Hong Kong mask ban has precedent in France – but not Europe as a whole

Stuart Lau

Hong Kong’s ban on face masks at protests could be similar to a law introduced in France this year – but other such restrictions in Europe had little force, according to legal experts.

Hong Kong is banning masks from Saturday to try to curb increasingly violent social unrest that has gripped the city for about four months – turmoil triggered by a now-shelved extradition bill that would have allowed the transfer of Hongkongers to mainland China’s opaque legal system.

The ban follows repeated calls from some pro-government politicians who said similar measures had already been adopted in Europe.

France introduced a ban on demonstrators wearing face masks earlier this year in response to the country’s “yellow vest” movement.

That ban was the result of the legislative process in the National Assembly while Hong Kong’s move stems from the executive powers conferred upon the chief executive by the colonial-era Emergency Regulations Ordinance.

Violators of the anti-mask law, which will be gazetted on Saturday, could face a jail term of up to one year or a fine of HK$25,000 (US$3,200).

A conviction under the law in France can lead to a one-year prison sentence and a 15,000 (US$16,450) fine. “Our supreme court said that this new law [complied] with our constitution,” Nicolas Catelan, a criminal law lecturer at Aix-Marseille University, said.

Like many people in Hong Kong, the French public were resistant to a mask ban because of the police’s use of force. The tactics used by French police have come under scrutiny, in particular the firing of “flash ball” riot guns, which have caused serious injuries, including at least one person being blinded in one eye. In Hong Kong, a journalist has been left blind in one eye after being shot in the face with a police projectile last Sunday, according to her lawyer.

French opposition lawmaker Charles de Courson said at the time that the French ban was worthy of France’s fascist one-party dictatorship during the second world war. “Where are we heading? You might think we’ve returned to the Vichy regime,” de Courson said.

The yellow vest movement erupted last November as a grass-roots protest against fuel taxes but morphed into a broader revolt against inequality and the presidency of Emmanuel Macron. It took its name from the fluorescent vests motorists in France carry in their cars.

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Ray Walsh, digital privacy expert at Britain-based ProPrivacy.com, said Hong Kong police might follow their French counterparts’ practice of tracking protesters with facial recognition technology.

“The ability to use facial recognition to identify protesters will permit the [Hong Kong] government to track down dissidents and prosecute them once the dust settles,” Walsh said.

Other European countries had enacted bans against protesters wearing face masks but they came with little to no punishment, analysts said.

Norway had a ban on face masks at demonstrations and other public gatherings under the Police Act, but it was not part of criminal law, Johan Boucht, professor of criminal law at the University of Oslo, said.

A police officer tries to remove a protester’s Donald Trump mask during a march in Hong Kong. Photo: Dickson Lee

“There is a marked difference between preventive measures for the purpose of maintaining law and order, and criminal law,” Boucht said. “It only gives ground for the police to intervene, but as to what action the police can take, it is a matter of proportionality depending on the circumstances.”

In Germany, where wearing masks during demonstrations has been forbidden since the 1980s, there are no jail terms for offenders and the fines do not normally exceed 300. If a large number of protesters defy the ban, German police disperse the crowd rather than make mass arrests.

Full-face coverings also become controversial in France and other parts of Europe for a different reason. Islamic veils such as niqabs and burkas were seen by some as a form of discrimination against women and violation of freedom of religion, with some countries banning them in public places.

A spate of attacks against civilians claimed by militant group Islamic State, notably in Belgium, France and Germany, sharpened the debate. A large influx of mainly Muslim migrants to the continent was also greeted by resentment among some Europeans.

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Last year, the Dutch upper house of parliament passed a law banning the wearing of face-covering veils in public buildings such as schools, government offices and hospitals.

Germany’s parliament had already backed a ban on full-face veils for civil servants, judges and soldiers, while Austria and Bulgaria have also banned facial coverings.

France’s veil ban was upheld in 2014 by the European Court of Human Rights. But the United Nations Human Rights Committee said last year that France’s ban on the niqab, the full-face Islamic veil, was a violation of human rights and called on it to review the legislation.

It said the ban disproportionately harmed the right of women to manifest their religious beliefs and could lead to them being confined at home and marginalised.

Additional reporting by Reuters

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