The High Court of the Hong Kong Special Administrative Region ruled on Monday that the Emergency Regulations Ordinance, Cap 241 (ERO) “is incompatible with the Basic Law of Hong Kong” and the Prohibition on Face Covering Regulation, Cap 241K (PFCR) imposed restrictions on fundamental rights that “go further than is reasonably necessary for the furtherance of those objects.”
ERO was passed in 1922 when Hong Kong was under British rule, which confers to the Chief Executive in Council (CEIC), on any occasion he may consider to be an occasion of emergency or public danger, the power “to make any regulations whatsoever which he may consider desirable in the public interest.”
Following months of protests in opposition to the Extradition Bill and “scenes of escalating violence and danger on the streets of Hong Kong not seen in half a century,” PFCR was made on October 4 pursuant to ERO and came into operation on October 5. The government stated that PFCR was invoked on the “public danger” ground only, not the “emergency” ground, and that Hong Kong was not being proclaimed to be in a state of emergency. According to the Security Bureau which recommended the regulation, there was “an urgent need to introduce the PFCR to facilitate police investigation and to serve as a deterrent against the violent and illegal acts of masked perpetrators.”
The court held that, since the Legislative Council of Hong Kong (LegCo) was the legislative body of Hong Kong SAR, as far 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 LegCo so precarious” that it is not compatible with the Basic Law.
With respect to the PFCR, the court applied a four‑step proportionality analysis that asks the following questions: (1) does the measure pursue a legitimate aim; (2) if so, is it rationally connected with advancing that aim; (3) whether the measure is no more than reasonably necessary for that purpose; and (4) whether a reasonable balance has been struck between the societal benefits promoted and the inroads made into the protected rights. The court ultimately held that while 3(1) measures are rationally connected to the pursuit of legitimate societal aims, sub-paragraphs (b), (c) and (d) of s 3(1) go beyond what is reasonably necessary and therefore do not pass the proportionality test.
The court did not decide whether the ERO was constitutional insofar as it relates to any occasion of emergency.