Remedial Discretion and the Prohibition on Face Covering Regulation

50(2) Hong Kong Law Journal 569, 2020

16 Pages Posted: 5 Dec 2020

See all articles by Po Jen Yap

Po Jen Yap

The University of Hong Kong - Faculty of Law

Zixin Jiang

The University of Hong Kong - Faculty of Law

Date Written: 2020

Abstract

In this article, we make the following arguments in relation to the Court of First Instance (CFI) and Court of Appeal (CA) decisions on the constitutionality of the Emergency Regulations Ordinance (Cap 241) (ERO) and the Prohibition on Face Covering Regulation (Cap 241K) (PFCR). First, the CFI should have granted a Suspension Order vis-à-vis the ERO so as to allow the police to enforce s 3(1)(a) of the PFCR — a provision the CFI deemed proportionate — until the final resolution of the appeal. Second, the CA’s reasons for upholding the constitutionality of the ERO are flawed as the CA has conflated public dangers with public emergencies, and the putative judicial safeguards identified are illusory in nature. Third, the CA in effect applied Remedial Interpretations (RI) to impugned legislation in four instances without expressly declaring the law unconstitutional: (1) RI was applied to the ERO such that the Chief Executive in Council is disempowered from amending or suspending its statutory duty to place all subsidiary legislation before the Legislative Council for vetting and repeal by resolution; (2) RI was applied to the ERO such that regulations made under the ERO cannot derogate from the Hong Kong Bill of Rights (Cap 383) unless a public emergency is officially proclaimed, the derogation is strictly required by the exigencies of the situation and non-derogable rights are unaffected; (3) RI was applied to the Public Order Ordinance (Cap 245) such that minor non- compliance with conditions issued by the police would not per se turn a procession into an unauthorised assembly; and (4) RI was applied to s 3(1)(b) of the PFCR such that the facial covering prohibition would not apply to mere passers-by present at the scene of an unauthorised assembly.

Suggested Citation

Yap, Po Jen and Jiang, Zixin, Remedial Discretion and the Prohibition on Face Covering Regulation (2020). 50(2) Hong Kong Law Journal 569, 2020, Available at SSRN: https://ssrn.com/abstract=3680636 or http://dx.doi.org/10.2139/ssrn.3680636

Po Jen Yap (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01274

Zixin Jiang

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

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