When Chief Executive Carrie Lam announced a sweeping ban on face masks at protests earlier this month, Hong Kong’s streets quickly filled with people wearing paint, cartoon masks and even paper bags on their faces. The government had again failed at deescalating the situation, instead fueling the anger of protesters.
The mask ban was fast-tracked using the Emergency Regulations Ordinance (ERO), a colonial-era law whose implications are far-reaching and alarming. In fact, the invocation of emergency powers may have even more lasting consequences for security, law and order in Hong Kong than violence and tear gas in the streets.
The chaotic scenes being broadcast around the world belie the fact that the majority of Hong Kong’s protesters remain peaceful. The increasingly destructive nature of some protests is largely due to a violent minority’s frustration with political failures and virtually unchecked police abuse of power. The authorities’ approach of tightening restrictions is clearly not working, but using the ERO indicates they are doubling down on it.
The ERO, last used more than 50 years ago, is essentially a blank check for the government to restrict human rights without any conditions or safeguards. It could give the authorities the power to shut down social messaging apps and websites popular with protesters, or even impose a total Internet blackout, if they claim this is needed. It could allow for extended periods of detention—especially alarming given the well-documented abuse and even torture of arrested protesters.
The ERO expands powers to search premises and confiscate property and could enable the postponement of upcoming local elections. Many similar proposals have been publicly floated by pro-Beijing politicians, perfectly illustrating the slide into Beijing-style repression that brought Hong Kong protesters out in the first place.
What’s more, the present and proposed uses of the ERO do not withstand legal scrutiny. The powers it grants are traditionally reserved for a state of “public emergency which threatens the life of a nation.” International law allows for “derogations”—the temporary and drastic reduction in the level of some human rights protections—in limited exceptional situations. Even in these situations however, the protection against torture and other ill-treatment is absolute, as is the prohibition of arbitrary detention. Fundamental requirements of fair trials must also remain intact. In such a situation, Hong Kong’s legal system must fairly and impartially assess the legitimacy and legality of exceptional measures and provide redress for any breaches.
Confusingly, Lam has stated that Hong Kong is not in the kind of exceptional situation that could allow such extreme steps. Perhaps to bolster business confidence, she has stressed that Hong Kong is not in a “state of emergency” right now. Invoking an emergency law without an “emergency” looks very much like a government that wants to have its cake and eat it too.
The ERO is a deeply flawed piece of legislation. Taken at face value, it grants the passing of emergency regulations to the executive alone, it trumps all other laws, and there is no requirement for periodic review. In short, the ERO theoretically gives the Hong Kong government free rein to restrict human rights but provides no safeguards against abuse.
An attempt by pro-democracy lawmakers to halt the use of the ERO failed at preliminary hearings, but a fast-tracked judicial review is scheduled for Oct. 31. This will look at whether the century-old ERO is in line with the much newer Basic Law, Hong Kong’s mini-constitution, and other domestic law. It should also consider whether it is in line with international human rights law.
The Hong Kong government is aware of the ERO’s legal weak spots. In a report to the U.N., it acknowledged that the power granted under the emergency law “appears to be very wide” but confirmed that it was subject to Article 39 of the Basic Law, which embeds the U.N. International Covenant on Civil and Political Rights in Hong Kong law.
It is very possible that the government is using the mask ban as a canary in the coal mine for the ERO—a way to test which elements survive judicial scrutiny and guide future use of the sweeping powers granted by the emergency law’s wording. This is how prosecutions stemming from the Umbrella Movement operated—by building up a body of case law that could eventually be used to prosecute its leaders.
Instead of listening to protesters, deescalating the tension and trying to understand and address the root causes of the unrest, the government is abusing the law to quash protests and deter people from participating in the public sphere. This approach needs to be challenged, both nationally and internationally, to prevent an “emergency” situation from becoming Hong Kong’s new normal.