Hong Kong’s ban on face-covering at protests has been ruled unconstitutional with the High Court saying that it “goes further than necessary” in the restriction of fundamental rights.

The judgment on Monday came as an unexpected blow to the administration of Chief Executive Carrie Lam, who invoked the colonial-era Emergency Regulations Ordinance (ERO) to enact the mask ban without legislative oversight.

October 20 anti-mask Guy Fawkes protest Tsim Sha Tsui
Photo: May James/HKFP.

The court also ruled that the ERO was partially unconstitutional as sections of the law that empower Hong Kong’s leader to make laws “on any occasion of public danger” are incompatible with the Basic Law.

After the ruling, the government said that it would stop enforcing the ban for the time being.

The court will hear arguments on Wednesday to decide what further actions will be taken over the ban.

In their 106-page judgment, Court of First Instance judges Godfrey Lam and Anderson Chow ruled that the mask ban failed the proportionality test – the yardstick for measuring whether a restriction of human rights was constitutional.

The judges said they were not opposed to all forms of mask bans, but took issue with the version implemented by the Hong Kong government – known formally as the Prohibition on Face Covering Regulation (PFCR).

high court
File photo: Holmes Chan/HKFP.

The section that granted authority to police to remove a person’s mask came under particularly strong criticism from the court.

“The power may, on its face, be used by a police officer for random stoppage of anyone found wearing a facial covering in any public place,” the court said, adding that the measure had “remarkable width.”

“There is practically no limit on the circumstances in which the power under that section can be exercised by a police officer,” the court said, as long as the person is in a public place and the facial covering is reasonably believed by police to be likely to prevent identification.

“We consider it to be clear that the measure… exceeds what is reasonably necessary to achieve the aim of law enforcement, investigation and prosecution of violent protesters even in the prevailing turbulent circumstances in Hong Kong, and that it fails to strike a reasonable balance between the societal benefits promoted and the inroads made into the protected rights.”

Judge Anderson Chow Ka-ming
Anderson Chow Ka-ming. File photo: GovHK.

The judges also noted that the mask ban covered both unlawful gatherings and “perfectly lawful and peaceful public gatherings,” and there was no mechanism to distinguish the two.

Under the anti-mask law, offenders upon conviction could be sentenced to a year in jail and a fine of HK$25,000.

Emergency legislation found unconstitutional

On October 4, Lam enacted the mask ban unilaterally by invoking the ERO – the colonial-era law that grants the city’s leader and her council of advisors wide-ranging powers to “make regulations on occasions of emergency or public danger.”

The 24 pro-democracy lawmakers behind the legal challenge also condemned the ERO, saying that it went against the separation of powers by circumventing the legislature.

Godfrey Lam
Godfrey Lam. File photo: GovHK.

Judges Lam and Chow on Monday sided with the lawmakers, ruling that the ERO was at least partially unconstitutional.

“It is the power and function of the Legislative Council as the designated legislature of the Hong Kong SAR to legislate,” the court said, adding that any other bodies could only be given the power to make subordinate legislation.

“Insofar as the public danger ground is concerned, the ERO is so wide in its scope, the conferment of powers so complete, its conditions for invocation so uncertain and subjective, the regulations made thereunder invested with such primacy, and the control by the [Legislative Council] so precarious, that we believe it is not compatible with the constitutional order laid down by the Basic Law.”

august 17 kowloon hung hom china extradition (15)
Photo: May James/HKFP.

While the “public danger” ground was ruled unconstitutional, the court did not express any view on whether the chief executive could invoke the ERO under the alternative ground of “emergency.”

Lam and Chow added that the measures adopted under the ERO must still comply with the Bill of Rights – which supplants conflicting laws to protect human rights – except in “public emergencies” as defined under section 5 of the Bill of Rights Ordinance.

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Holmes Chan is a reporter at Hong Kong Free Press. He covers local news with a focus on law, politics, and social movements. He studied law and literature at the University of Hong Kong.