HKG's Comments on the Consultation Document to amend the
Societies Ordinance and the Public Order Ordinance
Executive Summary |
At the request of the Office of the Chief Executive (CE) Designate, the
Hong Kong Government has agreed to allow copies of the consultation
document on amending the Societies Ordinance (SO) and the Public
Order Ordinance (POO) to be made available to members of the public
through District Offices. By so doing, we hope to give the public every
opportunity to express their views on this very important issue.
This arrangement does not in any way imply changes in our position on
the issue. Our position, which is t hat the existing provisions of the SO
and POO do not call for any changes as they are fully consistent with
the International Covenant on Civil and Political Rights (ICCPR) and
with the Basic Law (BL), is well known. They have struck a balance
between the protection of civil liberties and the need to maintain social
order.
We consider the following to be key points in respect of the consultation
document
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1. The proposed amendments are alleged to be necessary because the current law is inconsistent with the BL but the consultation document does not identify a single contravention of the BL. 2. The existing law is, in our view, fully consistent with the ICCPR and the BL, and no amendments are needed to bring it into line with these instruments. 3. The consultation document does not adequately justify the amendments, which will significantly increase the power of the executive to restrict the fundamental freedoms of assembly and association. 4. It is no answer to say that the proposed restrictions are based on grounds permitted by Articles 21 and 22 of the ICCPR. These articles allow restrictions only if they are necessary in the interests of national security etc. And restrictions are only necessary if there is a real need for them to be introduced to combat a particular mischief. |
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5. The Standing Committee of the National People's Congress objected to "major amendments" made to the Societies Ordinance and Public Order Ordinance, yet some of the proposals are to introduce restrictions that did not previously appear in those Ordinances. 6. Reliance on the wording of the ICCPR in the context of POO and SO is also inappropriate because of the broad terminology used. Unless restrictions are carefully defined, the executive will have an unacceptably broad discretion to prohibit activities. |
Hong Kong Government
10 April 1997
HKG's Comments on the Consultation Document to amend the
Societies Ordinance and the Public Order Ordinance
1.
At the request of the Office of the Chief Executive (CE)
Designate, the Hong Kong Government has agreed to allow copies of the
consultation document on amending the Societies Ordinance (SO) and the
Public Order Ordinance (POO) to be made available to members of the
public through District Offices.
2.
We wish to emphasize that this arrangement does not in any
way imply changes in our position on the issue.
Our position is well
known. The existing provisions of the SO and POO do not call for any
changes as they are fully consistent with the International Covenant on
Civil and Political Rights (ICCPR) and with the Basic Law (BL). They
have struck a balance between the protection of civil liberties and the need
to maintain social order.
3.
Nor is there any practicable requirement for changes. Both
Ordinances have been operating smoothly and are well accepted by the
public. There has been no sign of any deterioration of law and order since
the two Ordinances have been amended. On the contrary, the crime rates
have been falling - the 1996 being the lowest in the past 15 years.
4.
The community has expressed widespread and serious concern
over the decision of the Standing Committee of the National People's
Congress to repeal, among other things, certain sections of the POO and
the SO. The CE Designate has made clear his intention to consult the
community widely on this issue.
5.
We hope the resulting legislative proposals will reflect the
wish of the community to preserve civil liberties in line with the provisions
of the ICCPR as applied to Hong Kong. The continued application of the
ICCPR is guaranteed in the Joint Declaration (JD) and the BL. We firmly
believe that Hong Kong people can be trusted to exercise the rights and
freedoms provided for in the ICCPR in a responsible and law abiding
manner.
6.
In making the arrangement, we have let the CE Designate
know that we will provide our comments on the consultation paper which
will also be made available to the public through District Offices.
Our
comments are now set out below.
Key Points
7.
We consider the following to be key points in respect of the
consultation paper.
The proposed amendments are alleged to be necessary because the
current law is inconsistent with the Basic Law, but the consultation
paper does not identify a single contravention of the Basic Law.
The existing law is, in our view, fully consistent with the ICCPR and the
BL, and no amendments are needed to bring it into line with these
instruments.
The consultation paper does not adequately justify the amendments,
which will significantly increase the power of the executive to restrict
the fundamental freedoms of assembly and association.
The Standing Committee of the National People's Congress objected to
"major amendments" made to the Societies Ordinance and Public Order
Ordinance, yet some of the proposals are to introduce restrictions that
did not previously appear in those Ordinances.
8.
The paper proposes that the executive can prohibit societies
and public processions on the grounds of "national security", the
"protection of public health or morals", or the "protection of the rights and
freedoms of others." It is axiomatic that laws should not be enacted unless
there is a problem that needs to be solved or prevented. But the paper does
not identify any problems that societies or public processions have caused
in this respect, beyond mentioning a few incidents that the current law
caters for adequately.
9.
It is no answer to say that restrictions on these grounds are
permitted by Articles 21 and 22 of the ICCPR.
These articles allow
restrictions only if they are necessary in the interests of national security
etc. And restrictions are only necessary if there is a real need for them to
be introduced to combat a particular mischief. The consultation document
fails to demonstrate any such need.
10.
Reliance on the wording of the ICCPR in the context of these
two Ordinances is also inappropriate because of the broad terminology
used. For example, it is acceptable for an international covenant to permit
laws to be made that restrict certain freedoms "for the protection of the
rights and freedoms of others". But when domestic legislation is prepared
in respect of those freedoms, it should specify which "rights and freedoms
of others" may override the freedoms. If this is not done, the executive has
an unacceptably broad discretion to prohibit activities.
Under the
proposals in the consultation paper, for example, almost any peaceful
public procession could be prohibited because it may cause inconvenience
to people in the vicinity.
11.
The Bill of Rights Ordinance (BORO) is entirely consistent
with the BL. It incorporates into Hong Kong law the provisions of the
ICCPR as applied to Hong Kong. The continued application of the ICCPR
to Hong Kong is specifically provided for in the BL. The BORO has no
overriding status in relation to the BL.
12.
The Administration does not agree that the non-adoption or
repeal of the three provisions of the BORO will not lead to any legal
vacuum or dilution of rights and freedoms. At the very least it will lead to
uncertainty about the extent to which the common law principles reflected
in those provisions should be applied by the courts.
At worst, it will
preclude people from successfully challenging pre-BORO legislation.
13.
If it is intended that the repeal of the three sections should not
diminish rights and freedoms, this should be made clear by the addition of
an express provision having this effect in the BORO.
14.
The notification system in the present Societies Ordinance
allows freedom of association while at the same time providing the
Commissioner
of
Police
("the
Societies
Officer")
with
adequate
information regarding the nature of societies, and the Secretary for
Security with power to prohibit the operation of particular societies that
threaten security or public order.
15.
The consultation paper fails to provide any convincing
justification for reintroducing a registration system.
The claims that
without such a system it will be more difficult for the Societies Officer to
obtain additional information on societies, and the likelihood of non-
enforcement is higher, are groundless. There is no need to reintroduce a
registration system to replace the notification system.
16.
The consultation paper proposes that the Societies Officer may
refuse to register a society if he reasonably believes that such refusal is in
the interests of "national security", the "protection of public health or
morals", or the "protection of the rights and freedoms of others". Such
restrictions go beyond what is necessary and, indeed, go further than the
pre-1992 version of the Societies Ordinance. No convincing justification
has been provided for such broad powers. As is explained in paragraph 9
above, it is no answer to say that restrictions on these grounds are
permitted by the ICCPR.
17.
Regarding ties with foreign political organisations, restrictions
on such ties will only be consistent with the ICCPR if they can properly be
considered necessary to achieve one or more of the purposes listed in
Article 22 (i.e. national security etc).
18.
It is unclear from the consultation paper whether the proposed
restrictions on foreign links are to be assessed by reference to Article 22
considerations or independently of them.
If it is the latter, then the
proposals are likely to be inconsistent with the ICCPR. It is difficult to see,
for example, how the mere acceptance of financial assistance from an alien
or foreign political organisation, or the mere affiliation with a foreign
political organisation, could of itself, be a valid ground under the ICCPR
for prohibiting an association of people through the refusal or cancellation
of registration.
19.
The proposal that registration of a society could be refused
because an "alien" gives financial support to the society's political activities
goes beyond Article 23 of the BL and is unjustified. It cannot be justified
by reference to Article 16 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (cited in footnote 3 on page
10 of the consultation paper), which relates to restrictions on the political
activities of aliens. The proposal would restrict the activities of all people
in Hong Kong.
20.
Under the BL a non-Chinese national who has the right of
abode is permitted under BL 26 to take part in political activities in the
HKSAR, including voting and being elected. There is no reason to debar a
society from accepting financial contribution from such a person.
21.
In addition to the legal objections to the proposal concerning
aliens, such a provision would be very vulnerable to circumvention and
would be practically unenforceable.
Furthermore, it would create
immense problems for political parties in seeking or receiving financial
contributions.
22.
While
BL23
provides
for
laws
prohibiting
political
organisations from establishing ties with foreign political organisations,
this must be done consistently with the ICCPR. The present SO achieves
this by enabling organisations to be prohibited from operating in the
interests of the security of Hong Kong, or public safety or public order.
We do not consider that it is necessary to make special provision in the SO
in order to reflect BL 23.
23.
Our detailed comments on individual proposed amendments to
the Societies Ordinance are set out in Annex A.
Public Order Ordinance
24.
The POO as amended in 1995 strikes a balance between
individuals' rights to freedom of speech and assembly and the need to
maintain public order and safety. The few events cited in the consultation
document were isolated incidents which the Police were able to deal with
swiftly and effectively under existing statutory powers. Indeed, more than
1,000 public meetings and processions have been held since the
commencement of the amendments on 22 December 1995. The Police did
not need to prohibit any one of them and only one organiser of a public
procession found it necessary to resort to the appeal mechanism.
25.
The proposed requirement of a "notice of no objection" is, in
effect, a reintroduction of a requirement for police permission.
This
requirement is objectionable since it would mean that there is no right to
hold a public procession, however peaceful and harmless the procession
might be, but merely a privilege that may be exercised only if the police do
not object.
26.
The proposed requirement that a minimum of 48 hours' notice
of a public procession must be given to the Commissioner of Police would
mean that no public procession could be held at shorter notice, even if the
Commissioner of Police had no objection to it. There is no justification for
such a serious denial of freedom of assembly and expression. Under the
present law the Commissioner of Police has a discretion to accept shorter
notice. And even under the pre-1995 law, the Commissioner of Police
could accept an application at shorter notice.
27.
New grounds for prohibiting a public procession are
proposed. These are that the Commissioner of Police reasonably considers
the holding of the procession is not in the interests of -
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national security the protection of public health or morals the protection of the rights and freedoms of others. |
These grounds do not apply under the current law, and did not appear in
the pre-1995 law.
This is not surprising, given that the Ordinance is
essentially concerned with maintaining order in public places.
No
justification is given in the consultation document for the new grounds
which confer sweeping and undefined new powers on the Police to ban
public processions. As is explained in paragraph 9 above, it is no answer
to say that restrictions on these grounds are permitted by the ICCPR.
Moreover, the Administration is not aware of any public order legislation
in other jurisdictions which recites all of the ICCPR grounds word for
word as grounds for prohibiting processions.
28.
There is a serious risk that the inclusion of such broad grounds
as protection of "national security" and "public morals" will import
political considerations into the making of decisions under the POO. Given
the purpose of the Ordinance, those decisions ought to be based only on
concerns for public order or public safety.
29.
It is no answer to say that decisions based on national security
will be reviewable by the courts, given that case law establishes that
national security is the exclusive responsibility of the executive and that it
is generally a non-justiciable question.*
30.
Unless those responsible for the consultation paper can point to
specific situations in which there is a real and legitimate need for public
processions to be prohibited on these grounds, the proposal is unacceptable.
31.
Our detailed comments on individual proposed amendments to
the POO are set out in Annex B.
Reinstatement of other amendments to the SO and POO
32.
Besides those provisions mentioned in the consultation
document, there were other amendments made to the SO in 1992 and the
POO in 1995. They include among other things, increased penalties for
triad related offences, exempting public meetings in the open with less than
50 and public meetings in private premises with less than 500 persons from
the prior notification requirement, standardising the procedures and
conditions relating to the organisation of public meetings.
We presume
that those provisions will be reinstated in their entirety without any
changes.
33.
This detailed analysis demonstrates that no case has been made
for the proposed changes. The existing law is perfectly satisfactory, and is
fully consistent with the ICCPR and the Basic Law.
* The courts will require some evidence that there is a basis for a claim of "national security" and that it is
not made in bad faith. However, if there is such evidence, the courts will not then question the validity of
the claim by way of judicial review. The leading case is Council of Civil Service Unions v. Minister for
the Civil Service [1985] AC 374.
Further Comments
34.
We reserve the right to make further comments in the light of
the views expressed during the consultation period.
| Annex A |
Proposals to amend Societies Ordinance |
Proposed Amendments |
| 1. Within 1 month of the establishment or deemed establishment of a society or a branch of a society, the society must apply to the Societies Officer (the Commissioner of Police) for registration or for exemption from registration. Where a society has applied to the Societies Officer for registration or exemption from registration of the society or a branch of the society, the society or the branch may operate and continue to operate until the society is notified that the Societies Officer has refused its application. | -The notification system in the SO protects the freedom of association whilst providing the Government with adequate powers to regulate societies to combat criminal activities. It has operated smoothly and has been well accepted by the public since its introduction in 1992. Police enforcement capability has not been affected. We see no reason for the proposed reversion to a registration system. |
| 2. The Societies Officer may register the society or the branch or if he is satisfied that the society or the branch is established solely for religious, charitable, social or recreational purposes or as a rural committee or as a federation or other association of rural committees, he may exempt the society or the branch from registration. | - The current Societies Ordinance sets out the exempted societies by way of a schedule without leaving the discretion to the Societies Officer. We consider that this approach is clearer to the public as to what types of societies are exempted, and avoids giving the Police a broad discretion. |
| 3. Subject to paragraph 4 below the Societies Officer must not refuse to register or exempt a society or a branch of a society from registration except that, after consultation with the Secretary for Security, he reasonably believes that such refusal is in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others. | - Section 8 of the present SO empowers the Secretary for Security to prohibit the operation of a society, if such operation may be prejudicial to the security of Hong Kong (not to national security) or to public safety or public order. These grounds for prohibition are in line with the ICCPR and BL 39. The proposal to provide, as grounds for refusal of registration, all of the purposes listed in Article 22 of the ICCPR goes beyond what is necessary and, indeed, goes further than the pre-1992 version of the Societies Ordinance. No convincing justification has been provided for such a broad power. |
4. The Societies Officer may, after consultation with the Secretary for Security, refuse to register or exempt from registration a society or a branch of a society which engages in political activities in the following situations
(b) the society or a branch of the society has a connection with a foreign political organisation. |
- The previous discretionary power vested in the Societies Officer to refuse registration was removed in 1992 to better protect the freedom of association. We see no reason for the proposed conferral of a wider discretionary power on the Societies Officer, albeit subject to consultation with the Secretary for Security. We consider that the present SO provides adequate power for Government to regulate societies, including foreign organisations or bodies. |
The Societies Officer may regard the situations in (a) or (b) above as not in the interests of national security or public safety, public order or the protection of public morals in the absence of evidence to the contrary.
- in facilitating its members who are members of the Legislative Council, the Urban Council, the Regional Council or a District Board in executing their functions as members of those bodies (including provisional bodies), other than the activities of a functional constituency organisation.
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- Restrictions on ties with foreign political organisations will only be consistent with the ICCPR if they can properly be considered necessary to achieve one or more of the purposes listed in Article 22.
- It is unclear whether the proposed restrictions on foreign links are to be assessed by reference to Article 22 considerations or independently of them. If it is the latter, then the proposals are likely to be inconsistent with the ICCPR. It is difficult to see, for example, how the mere acceptance of financial assistance from an alien or foreign political organisation, or the mere affiliation with a foreign political organisation, could of itself, be a valid ground under the ICCPR for prohibiting an association of people through the refusal or cancellation of registration. - The proposal that registration of a society could be refused because an alien gives financial support to the societys political activities goes beyond Article 23 of the BL and is unjustified. It cannot be justified by reference to Article 16 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (cited in footnote 3 on page 10 of the consultation paper), which relates to restrictions on the political activities of aliens. The proposal would restrict the activities of all people in Hong Kong. Under the BL a non-Chinese national who has the right of abode is permitted under BL26 to take part in political activities in the HKSAR, including voting and being elected. There is no reason to debar a society from accepting financial contribution from such a person. - In addition to the legal objections to the proposal concerning aliens, such a provision would be very vulnerable to circumvention and would be practically unenforceable. Furthermore, it would create immense problems for political parties in seeking or receiving financial contributions. |
- if the society or the branch solicits or accepts financial contributions, loans or support of any kind, directly or indirectly, from or is affiliated directly or indirectly with the foreign political organisation; or - if the societys or the branchs policies or any of them are determined by or at the suggestion of, or in collaboration with the foreign political organisation; or - if the foreign political organisation directs, dictates, controls, influences or participates directly or indirectly in the management or the decision making process of the society or the branch.
- an instrumentality of a foreign government or a political subdivision of the instrumentality; or - a political party in a foreign country; or - an international political organisation.
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| 5. Provisions similar to paragraphs 3 & 4 above in respect of the cancellation of the registration or exemption of a society or a branch of a society from registration. | - Same as comments on items 3 and 4 |
| 6. The society so affected must be afforded an opportunity to be heard before refusal or cancellation. The Societies Officer shall state the reasons for refusal or cancellation. | - No comment |
7. Where the Societies Officer reasonably believes that the operation of a society or a branch of a society is not in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others, he shall notify the Secretary for Security who may by order published in the Gazette prohibit the operation of the society or the branch. The Societies Officer may regard the situation in paragraph 4(a) and (b) above not in the interests of national security, public safety, public order or the protection of public morals in the absence of evidence to the contrary. |
- Same as comments on items 3 and 4. |
| 8. Restrictions on the names of societies and changes of the particulars of a society under the 1992 Amendment Ordinance are retained. | - No comment |
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(B) Appeals Any person aggrieved by a decision of the Societies Officer or the Secretary for Security may appeal to the Chief Executive in Council who may reverse, vary or confirm the decision. |
- No comment |
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(C) Transitional
All societies which have notified the Societies Officer in accordance with s.5 of the Societies Ordinance before the commencement of the amending Ordinance shall, as from such commencement, be deemed to have complied with the registration requirements and are taken to be registered societies |
- No comment |
| Proposed Amendments | HKGs comments |
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(A) Formalities 1. Subject to para 2, a public procession may take place if
(b) the CP has issued a Notice of No Objection; and
(c) the general statutory conditions together with any additional conditions imposed by the CP are complied with.
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1(a) the existing notification requirement is fully consistent with the ICCPR and the BL and well accepted by the public; (b) the Notice of No Objection is, in effect, a reintroduction of a requirement for Police permission, which is objectionable; (c) the proposed general statutory conditions are similar to those mentioned in section 15(1) of the POO. |
2. No notification is required if the public procession
(b) does not consist of more than 30 persons; or (c) is of a nature or description specified by the CP in the Gazette.
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2. Same as the existing provision under section 13(2) of the POO. |
3. A notice of intention containing the stipulated particulars must be lodged to the CP not less than:
(b) 7 days for other processions. However, in respect of processions other than funeral processions, the CP may, and must where he is reasonably satisfied that earlier notice could not have been given, accept shorter notice of intent of not less than 48 hours prior to the public procession. The CP is required to give reasons for refusal. |
3(a) This requirement is similar to section 13A(1)(a) of the POO; (b) the exact definition of the 7 day notification period should be clearly set out as in section 13A(1)(b) of the POO in order to avoid any ambiguity. CP should be able to accept shorter notice without any time limit so long as he is reasonably satisfied that earlier notice could not have been given so as to cater for any situations that justify public processions being held at very short notice. |
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4. Upon the receipt of the notice of intention, apart from acknowledging receipt of the notice, the CP is required to issue Either (a) a Notice of No Objection Or (b) a Notice of Objection. The Notice of Objection must state the reasons of objection. Objection can only be made if he reasonably considers the holding of the procession is not in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others. No Notice of Objection can be issued:
(b) where a 7-day notice is given, at any time later than 48 hours prior to the procession; or
(c) where shorter notice of 72 hours or more is accepted, at any time later than 24 hours prior to the procession.
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4. Similar comments on the need for a Notice of No Objection as in item 1(b) above. New grounds for prohibiting a public procession are proposed. These are that the Commissioner of Police reasonably considers the holding of the procession is not in the interests of - These grounds do not apply under the current law, and did not appear in the pre-1995 law. This is not surprising, given that the Ordinance is essentially concerned with maintaining order in public places. No justification is given for the new grounds which confer sweeping and undefined new powers on the Police to ban public processions. As is explained in paragraph 9 of our main text, it is no answer to say that these restrictions are permitted by the ICCPR. Moreover, the Administration is not aware of any public order legislation in other jurisdictions which recites all of the ICCPR grounds word for word as grounds for prohibiting processions. |
| 5. The statutory conditions must be complied with. The CP may impose additional conditions in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Such additional conditions must also be complied with. | 5. Similar comments as in item 4 above on the need for additional grounds. |
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(B) Appeals
6. Any persons aggrieved by the decision of the CP may appeal to an independent appeal board chaired by a retired judge. |
6. Similar provisions governing the operation of the Appeal Board under section 43 to 44A of the POO should be retained. In particular, the Appeal Board should be required to consider and determine any appeal with the greatest expedition possible so as to ensure that the appeal is not frustrated by any delays until after the date on which the public procession is proposed to be held. |
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(C) Transitional
For a public procession to be held during the period from 1 July 1997 to 3 July 1997, notice of intention must be given to the Commissioner of Police by 24, 25 and 26 June 1997 respectively. If the CP prohibits the public procession before 1 July 1997, the prohibition is taken to be a notice of objection. If the CP does not notify that he prohibits the procession or if he notifies the person who gives the notice the conditions to be imposed before 1 July 1997, this is taken to be a notice of no objection. For a public procession to be held during the period from 4 July 1997 to 9 July 1997, notice of intention must be given to the CP by 27 June 1997. If the CP prohibits the public procession before 1 July 1997, the prohibition is taken to be a notice of objection. If the CP notifies the person who gives the notice the conditions to be imposed before 1 July 1997, the notification is taken to be a notice of no objection. If the CP does not notify that he prohibits the procession or imposes conditions before 1 July 1997, the CP must process the notification on or after 1 July 1997 under the proposed amendments that come into force on 1 July 1997. |
7. Under the existing provisions of POO, the CP may accept shorter notice anytime before the date of public procession, for example 30 June for a procession to take place on 1 July 1997, if he is reasonably satisfied that earlier notice could not have been given. This provision should be retained. 8. The proposal that notice of intention must be given by 27 June would mean that, for some processions to be held in the specified period, more than 7 days notice would be needed. No justification is given for this. |