1. 香港特別行政區政府已根據《緊急情況規例條例》（下稱《緊急法》）制訂《禁止蒙面規例》（下稱《禁蒙面法》），並將於2019年10月5日凌晨起實施。《禁蒙面法》禁止任何人在身處合法集會和遊行 、非法或未經批准集結或暴動時，完全或部分遮掩面部。「蒙面物品」的定義包括手術面罩、防毒面具，及其他物料例如顏料。《禁蒙面法》亦賦予警務人員權利要求任何人除去蒙面物品。
7. 而更不公義和無理的是，根據保安局局長說法，警務人員將獲豁免於《禁蒙面法》下禁令。在過去的四個月以來，這座城市見證了執法方越來越暴力和濫權的行為。 《禁蒙面法》的傾側性有機會使警務人員更無後顧之憂，並鼓勵他們越加暴力以鎮壓本來就一直要求警隊問責的示威者。
Statement on the Hong Kong SAR Government Invoking the Emergency Regulations Ordinance
1. The Hong Kong SAR Government has invoked the Emergency Regulations Ordinance (“ERO”) to implement the Prohibition on Face Covering Regulation (“PFCR”) which will come into force at midnight on 5 October 2019. The PFCR will ban anyone from covering their faces in full or partially for mere presence in lawful rallies and marches, unlawful or unauthorised assemblies, or riots. The definition of “covering” includes surgical masks, gas masks, and other materials such as face paint. The PFCR also gives the police the power to order anyone to remove such covering.
2. The ERO is an outdated and vague piece of legislation that dates back to the 1920s. Its outdatedness makes it non-compatible with modern notions of civil liberties and rule of law. Its vaguesness confers enormous discretionary powers to the executive branch, which in turn makes it open to abuse especially in the current political climate where the government is under mounting pressure to put an end to the social unrest at any cost.
3. The ERO grants extensive powers to the executive branch to enact any regulation on the pretext of “public emergency” and “serious public disorder,” neither is defined under the ERO and can be broadly interpreted. More disconcertingly, the ERO contains no sunset clauses or other limits as to when such emergency or disorder would cease to exist. These decisions are to be made solely by the Chief Executive in council, who may go on to enact other regulations on a similar pretext, including curfew, martial law, censoring of social media and other communications or seizure of personal property. This slippery slope raises serious accountability and abuse of power concerns.
4. The PLG believes that the invocation of the ERO bypasses the legislative branch and undermines the constitutional checks and balances on the executive branch. The government’s move represents a brazen disregard of the Legislative Council and further erodes Hong Kong’s well-established separation of powers.
5. More crucially, the invocation of the ERO does nothing to quell the current social unrest or address the protesters’ demands that have fueled months of violent clashes with the police. If anything, the PFCR will incite protesters even more and lead to further escalation of the movement.
6. Contrary to the government’s claim that the PFCR is aimed at addressing violence, the fact that it applies equally to peaceful and violent demonstrators is a direct contraditon of that pretext. This is especially troubling considering that nonviolent protest participants are facing increasing pressure and threats of reprisal from their employers and are subject to random mobile phone checks at mainland border controls. Furthemore, without face masks, participants will be more exposed to tear gas and pepper spray during street demonstrations, both of which contain harmful toxants with potentially long term health effects. As such, the PFCR is expected to have a chilling effect on even legal protests and violate citizens’ right to privacy and freedom of assembly.
7. What is more unjust and arbitrary is that according to the Secretary for Security, the PFCR exempts police officers from the face covering ban. Over the past four months, the city has witnessed increasingly violent and abusive behaviour on the part of law enforcement. The one-sideness of the PFCR may result in increased impunity among officers and encourage them to step up violent crackdown of protesters who, apropos, have been demanding a more accountable police force among other things.
8. Broad and unchecked powers beget abuse, and any abuse of power threatens the rule of law. The invocation of the ERO today is a signal that the current administration is not interested in engaging the public in a constructive dialogue but that it continues to rely on the blunt instrument of law enforcement to solve a political crisis, even at the cost of tarnishing Hong Kong’s reputation as a free port and financial hub.
9. The PLG calls on the government to immediately withdraw the PFCR and issue an apology for such an ill-conceived and unjustified attack on the rule of law and civil liberties.
The Progressive Lawyers Group
4 October 2019