City’s mask ban an effective deterrence against rioters|Comment HK|chinadaily.com.cn

Raymond Li says the ordinance, which is neither draconian nor illegal, will help bring law-breaking protesters into line

As Hong Kong is gripped by four-month-long citywide protests initially triggered by a now-shelved extradition bill, and the protests morphed into a full-fledged anti-government movement, Hong Kong is in desperate need of ways to quell the current unabating political unrest, as violence against the police escalates and spreads to many districts in Hong Kong, posing grave safety concerns to most of our peaceful city-dwellers. As drastic times call for drastic measures, the mask ban introduced by our government on Oct 4 is a timely warning shot to all the masked perpetrators that their unlawful acts will no longer be condoned.

The Prohibition on Face Covering Regulation, which came into force at the beginning of Oct 5, bans people from concealing their faces, whether with a mask or paint, while attending any public gathering of more than 50 participants, any procession of more than 30 people, or any unauthorized assembly, subject to certain exemptions, such as for health, religious, professional or employment reasons. Journalists masked for protection while discharging their duties reporting the protests will be exempted. This anti-mask law empowers the police to stop and require anyone in public to remove his or her covering, and failure to comply may risk a fine of HK$10,000 ($1,275) and six months in jail.

Under such intense political circumstances, it comes as no surprise that the new anti-mask law, which was implemented with the Emergency Regulations Ordinance (ERO) being invoked through a negative vetting procedure like other subsidiary legislation, has drawn a fierce public outcry questioning its “constitutionality and draconian nature” as it is alleged to be contrary to provisions in the Basic Law, with two futile applications for an interim injunction against the anti-mask law being filed by the opposition. Even though the constitutionality question of the mask ban remains to be examined by the courts, the deterrent effect of the mask ban in quelling the violent protests should not be overlooked.

First, the Hong Kong chief executive’s power under the ERO, enacted in 1922, is not, as alleged by the opposition, unchecked and unfettered, as the power of the chief executive to make relevant regulations is qualified by “occasions of emergency or public danger”. In light of the escalating violence in protests for 18 consecutive weeks in Hong Kong, including attacks on police, arson, gasoline bombs, vandalism and damage to property, the targeting of MTR stations and employees, the attacks against businesses, and the targeting of bystanders or people with differing views, who would disagree that our society isn’t facing “occasions of emergency and public danger”?

Moreover, regarding the concern that the ERO was enacted in colonial times and that the regulation outlawing the covering of faces during public assemblies may have contravened the rights to assembly as enshrined in the Basic Law: First, there is no relevance of constitutionality of laws merely for their being enacted before the birth of the Basic Law; secondly, Hong Kong residents’ freedom of assembly, procession and demonstration set out in the Basic Law are not equivalent to the same civil right for someone to wear a mask. More importantly, the concept of human rights is never absolute as Article 19(3) of the International Covenant on Civil and Political Rights provides that the exercise of rights thereof are subject to laws necessary for the protection of public order.

Considering the more than 100 subsidiary pieces of legislation enacted by the negative vetting procedure according to the Interpretation and General Clauses Ordinance every year in Hong Kong, the anti-mask law, which is subsidiary legislation itself, can still be subject to scrutiny by the legislature, and amendments to the legislation are possible by resolutions passed by the legislature during the vetting period. Therefore, the critics saying that such a law was unconstitutional for bypassing the Legislative Council is nothing but a political scaremongering tale, overlooking the legality of the anti-mask law duly enacted under our local laws.

Apart from deterring younger protesters from taking part in unlawful acts in their mistaken belief that they could escape unscathed with their faces covered, the anti-mask law could effectively ringfence the peaceful protesters from the masked few who may elect to hijack the entire peaceful protest for their anarchist violent acts, putting the personal safety of not only the police, but also the peaceful protesters, at risk. In regards to police enforcement, the mask ban could necessarily reduce the difficulty of the police identifying and arresting all culprits from the flocking crowd at the spot, who will then be held accountable and responsible for their crimes committed.

Indeed, the anti-mask law itself is hardly novel and unprecedented, as similar legislation against the masked protesters has already been in place overseas for some time. For example, in response to the “yellow-vest” movement, France introduced a mask ban on demonstrators wearing face masks in nearly all situations in public earlier this year. A conviction for violating this law can lead to one year of imprisonment and a fine of 15,000 euros ($16,500). In Canada, masks or other disguises have been banned during a riot “without lawful excuse” since 2013, and anyone breaching the law faces up to 10 years in prison.

In short, it is evident that a mask ban in assemblies, public meetings and processions subject to certain lawful exemptions has a solid legal basis and is proportionate to striking a balance between ensuring people’s fundamental right to peaceful assembly and subduing violent protests with a view to restoring social order in Hong Kong. Indeed, the mask ban alone is not a magic bullet for the ongoing social unrest, as a slew of other social-political measures is required to allay the underlying public concerns. Let’s give the administration of embattled Carrie Lam Cheng Yuet-ngor more time to come up with a bag of “big bang measures” in the chief executive’s 2019 Policy Address to rekindle and reconnect the public on Wednesday!

(HK Edition 10/14/2019 page7)