to Chinese ones. If that is the case, how can one explain the robust constitutional practice in Hong Kong for the past twenty-two years?

Overshadowing the original ruling, the NPCSC statement caused an uproar in Hong Kong civil society. Retired Chief Justice, Andrew Li, commented that, “If [the statement] is what was meant, it is surprising and alarming.” The Hong Kong Bar Association described the statement as “legally incorrect”. The NPCSC’s statement is non-binding; far from being just a friendly reminder however, the statement’s final sentence remarks that the NPCSC is considering its options. The NPCSC may respond by issuing a binding interpretation. It has issued five constitutional interpretations since the handover. The most recent, and arguably most controversial, in 2016 related to the requirements of oath-taking when assuming office. This interpretation was seen as having legislative effects instead of merely clarifying a constitutional provision as it effectively banned certain dissidents from standing for election or assuming office.

In light of China’s assertive attitude in both the global and domestic spheres, another NPCSC interpretation would be unsurprising, though its content would be hard to say for now. The most radical possibility would be that the NPCSC would seek to abolish constitutional review in Hong Kong. This would fundamentally redefine the nature of Hong Kong and drastically undermine checks on public powers. Calling this the “end of Hong Kong” is perhaps not an overstatement. Hopefully, the NPCSC’s meaning has been lost in translation, and that all the NPCSC actually meant was that it enjoyed the final interpretative power of the Basic Law, which is nothing new. Another, more realistic, possibility is that the NPCSC “overrules” the Court’s judgment on the ERO and PFCR by delineating NPCSC’s understanding of executive powers. An interpretation of this kind would constrain judicial independence and further instill fear among the judiciary.

The most ideal situation is to let Hong Kong’s courts do their own business. Decades of hard work and professionalism by the judiciary have contributed to the city’s hard-earned reputation, prosperity and stability. The countless protests over the past months and the opposition’s recent landslide victory in local elections show that Hong Kong, unlike other Chinese cities, do not respond well to China’s hard line strategies. Further suppression will only lead to collateral damage. The last thing Hong Kong needs, especially now, is a judiciary with independence compromised beyond repair.

Julius Yam is a Research Associate, Programme for the Foundations of Law and Constitutional Government, at the University of Oxford. The author would like to thank Cora Chan and Anna Dziedzic for their helpful comments.

Suggested citation: Julius Yam, “Hong Kong’s Anti-mask Law: A Legal Victory with a Disturbing Twist” IACL-AIDC Blog (3 December 2019), https://blog-iacl-aidc.org/2019-posts/2019/12/3/hong-kongs-anti-mask-law-a-legal-victory-with-a-disturbing-twist