In the recent submission to the Hong Kong Legislative Council (LegCo)(Submission Full Text), AIHK submits that the current provisions of the Prohibition on Face Covering Regulation 2019 (the “Mask Ban”) are in violation of international human rights law and standards on the rights to peaceful assembly, expression and privacy.
AIHK urges the Hong Kong Government to withdraw the present Mask Ban, refrain from using Emergency Regulations Ordinance (ERO) for the purpose regulating the freedoms of peaceful assembly, and to amend ERO to bring it into line with Article 4 of the ICCPR and section 5 of the Bill of Rights.
AIHK submits that the Emergency Regulations Ordinance (ERO) is an outdated and deeply flawed piece of legislation. “The wording of the ERO essentially provides a blank cheque for the Government to restrict human rights without any conditions or safeguards.” said Man-Kei Tam, Director of AIHK.
“The near-total ban on the use of face coverings during any larger protests, whether peaceful or violent, lawful or unlawful under domestic law, as well as in other public places is excessive.” said Tam.
In the 17-page submission document, AIHK states that the Mask Ban has far-reaching repercussions for the human rights to privacy, dignity, health and protection against discrimination, as well as the rights of children. “The ban induces a deterring effect, not against violence but against the legitimate exercise of human rights.” Tam added.
Under international human rights standards, facial coverings in the context of protests should only be subject to prohibitions where an individua shows a clear intent to immediately engage in violence. In fact, international standards accept expressive intent(*) and the fear of retribution(**) as legitimate reasons for facial coverings during protests.
“The present protests are characterized by a climate of fear in which many protesters feel the need to wear facial coverings to protect their privacy, personal safety and health, and in order to avert arbitrary arrest and the excessive use of force by police during the protest.” said Tam.
European Commission for Democracy through Law / OSCE Office for Democratic Institutions and Human Rights (ODIHR), Guidelines on Freedom of Peaceful Assembly (3rd edition 2019), Explanatory Notes, para. 153.
UN Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/HRC/26/29, 14 April 2014; European