The Court of Final Appeal (CFA) has upheld a controversial ban on public face-coverings. The ban was brought in following months of protest against a bill which would have allowed the extradition of criminal suspects to China. It was suspended by the High Court before being partly restored on appeal. Now, the CFA has restored the whole ban and approved the colonial emergency law used to issue it. The ruling is another blow to the financial hub’s democracy movement.
EXTRADITION BILL SPARKS PROTEST & EMERGENCY LAW
In 2019, an extradition bill sparked protests in Hong Kong as locals feared being extradited and tried in Chinese courts for offending the Chinese Communist Party (CCP). This fear was not unfounded; only a few years earlier, five booksellers were abducted and detained in China for selling books critical of the CCP.
The government withdrew the bill in September 2019, but protests continued as focus shifted to police violence and democratic reform. Unable to quell the violence of some masked protesters, the government banned public face-coverings. The Prohibition on Face Covering Regulation (Regulation) makes it an offence to cover your face at public gatherings. Any person that refuses to remove a face-covering when ordered to do so could receive a fine and six-month prison sentence. The Regulation empowers police to remove face-coverings by force.
This new law was made using the Emergency Regulations Ordinance (Ordinance), a colonial law that once enabled the British governor to make sweeping, invasive rules to maintain law and order. The Ordinance had not been used since the 1973 Oil Crisis and it was unclear whether it was still law since Hong Kong became a self-governing territory of China in 1997.
COURT OF FIRST INSTANCE RULES MASK BAN UNLAWFUL, COURT OF APPEAL DISAGREES
The Court of First Instance (CFI) ruled that the Ordinance was no longer law because it was incompatible with the Basic Law—the city’s constitution. The Ordinance gave the government the power to make “any regulations whatsoever” in an emergency. This amounted to unlimited lawmaking power, while the Basic Law granted this power only to the Legislative Council (LegCo).
The government argued its power was not unlimited because it applied only in emergencies. The CFI dismissed this argument since the conclusion that an emergency exists is an opinion and so not justiciable, i.e., not reviewable by the courts. Therefore, since the courts could not decide when an emergency exists, the government could in practice use the Ordinance to make laws at will without restriction.
Regarding the Regulation, the CFI used a four-stage test:
(1) does it have a legitimate aim;
(2) does it advance that aim;
(3) is it no more than necessary; and
(4) did it strike a reasonable balance between the interests of society and individuals.
The CFI accepted that the Regulation had a legitimate aim in maintaining law and order, and that banning face-coverings might advance that aim. However, the CFI found the Regulation to be excessive as it unreasonably restricted the rights of peaceful protesters and religious minorities, and unduly affected lawful gatherings. The CFI cited the decisions of the UN Human Rights Commission in Yaker v France and the Quebec Court of Appeal in Villeneuve c Montréal. In the former, a blanket ban on the niqab (Islamic veil) in public was found to violate the right to freedom of religion; while in the latter, the Quebec Court of Appeal found that requiring protesters to submit an itinerary was onerous and curtailed their right to freedom of assembly.
On appeal from the government, the Court of Appeal (CA) overturned the CFI’s decision and reinstated the Ordinance and most of the Regulation. The CA ruled that the Ordinance did not confer unlimited lawmaking power on the government. Nor did it find the Regulation to be disproportionate when applied to unlawful gatherings (although it agreed it was disproportionate to apply it to lawful gatherings).
COURT OF FINAL APPEAL RULES MASK BAN LAWFUL
The CFA agreed with the CA. The Ordinance did not grant unlimited lawmaking powers because the LegCo could repeal or amend any regulation made under it. The courts also had the power to review regulations and strike down those that violated fundamental rights. The government’s assessment that an emergency existed was reviewable, since an emergency is an objective situation, which the courts can challenge.
Regarding the Regulation, the CFA described at length the actions of masked protesters and stressed that freedom of assembly and speech are not absolute but are subject to restrictions where they infringe the rights of others.
It was submitted that the Regulation was disproportionate in respect of unauthorised gatherings because
(a) an isolated act of violence at an otherwise peaceful gathering would render it unauthorised, which would then require face-coverings to be removed; and
(b) any bystander might also be caught by the provisions.
The CFA dismissed both arguments: the aim of the Regulation was to prevent violence and it was crucial to give police the power to quell sudden outbreaks of violence. It was a question of evidence whether a person was an innocent bystander. The CFA also dismissed as a false dichotomy the distinction between peaceful and violent protesters. Therefore, not only did it uphold the ban on face-coverings at unlawful and unauthorised gatherings, but it reversed the CA’s decision and extended the ban to lawful assemblies.
COMMENT
The CFA and CA were both wrong to think there are sufficient controls on the government to prevent it abusing the powers granted to it by the Ordinance. Both referred to the power of the LegCo to repeal regulations made under the Ordinance, yet the CFA failed to see the irony that some of the Applicants in this case were LegCo members and were arrested shortly after the CA’s decision because of their support for the protest movement. The CFA also failed to see the irony in highlighting the courts’ power to restrain the government when Beijing has called for Hong Kong judges to be “patriots” and has suggested removing foreign judges.
The CFA also erred regarding the Regulation by failing to distinguish between peaceful and violent protesters. Millions of Hong Kongers, of all ages, participated in protests last year without engaging in violence. To restrict their rights without evidence of wrongdoing is unjust.
Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.
Cheuk studied law at Cardiff University. He is currently pursuing postgraduate legal studies. His research interests are human rights and the rule of law in Hong Kong.
