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Why Hong Kong’s ill-thought-out mask ban is headed straight for a legal slugfest

You would think that a government devoted to the rule of law would be more careful. The ban on face masks is heading straight for trouble.

The government is relying on the right conferred on the Governor-in-council (now the Chief Executive in Council) to make emergency regulations by the Emergency Regulations Ordinance.

This dates back to long ago in the 1920s. It was intended to deal with a dock strike. The implication of this from a legal point of view is that it is superseded by any subsequent legislation which contradicts it.

Carrie Lam

Carrie Lam. File Photo: inmediahk.net.

Presented with the question of the Bill of Rights Ordinance, which explicitly states that it over-rules any previous legislation with which it conflicts, the official spokespeople produced a well-researched reply about the conditions under which a piece of legislation might be held to contravene, or not contravene, that Ordinance’s efforts to protect freedoms of speech and assembly.

Presented with the bit of the Basic Law which says that only the Legislative Council may make laws in the Special Administrative Region, they floundered.

Mrs Carrie Lam said it was subsidiary legislation and like other subsidiary legislation it would in due course be presented to the Legislative Council, which might approve or disallow it.

October 1 national day march Cuaseway Bay Wan Chai Admiralty protest

File photo: Holmes Chan/HKFP.

But this does not help at all. If the Basic Law says that only the Legislative Council may make laws for the Hong Kong Administrative Region then the part of the Emergency Regulations Ordinance which allows other people to legislate has been over-ruled. The Executive Council cannot claim from the old colonial legislature a right to make regulations now in violation of the Basic Law.

Consequently the new regulation must be doomed. It is, of course, open to the current legislature to delegate the power to enact emergency regulations to the Chief Executive in Council or anyone else. But it has not done so. So the ban on face masks has no master piece of legislation to be subsidiary to.

No doubt the government expects that its tame majority in the Legislative Council will approve the new regulation. But that will not let it off the hook. If there is no master legislation then the new rule is not subsidiary and will need to go through the whole legislative process before it takes effect.

legco storming Monday July 1

File photo: May James.

In the meantime attempts to secure convictions for wearing face masks will produce, at best, a long constitutional wrangle and at worst a flat defeat for the prosecution.

Of course we must not under-estimate the deterrent effect on potential rioters of the prospect of a long court case. But I don’t think that was quite what the government had in mind.


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Why Hong Kong's ill-thought-out mask ban is headed straight for a legal slugfest