No more masks: The colonial-era law that gives Hong Kong leader sweeping powers

No more masks: The colonial-era law that gives Hong Kong leader sweeping powers

A man wearing a mask takes part in a protest in the Central district in Hong Kong
A man wearing a mask takes part in a protest in the Central district in Hong Kong on Oct 4, 2019. (Photo: AFP/Philip Fong)

HONG KONG: Hong Kong leader Carrie Lam on Friday (Oct 4) invoked a rarely used colonial-era law to ban protesters from wearing face masks.

What does the new law say and why does it matter?

WHY MASKS?

During the four months of protests, face masks have become ubiquitous as demonstrators try to avoid being identified by police. Respirators have also been used to deal with tear gas.

An anti-government protester is seen at Yoho Mall, near Yuen Long station, in Hong Kong
An anti-government protester is seen at Yoho Mall, near Yuen Long station, in Hong Kong on Sep 21, 2019. (Photo: Reuters/Jorge Silva)

The new law makes it illegal to wear a mask at a sanctioned or unsanctioned rally, with up to a year in prison for transgressors.

READ: Masked protesters barricade road in downtown Hong Kong

READ: Hong Kong leader Carrie Lam announces ban on face masks

Hong Kongers will still be allowed to wear face masks in the street - a common practice in a city ever since a SARS outbreak killed more than 300 people in 2003.

But police are allowed to force people to take their masks off, with six months in jail for those who refuse.

Exemptions have been made for legitimate religious and medical reasons and for those who need to wear masks for their jobs - such as journalists donning gas masks during tear gas clashes.

WHY IS IT SIGNIFICANT?

This is a watershed moment for Hong Kong. It is the first time in 52 years that these emergency powers have been invoked and the only time since the city was returned to China by Britain in 1997.

For the last few decades all of Hong Kong's laws have passed through the city's parliament, where they are discussed, debated and scrutinised.

Hong Kong protester wears a mask
A protester wears a mask in the Central area of Hong Kong, Oct 1, 2019. (Photo: AFP/Mark Ralston)

But the Emergency Regulations Ordinance allows the chief executive to bypass that legislature altogether.

Critics see this as a slippery slope and a move that undermines the city's reputation for being a commercial and legal hub built on rule of law and a trustworthy judiciary.

WHAT ARE THE PENALTIES?

Offenders will be subject to a fine of up to HK$25,000 (US$3,200) and can be jailed for up to a year, according to a statement from the Hong Kong government on Friday.

However, the prohibition excludes those with a "reasonable excuse for using a facial covering", including but not limited to pre-existing medical or health reasons, religious reasons, or if a person uses the face covering for safety while undertaking activities related to profession or employment.

Hong Kong protester Guy Fawkes mask
In this picture taken on Oct 1, 2019, a protester wears a Guy Fawkes mask on the back of her head as she displays protest art on to a traffic light pole in Hong Kong. (Photo: AFP/Yan Zhao)

If a person wearing a mask is asked to remove it by a police officer who "reasonably believes" the mask is "likely to prevent identification", and he or she does not obey, the maximum penalty is a fine of up to HK$10,000 and jail time of up to six months.

WHERE DID THIS LAW COME FROM?

It was first introduced by the British in 1922 to combat wildcat strikes by Chinese seaman who were protesting dismal wages.

Passed in a single day, it received little scrutiny and remained on the statute books.

READ: New protests as Hong Kong government invokes emergency powers, bans face masks

READ: Our coverage of the Hong Kong protests

The broad wording enables Hong Kong's leader to make "any regulations whatsoever" in the event of an emergency or imminent public danger.

Fire on Hong Kong street
A protester reacts as a fire burns during violent protests in the streets of Hong Kong, Oct 1, 2019. (Photo: AFP/Anthony Wallace)

The range of other powers available is extensive. It includes censorship of the media, control of ports, the appropriation of property as well as extra arrest, detention and deportation powers for the police.

The chief executive can also authorise searches without court warrants and the censorship and suppression of communications.

READ: What's next for Hong Kong's protest movement

The last time it was used was during the 1967 riots when more than 50 people were killed over the course of a year as leftists, with the help of the People's Militia from mainland China, conducted a widespread bombing and murder campaign.

WHAT MIGHT COME NEXT?

On Friday, Mrs Lam said she would consider making new regulations under the emergency law if the violence continued to escalate.

An anti-government protester attends a march in Tuen Mun, Hong Kong
An anti-government protester attends a march in Tuen Mun, Hong Kong on Sep 21, 2019. (Photo: Reuters/Jorge Silva)

But if that also fails to quell the unrest, there are two more options.

Article 14 of the Basic Law - Hong Kong's mini-constitution since its handover to China in 1997 - allows the local government to request help from the People's Liberation Army garrisons in the city in the event of a public order breakdown.

An anti-government protester holds a US flag during a rally at the University of Hong Kong
An anti-government protester holds a US flag during a rally at the University of Hong Kong, China on Sep 20, 2019. (Photo: Reuters/Jorge Silva)

The other option is Article 18, which allows China's National People's Congress Standing Committee to declare a state of war or a state of emergency. At that point, Beijing can make any law for Hong Kong it deems fit to deal with the crisis.

A protester uses an improvised slingshot at police in the Admiralty area in Hong Kong
A protester uses an improvised slingshot at police in the Admiralty area during a general strike in Hong Kong on Aug 5, 2019. (Photo: AFP/Anthony WALLACE)

Lam could also make concessions to protesters, such as meeting their demands for an independent inquiry into the police, an amnesty for those arrested and universal suffrage.

But she and Beijing have repeatedly rejected that idea.

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Source: AFP/ic(mi)

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