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Human Rights Issues -- December 2000
The Debate of Public Order Ordinance in the Society (August - December, 2000) (Article 21)
The charges to the students' leaders
Problems of the existing Public Order Ordinance (POO)
The proposal of grassroots organizations
The proposal of the Hong Kong Barrister Association
Existing Ordinance remained unchanged
Allegation of Police overusing pepper spray was found substantiated (December 12, 2000) (Article 21)
The Debate of Public Order Ordinance in the Society (August - December, 2000) (Article 21)
The charges to the students' leaders
The debate of Public Order Ordinance lasted for decades since 1980 and reappeared in 2000 due to the charges of students' leaders. On August 16 2000, the police arrested seven student leaders over the protest relating to tuition fees in April and a demonstration of right of abode in June 26, 2000. The students were charged of assisting in organizing an unauthorized assembly, obstructing police to discharge the duty and helping to organize the illegal event. It was the first time that illegal assembly was employed to charge over the students.
The spokeswoman of the Hong Kong Federation of Students, Ms Yuen Hoi-yan, criticized the government and the police for employing the Public Order Ordinance as tool to entrench its power and suppress social movement. Ms. Cheung Wan-kie, the president of the Hong Kong University Student Union, commented that the charge was held exactly before the date of the national ceremony because the police wanted to make the students become exhausted and thus exert pressure over other students who are interested in social activities. Legislator James To Kun-sun claimed that the charging had bias and it was a political persecution. Mr. Law Yuk-kai, Director of Hong Kong Human Rights Monitor, speculated that the police aimed at weakening the influence of student unions and the students' motivation in participating in social activities. The student union claimed that it would insist civil disobedience and only inform the police 24-hour before the assembly or procession was held.
On the other hand, the police denied that the charges of the students specially singled out the students and the Chief Executive Mr. Tung Chee-hwa commented that it was not necessary to review the ordinance, which was passed by the provisional legislature in 1997. He said that foreign cities such as New York, London and Sydney also had similar laws to regulate public assemblies or processions.
Moreover, Secretary for Security, Ms. Regina Ip Lau Suk-yee, said that the existing ordinance was in line with the International Covenant on Civil and Political Rights (ICCPR) and the Basic Law. She commented that the existing ordinance had already strike the balance between individuals' right to assembly and public interest. Moreover, the notice of no-objection gave more certainty and clarity to demonstration organizers as to whether their marches would go ahead or not. The notification system can also ensure the police to have better preparation for crowd control and thus public safety can be ensured.
In October 9 2000, the BAR Association also commented that police had singled out students for charge because there had been hundreds of other meetings and demonstrations since the handover, which had not complied with the Public Order Ordinances, but the protesters were not charged. The association urged the Government to review the law on public meetings and demonstrations and review whether the law governing protests and demonstrations complied with the right to assembly and freedom of expression under the Basic Law and the ICCPR. The association commented that the duration for notifying for meetings and demonstrations were too long and should be shortened.
The incident also led a total of 372 former activists to have a signature campaign demanding the Department of Justice not to prosecute the students. Moreover, a protest march was held in 17 October 2000 to push the amendment of the Public Order Ordinance and to loosen the regulations of public assembly. Hundreds of the protestors participated, including the Legislative councillors, to protest against the ordinance. One of the protestors, Democratic Party chairman Martin Lee Chu-ming, commented that the government had tried to shift the responsibility to students and the democrats because the government was in a dilemma.
Problems of the existing Public Order Ordinance
(POO)
Before 1995, the ordinance required protest organizers to obtain a licence
and allowed police to ban rallies without explanation. The law was relaxed at
the same year to cancel the requirement of obtaining the license. The existing
ordinance was introduced in 1997 by the Beijing-appointed provisional-legislature.
Under the existing ordinance, protest organizers must notify police seven days
in advance of processions of more than thirty people or assemblies of more than
fifty. Moreover, marches must receive a notice of no-objection. However, if
the notice had not been received 48 hours before the protest, it is assumed
that the police does not oppose it and the protest can go ahead.
The main focus of discussion include the followings:
1. The duration for notification for meetings and demonstrations.
2. The police's power to prohibit meetings and to object demonstrations.
3. The criminalisation of peaceful meetings and demonstrations which were without
prior announcement.
In October 24 2000, with reference to public opinion and social pressure, the Department of Judiciary decided not to prosecute the protestors and the student leaders, and it was treated as the small victory of the students. After that, the pro-democracy camp of the Legislative Council was trying to propose a private member's motion to the legislative council to amend the Public Order Ordinance.
In November, the Government had actively proposed a motion in the Legislative Council to retain the existing Public Order Ordinance. Several consultation forums were held but the organizations invited were criticized as pro-Government and lack of representativeness. In 10 November 2000, the Legislative Council passed the motion to delay discussion on whether to retain the existing Public Order Ordinance in order to provide more room for public consultation and discussion.
The proposal of grassroots organizations
The grassroots organizations and human rights groups generally argued that
freedom of assembly and freedom of demonstration are inherited rights and enshrined
in the Basic Law. They have the following recommendations to the ordinance:
1. Prior notification is not compulsory but participants of a notified assembly
are encouraged to do so. Immunity will be given to them from prosecution for
offences relating to traffic laws and obstruction and other related civil and
criminal responsibility.
2. As the notification system merely encouraged the protestors to notify the
government, it is not necessary to report the number of participants to the
police.
3. In application, protesters can notify the police three days (compare with
the seven days at present) in advance to the activities. The police can only
provide additional conditions on the time, place and manner of activities but
no power to terminate any assembly or procession. In order to terminate the
actions, the police have to appeal to the court and the court has the jurisdiction
over the application.
4. * The protestors will be penalized if they do not follow the ruling of the
court. (The Hong Kong Federation of Students disagrees with this and they argue
that they should not be penalized even though they disobey the court ruling.)
The proposal of the Hong Kong Barrister Association
In November 25 2000, the Hong Kong Barrieter Association (hereinafter BAR Association) submitted their opinions to the Legislative Council and they are the following:
1. The legal restrictions of the right to peaceful assembly or procession cannot
negate the rights themselves and those limitations can only be justified by
reference to the "time, manner and place" principle.
2. The police should positively facilitate the exercise of the right to peaceful
assembly and procession.
3. A scheme for encouraging people to exercise the right to notify the police
of their intention should be introduced. The incentive for prior notification
will be immunity from liability under the relevant common law and other laws
that otherwise might come into play.
4. The police being notified of a proposed public assembly or procession. The
only objections to the same should relate to time, manner and place.
5. Some provision that identifies objective criteria which may be relied upon
to restrict the exercise of the right.
6. Decision-making must be by reference to objective criteria and the existence
of identified reasonable grounds said to give rise to a belief that the criteria
exist. Pure value judgments will not do.
7. In the event that the police attach conditions to the place, manner and
time of an assembly or procession and the organizers consider that the police
have erred in their application of the criteria, there should be a right to
have the decision reviewed by a judge immediately.
8. A provision making it clear the police will have the burden of showing that
the decision to apply restrictions was necessary.
9. In the interest of maintaining the integrity of a notification system some
sanctions may be applied to the organizers, but not participants, of public
assemblies or procession who failed to give the required notification. In common
with many other regulatory offences, the crime should be punishable only with
a fine.
10. The time for notifying the police of a proposed assembly or procession
should not be unduly long in advance. 48 hours before the event is already a
sufficient notice. If the police wish to impose conditions on the assembly,
the police must do so either with the consent of the organizer or by applying
to a judge for an order.
11. A provision for waiver by the police of notification in spontaneous assemblies
or processions or peaceful assemblies or processions which do not call for significant
change of public or traffic control.
12. A provision that a public assembly or public procession with less than 100 people should be exempt from restriction as such small scale protests are unlikely to affect members of the public.
Moreover, the BAR Association proposed the following amendments:
1. It is unconstitutional to criminalize a peaceful assembly or procession
simply on the ground of failure to give notice. To this extent, the constitutionality
of section 17A of the Ordinance is seriously in doubt. In any event, the heavy
custodial penalty imposed by this provision is at odds with the spirit and intent
of Articles 27 and 39 of the Basic Law and plainly unreasonable when viewed
in the context of other provisions of the Ordinance.
2. The requirement to give 7 days' notice of the Public Order Ordinance is
an unnecessary restriction and out of step with other modern societies. A notice
period of 48 hours with a provision for waiver in spontaneous demonstrations
will be more in line with the spirit and intent of Articles 27 and 39 of the
Basic Law.
3. Ordinance, which empowers the Commissioner of Police or the police to prohibit
a peaceful assembly or procession on the ground of public order or the protection
of the rights and freedom of others, is unnecessary and likely to lead to an
abuse of power.
4. The appeal procedure of the Ordinance is unlikely to work in practice since
the constitutional rights concerned are matters of legal right, which can best
be determined by a judge.
The SAR Government should seriously consider and enact, as soon as practicable,
such additional provisions as to improve the existing Ordinance into a modern
way.
(extracted from the submission of BAR association towards the Right of Peaceful Assembly or Procession on November 25, 2000)
Existing Ordinance remained unchanged
The motion of retaining Public Order Ordinance (POO) was discussed in December 20 and 21 2000. However, over half number of the legislative councilors (36 out of 57) agreed on the motion and the government successfully retained the existing Public Order Ordinance.
Allegation of Police overusing pepper spray was found substantiated (December 12, 2000) (Article 21)
In a June 2000 protest against the Government's right of abode policies, the police were accused of employing excessive force when they used pepper spray to demonstrators when removing them from the entrance to the main government office building. As recommended by the Complaints against Police Office(CAPO), two police officers received verbal warnings for their actions. The complaint was further reviewed by the Independent Police Complaint Council (IPCC) and it concluded that the allegations that police officers employing excessive force and misuse pepper spray were found substantiated. As the IPCC was not a statutory body, its opinion was not legally binding. However, the protestors, who were attacked by pepper spray, had considered to sue the police by civil claim.
The allegations of the complaints are as the following:
1. Police officers used their arms to assault demonstrators
Result: The allegation was found "not fully substantiated" as the
TV video only showed that the accused officers were purposively attacking the
protestors.
2. Police officers overused pepper spray to attack demonstrators for three times.
Result: The allegation for the first employment unsubstantiated as it was necessary
in order to control the crowd of protestors, while the allegations of the second
and the third employment were substantiated as the protestors did not act violently
after being attacked.
In his original report, Mr. S.G. Chandler, the Chief Superintendent of CAPO, insisted that all police officers did not act wrong and merely were inappropriate to a certain extent. However, after opposed by the IPCC, CAPO accepted all of the allegations.
Legislator Councilor Mr. James To Kun-sun, who was the vice-chairman of the security affairs committee, strongly criticized that merely giving a verbal warning to the alleged police officers was a too light punishment and the conclusion drawn by the IPCC was also not fair enough.
Court of Appeal dismissed the judicial review of 5,000 right of abode claimants
(December 12, 2000) (Article 14, 23)
On December 11, 2000, the Court of Appeal dismissed the case of around 5,000 abode-claimants. Mr. Justice Simon Mayo, Mr. Justice Anthony Rogers and Mr. Justice Arthur Leong Shiu-chung heard the case and they unanimously refuted the appeal on the reason that the claimants were excluded from the "discretionary policy" and their right of abode was lost after the re-interpretation by the National People's Congress Standing Committee (NPCSC).
The lawsuit involved three independent representative cases, which affected the right of abode of 5,342 children of Hong Kong citizens at the Mainland China. The appellants requested the following:
1. The court should withdraw the removal order issued by the Immigration Department
2. The court should declare that the claimants were benefit from the ruling
of the Court of Final Appeal (CFA) on January 29,1999 that they were not affected
by the discretionary policy of the Government.
3. The court should rule that they are entitled to verify their identity in
Hong Kong.
The court ruled that the re-interpretation of the NPCSC on June 26, 1999 had
already negated the legal principles established by the CFA in January 29, 1999.
At present, only the following three categories of citizens are entitled to
have right of abode:
1. The 85 appellants in the ruling held by the CFA on January 29, 1999
2. Applicants who had made an agreement with the Director of Immigration before
the date of the ruling.
3. Applicants who meet the requirements of the discretionary policy.
As the appellants did not belong to the above categories, the court ruled that
they did not have right of abode.
Ms. Pam Baker, solicitor for the claimants, said that she had to closely study the judgement and decide whether to appeal the case to the CFA.
Mr. Tong Hin-ming, Assistant Secretary for Security Bureau, welcomed the court judgement and said that it was a good sign for the abode-claimants to apply at the Mainland. He promised that the Department of Immigration would not repatriate the claimants in the course of appeal.