International law aspects of the CFI decision “In the matter of the Emergency Regulations Ordinance and the Prohibition on Face Covering Regulation”

When the Court of First Instance (CFI) on 18 November 2019 ([2019] HKCFI 2820) ruled both the use of the Emergency Regulations Ordinance (ERO, Cap 241) and the “Prohibition of Face Covering Regulation” (PFCR, Cap 241K) to be unconstitutional, the judgment contained many notable features. The court concluded that the allocation in the ERO of de facto legislative powers to the executive for situations of public danger violated the separation of powers under the Basic Law, as well as that the near-total prohibition of masks and other facial coverings both “at” assemblies and in other “public places” was a disproportionate infringement of the freedoms of expression and assembly and the right to privacy. Particularly noteworthy for the international lawyer was the prominent use of international and comparative law by G Lam and A Chow JJ. This is very fitting not only for an open judiciary in an international city like Hong Kong, but also because the government itself had referenced several examples from other countries in arguing that “similar” mask bans were actually quite common.

This comment focuses on some international law aspects of the CFI judgment and specifically looks at these comparative examples and other relevant international standards. The view submitted here is that the court’s findings are very much in line with international human rights law and, if one looks closely, the references to foreign law introduced by the government. However, one important caveat will be raised.

APPLICATION OF THE EMERGENCY REGULATIONS ORDINANCE IN CASES OF “PUBLIC DANGER”

No issue is taken with the CFI’s finding that the use of the ERO in the present scenario is wholly inappropriate. That 1922 piece of legislation gives the executive virtually a free hand in curbing oversight by other branches of government and the human rights of people in Hong Kong. The court’s finding that even the 1920 UK Emergency Powers Act is far more limited is a case in point. In particular, it is agreed that any piece of emergency legislation, should it ever be necessary and appropriate, must include time limits and a mechanism for effective and periodic review. Importantly, the court states that outside of cases of actual public states of emergency in the international law sense – such as in cases of “public dangers” as purported here – individuals’ rights are not suspended in any way but “the usual principles” apply in full.

This only reflects what the government itself already confirmed in 1999 to the UN Human Rights Committee – the body tasked with overseeing the implementation of the International Covenant on Civil and Political Rights (ICCPR) by the states parties: namely, that any application of the ERO would be in line with the ICCPR (as per Article 39 of the Basic Law) and, in particular, that treaty’s Article 4 on “states of emergency” (implemented by Article 5 of the Hong Kong Bill of Rights Ordinance, Cap 383). Although the Committee asked for more details, at no point did the government indicate that legislation under the ERO in cases of “public danger” would be subject to a separate framework, apart from those either for “states of emergency” or the normal human rights rules, but instead somehow falling in between. In further reviews since, the government has always only referred to the 1999 statements in general terms without any elaboration. This was again the case in its most recent state report submitted to the Committee in the midst of the protests in September 2019. It is highly likely that the Committee will now more urgently re-pose questions on the ERO when Hong Kong’s implementation of the ICCPR is discussed again in 2020.

INTERNATIONAL CASE LAW AND STANDARDS

The judgment goes far in discussing international authorities. As is common in Hong Kong, the court analysed case law under the European Convention of Human Rights (ECHR) and from other common law jurisdictions. Moreover, the judges took into account views by the Human Rights Committee in a case under its individual complaints procedure (Yaker v France, 2018); one if its “General Comments” (No. 29 on “States of Emergency”) that provide authoritative guidance on interpretation of the ICCPR; and the 1984 “Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR”. The General Comment and Siracusa Principles may not be legally binding but are nonetheless authoritative sets of principles drawn up by international legal experts. The judges even referenced, though dismissed, a case from the Inter-American Court of Human Rights cited by the applicants.

This exemplary approach demonstrates not only that international law should be part and parcel of any consideration of a human rights question in Hong Kong, as mandated by Article 39 of the Basic Law, but also that today’s legal systems no longer operate in a legal “closed shop”. International trust is earned by letting in outside scrutiny and demonstrating that one is willing to play by international rules.

Further international authorities support the CFI’s findings that there must be some limitations on “mask bans” and a case-by-case evaluation. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association already in 2014 pointed to “legitimate and non-criminal reasons for wearing a mask or face covering during a demonstration, including fear of retribution.” He and another independent UN expert, the Special Rapporteur on extrajudicial, summary or arbitrary executions, stated in 2016 that assemblies and their participants should be assumed to be peaceful, rather than posing a threat to public order, and that the authorities have to demonstrate the opposite for specific cases. Blanket restrictions in the context of assemblies would carry the risk of being intrinsically disproportionate and discriminatory. This clashes with an approach in which essentially all participants in all assemblies, and even individuals away from assemblies in other “public places”, are put under a general suspicion of being involved in violent or otherwise unlawful activity.

The “Guidelines on Freedom of Peaceful Assembly” of the Organization for Security and Co-operation in Europe (OSCE) is a regional set of international standards that broadly reflect international consensus and good practice and are based on the laws of many countries the Hong Kong government has referenced in the present discussions. Under the 2010 edition of the OSCE Guidelines, masks, especially those worn for expressive purposes, should not be prohibited unless the individual’s conduct creates probable cause for arrest and the mask poses “a clear and present danger of imminent unlawful conduct.” In other words, again, no general suspicion is allowed in the form of routine restrictions, absent other indicators of criminal conduct.

The court in its judgment rightly discussed the present issues in the context of their potentially severe consequences for the rights to freedom of expression, peaceful assembly and privacy, as well as to liberty and freedom of movement. To this could be added the rights to dignity, health and protection against discrimination. Specifically in the Hong Kong context, however, it is somewhat surprising that no reference is made to the rights of children. A prominent feature of the Hong Kong protests has been the high number of young participants, many of whom frequently wear masks. Of the almost 7,000 people arrested since the large-scale protests started in June 2019, close to 1,000 are under the age of 18. According to media reports, more than 630 people had been arrested for offences under the PFCR by the time of the CFI judgment in mid-November, with more than 60 charged but not yet convicted.

Under the UN Convention on the Rights of the Child (CRC), which applies to Hong Kong just as the ICCPR, children – i.e., all persons under 18 – enjoy the rights to freedom of expression, association and peaceful assembly (Articles 13 and 15 of the CRC), as well as to privacy (Article 17). Most importantly, the authorities must always treat the best interests of the child as a primary concern (Article 3). This should be a paramount balancing factor when, for example, disallowing face masks that are worn by children during protests for health or expressive reasons, or when whole groups of children on their way to school are stopped and searched. Children also enjoy particular rights to be protected against being photographed in an identifiable manner without their or their parents’ or guardians’ consent. This would be another addition to the list of legitimate exceptions that would have to accompany any ban on facial coverings that is supposed to be compatible with international human rights law, as will be shown next.

“COMPARATIVE” MASK BANS

The government in its original LegCo communications referred to “similar” bans in other countries. This discussion does not feature prominently in the CFI judgment, but a closer look at those provisions and their application in practice quickly show that these comparators in fact support the court’s conclusions more than the government’s case. To start with, none of the cited laws were introduced as some form of emergency measure, but all – except two Canadian local regulations – were subject to full parliamentary scrutiny before adoption.

In the public discussion, Canada is referenced most often, along with the fact that the criminal code there even allows up to 10 years’ imprisonment. But this overlooks the point that the Canadian provisions cited by the government only spell out aggravating factors for people already guilty of intending to commit other crimes involving violence.

That means wearing facial coverings is not an offence by itself. The CFI judgment cites one recent Canadian precedent (Villeneuve v Montreal (City of), 2016 QCCS 2888) that held a self-standing local by-law from 2012 to be incompatible with the rights to freedom of expression and assembly. In addition, already in 2005 the Superior Court of Quebec had struck down another municipal regulation in the form of a 19th-century mask ban in Quebec City. According to these decisions, the respective bans were excessive, unreasonable and arbitrary because they were too broad, applying to all situations without exceptions and giving too much discretion to the police for assessing any potential violations.

In the public LegCo hearings on 9 November 2019, to which Amnesty International Hong Kong made submissions, some participants also raised examples of prohibitions on facial coverings in numerous US jurisdictions. Again, a closer look establishes that these are mostly historic bans that often relate to the wearing of masks by organizations such as the Ku Klux Klan. Courts upholding those bans often did so because they did not see the messages of racial discrimination conveyed by these masks as protected by freedom of speech under the US constitution. This seems a far cry from the tinted glasses, scarves and surgical and anti-teargas masks protesters in Hong Kong are now commonly wearing.

Other elements missing from the government’s further cited comparisons include that often a direct connection is required between the wearing of a facial covering and an actual or likely imminent disturbance of public order or safety during assemblies (for example, in Austria, Denmark, France and Sweden). Some jurisdictions also accept that the fear of reprisals, in one way or another, can constitute a legitimate reason for covering one’s face (for example, Austria and Norway). In contrast, while allowing in general terms for a defense of having “lawful authority or reasonable excuse” for using facial coverings, the explicit exceptions contained in s. 4 of the PFCR (professional, religious and medical requirements) are very limited and vague, and they do not apply to the wearing of masks in “public places” away from assemblies (s. 5). It appears the Hong Kong government, when studying these comparative law precedents, decided only to “import” the banning principles without their numerous limitations and exceptions, which only supports the CFI’s ruling that the bans in s. 3 and s. 5 of the PFCR are over-broad.

The German example is an illustrative case study of legislation with comparable width to that of the Hong Kong PFCR. That ban on “covering up” (“Vermummungsverbot”), in force since 1989, is not absolute but very broad. And likely that is the reason that its application in practice is rare (as is also the case in Denmark and Sweden). The Legislative Research Service of the German federal parliament has noted that the ban is rarely enforced and constitutionally problematic in light of its potential deterrent effect on protesters’ basic rights and the law’s vague terms. This means (and German case law has supported this view) that at the very least the law has to be narrowly interpreted (“read down”) – for example, by allowing covering up during peaceful protests; by requiring a reasonable connection to violence; and by making adequate allowances for when the covering is part of the expressive intent. It is assumed that prosecutors know this and hence refrain from bringing cases that are only backed by the law’s broad wording.

GOVERNMENTAL DISCRETION

The last point may appear as a legal technicality but in fact goes to the heart of what seemingly will be the government’s main argument on appeal: namely, that of an “executive-led” government which should be given much latitude, especially in handling “emergency” situations. Lam and Chow JJ arguably provided some backing for this argument by their reference to the “wide margin of discretion” that should be afforded to governments when assessing the need to restrict unlawful or even violent conduct. However, the one issue this observer would have with the CFI judgment, respectfully, is that this, in fact, is a misleading reference to the ECHR doctrine of “margin of appreciation”, as the cited case by the European Court of Human Rights Kudrevičius v Lithuania (2016) 62 EHRR 34 indicates.

It is a common occurrence, by no means limited to legal discussions in Hong Kong, to construe “margin of appreciation” as allowing broad executive discretion. However, this is conflating two different concepts since this doctrine, created by the European Court, technically applies to the relationship between domestic state institutions and international courts and tribunals. It is well accepted that the latter should exercise restraint in principle – also depending on other factors, such as the nature of the human right in question etc. – when reviewing domestic decisions. Domestic institutions, be it the executive, legislature or judiciary, are normally better placed to assess local specificities and undertake local fact-finding and are thus afforded the benefit of doubt (to some extent) and a measure of diversity for the resulting decisions. The doctrine applies just as well to proceedings before other international bodies, such as the UN Human Rights Committee.

However, this restraint is not automatically replicated when domestic courts review executive or legislative actions within the same legal order, as accepted under the national division and balance of power. In international law, all domestic branches of government are under the obligation to respect, protect and promote a jurisdiction’s human rights obligations, and the state is seen “as one”. That the European Court in a specific case left it to the relevant national order – in toto – to make a decision under the “margin of appreciation” doctrine does not mean that the local courts must exercise an identical degree of restraint when reviewing executive action. In fact, local courts are often ideally placed to subject governmental action to close scrutiny, with a level of detail that would seem improbable for international courts, and to effectively assure the enjoyment of human rights as recognized under international treaties such as the ICCPR. And even where jurisdictions recognize different degrees of judicial “deference” to the executive, it is generally accepted that this must be minimal where the human rights to freedom of expression and peaceful assembly are involved.

Separation of powers as an argument already figured prominently in the judicial discussions on the ERO. But it should also not be ignored when considering the PFCR. This principle protects against excesses or even abuses of power by any one branch of government. It demands that any limitation of human rights has a proper legal basis. And it continues to apply in cases of states of emergency, demanding effective judicial oversight there, too, and therefore a fortiori in “lesser” cases.

CONCLUSION

It is a universally accepted principle that a government desiring to curb the exercise of human rights carries the burden to demonstrate that this is necessary and proportionate. Rather than telling the courts to limit their scrutiny, as implied by an emphasis on discretion and the thesis of an “executive-led” government, the authorities should ensure that any measure passes the strictest tests. As the Court of First Instance judgment clearly shows, this must include a detailed look at the international human rights framework.

Senior Legal Advisor at Amnesty International. He is admitted as an attorney-at-law (Rechtsanwalt) to the bar in Germany.