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The Chief Executive office has released the Civil Liberties and Social Order Consultation Document (the Consultation Document) recently and has been undergoing public consultation on this matter. Having a wide converge, the Consultation Document's proposals on amendments on the existing Public Order Ordinance and Societies Ordinance do attract controversies. Our comments on the issue are as follows:
II. Comments on Proposed Amendments
1. Scrapping of Law of the National Peoples Congress (NPC) of PRC -- Lack of Legal Basis
The Consultation Document states that it is necessary to amend the Societies Ordinance and the Public Order Ordinance, as part of the existing laws are contravening of the Basic Law. However, there is non even a word in the Consultation Document which explains how those ordinances are contravening of the Basic Law. In fact, the Hong Kong Bill of Rights Ordinance (BORO) is in full compliance with the Basic Law. According to the Sino-British Joint Declaration and the Basic Law, the International Covenant on Civil and Political Right ( ICCPR) will have the continued applicability in the Hong Kong Special Administrative Region (SAR). Whereas BORO incorporates provisions of ICCPR as applied to Hong Kong into the domestic laws.
Hence, this does not have the problem of BORO overrides Basic Law. Therefore, amending Societies Ordinance and Public Order Ordinance according to the requirements of BORO did not contravene Basic Law. In view if this, the scrapping of law by the NPCs Standing Committee is entirely lack of legal basis.
2. No Legal Vacuum
The Consultation Document emphases the necessity and urgency of amending the existing law, as there will be a legal vacuum after the resolution of NPCs Standing Committee. However, this is not a valid argument. Even if people form societies do not need to have official registration, and even if people hold peaceful assembles and demonstrations do not need to apply for nor notify with, it will not lead to the destruction of social order. In fact, the Public Order Ordinance and other corresponding laws have already granted substantial power to the Commissioner of Police to control public meetings and demonstrations, so if there is any sign of damaging public order, police has got enough power to intervene. Therefore, the existing laws do possess adequate power to deal with any possible worrying situations similar to para. 3.3 of the Consultation Document. In light of this, the legal vacuum will not exist after July 1, and it is groundless to amend the laws in the excuse of safeguarding social order.
3. Societies Ordinance and Public Order Ordinance Not in Compliance with ICCPR
The existing Societies Ordinance and Public Order Ordinance are very conservative, they are not in compliance with ICCPR. It is unbearable to reverse them to a situation that will seriously violate freedom of association and freedom of assembly.
4. Parts of Consultative Document Overpower Basic Law
The Consultation Document first introduces concepts like National Safety and Foreign Connections. The interpretations of these concepts in the Consultation Document is blurred, it even carries a wider coverage than the article 23 of Basic Law. As most Hong Kong people are not familiar with these issues, there is a need to examine the issue thoroughly and consult public views from all groups. It is definitely not wise of the Special Administrative Government to make laws so ruthlessly that will arise fears and worries.
5. Consultation Document Misinterprets ICCPR
The spirit and intention principle of ICCPR, are to require state parties to first recognize the rights to freedom of assembly and association. In general, the government cannot restrict these rights. However, the Consultation Document misinterprets these provisions, saying that it is in full compliance with ICCPR if the Administration restricts associations and demonstrations for the reasons listed in ICCPR (i.e. national security, public safety, public order, public health, morals or to take account of the rights and freedoms of others). According to ICCPR, the Government has to meet 3 conditions in order to restrict basic human rights of association, assembly and demonstration:
1.)Be prescribed by the law;
2.)Be necessary in a democratic society;
3.)Address one of the aims or interests enumerated in the relevant Article.
Therefore, those restrictions which have been prescribed in the law must be clear and absolute, so that one can predict whether his/her rights will be restricted. For the second condition, those restrictions would be necessary only if there is a pressing social need to attack certain misbehavior, and with the absence of any alternative. However, the Consultation Document suggests the administrative organ can, as exempted from the judgment of the court, suppress peoples' rights of assembly and association for the vague reasons like "national security". It firstly violates the clear, specific requirements of the law and secondly, it cannot prove how "necessary" that the government has to restrict the right of peaceful assembly and association. Evidently, the proposals made by the Consultation Document seriously violates the provisions of ICCPR.
6. All Law Amendments have to be in Accordance with ICPPR
We welcome the recognition of the Consultation Document that any amendments of laws must be in accordance with Basic Law and ICCPR. We absolutely support the amendments of Societies Ordinance as well as the Public Order Ordinance, provided that it is in full compliance with the provisions of ICCPR. We support the amendments of laws which restrict human rights so that people can fully exercise their basic rights, as stated in part 3 of Basic Law and totally uproot the outdated colonial "evil laws".
II. Comments on Specific Suggesting Amendments
1. No Derogation of Existing Liberties
Article 5 (2) of ICCPR states that, there shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent." Obviously, the suggesting restrictions made by the Consultation Document are far stricter than those of the existing law (Societies Ordinance 1992 and Public Order Ordinance 1995). If these suggestions are successfully passed, it will lead to the derogation of the fundamental human rights and directly violates provisions of Article 5 (2) of ICCPR.
2. No need to make law for Basic Law art. 23
The Consultation Document proposes to include provisions of prohibiting connections among Hong Kong and overseas political groups or organizations into the Societies Ordinance. This is to ensure the enactment of Basic Law art. 23, by prohibiting political groups or organizations having any act of treason, secessions sedition, subversion Government, or theft of state secrets. These provisions are to restrict local political groups from conducting the above-mentioned behaviors that would threaten national security. In fact, there is no urgent need to make such law, and as the Special Administrative Region Government will undergo detailed examination on making relating laws in the near future, it is definitely inappropriate to include such provisions in Society Ordinance.
3. Vague and Board Definition of "Political Organization"
The Consultation Document carries a board definition for political organizations. An organization or a body will be defined as political organization or body even if it just helps to carry out the work of a District Board councilor, who shares no real political decision power, or if an organization or a body help promoting a candidate running for District Board election. In this sense, numerous non-governmental organizations will be affected, including unions, residents' groups, women groups, community groups, etc. In fact, a lot of these organizations are receiving financial assistance from foreign organizations (or individuals) and have close connections (e. g. sharing of information, cooperation in organizing activities, mutual support, etc.) among them. The proposals of the Consultation Document are not only in breach of the basic civil rights and responsibilities of political participation, but also hinder the political participation of non-governmental groups. Different views in society will then be failed to express, participate and reach consensus through open and fair political channels. In turns, conflicts of society will become sharpened and even the layman are forced to express grievances in the street. On the other hand, it is commonly known that globalization is an international trend. Strengthening international networks can help solving each other's common issues. Therefore, the Consultation Documents' suggestion on restricting "Foreign Connections", not only reverses global trend, but also deplorably hinders the growth and development of Hong Kong.
4. Amendments of Societies Ordinance Violates ICCPR.
The Consultation Document proposes to re-introduce registration of societies. To be legalized, activities of societies have to seek approval from the government. Such requirement would be in breach of the right to freedom of association and contravene article 22 of ICCPR. The Consultation Document also suggests the Chief Executive in Council be the appeal channel, not an independent court. We found the Societies Ordinance gives the Administration a broad power to restrict the freedom of association. As the appeal channel, the Chief Executive in Council is also part of the Administration, its independence and impartiality remain doubtful.
5. Consultation Document Violates Principle of Presumption of Innocence
The Consultation Document introduces where the Administration "reasonably believes" the operation of a society or "reasonably considers" the holding of the procession is not in the interests of national security, etc., the Administration can object such procession or prohibit the operation of the society. The basis for imposing restricts is wide and vague. It is based on predictions, not on actual behaviours.
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The Consultation Document also requires societies which have been prohibited to operate to provide "evidence to the contrary" in order to proof their "foreign connections" did not violate reasons like national security. Otherwise, such societies will be regarded as not in the interests of national security, etc. If their operation continues, they may face criminal charges (under Societies Ordinance Art. 19(1)). All these amendments are clearly in breach of the basic legal principle of "presumption of innocence", an important concept incorporated in both ICCPR and BORO.
6. Amendments of Public Order Ordinance -- in Breach of ICCPR
The proposed Public Order Ordinance is a reintroduction of a requirement for police permission. It proposes to replace the existing notification requirement by "the Letter of No Objection". This proposal is in breach of the fundamental rights of peaceful assembly, degrading the right to a privilege" granted by or "not objected" by the law-enforcement agency. Evidently, such proposals violates article 21 of ICCPR, stating that right of peaceful assembly shall be fully recognized. Where the Commissioner of Police can object a procession if he/she "reasonable considers"" the holding of the procession is not in the interests of national security, etc. However, what does it meant by "reasonably considers"? Apparently, this vague and loose definition will only give a wide discretion for the Administration to restrict the rights to freedom of assembly, serving as an excuse to abuse of police power and violation of civil rights.
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The proposal requires any procession (expect for funeral procession) be notified to the Commissioner of police before 48 hours. If so, every procession organized within this 48-hour time limit will be regarded as illegal. Such restriction is surely not necessary in a democratic society. It will only weaken the Commissioner of Police's discretion in handling urgent cases as well as suppressing people's right to freedom of assembly and procession.
Based on the previous analysis, we have several recommendations to ensure our Societies Ordinance and Public Order Ordinance be in compliance with ICCPR:
1.)We strongly oppose any compulsory societies registration, suggesting it be replaced by a voluntary registration system. This will help smoothing the operation of those societies involving financial management.
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If the government has to restrict societies activities, such restrictions must be prescribed by law clearly and not exceed conditions set forth in ICCPR. To impose such restrictions, the Administration has to make application to the court, so as to prevent arbitrary suppression of people's freedom of association. Imposing necessary restrictions on freedom of association by the Judiciary can ensure the independence and impartiality of such decision. It is the best way to ensure fair judgment.
2. Holding and participating peaceful assembly and procession are basic civil rights. We suggest to adopt the existing notification system and proposed that no notification is required if the public procession does not consist of more than 200 persons. If there will be over 200 persons, a 3-day notice should be given prior to the procession. Special procedures should be taken for spontaneous cases.
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If the government has to restrict processions, such restrictions must be prescribed by law clearly and not exceed conditions set forth in ICCPR. To impose such restrictions, the Administration has to make application to the court, so as to prevent arbitrary suppression of people's freedom of association.
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3. There is no urgent need to make law for imposing restrictions on foreign connections of political organizations. It should be included in the law-making process for Basic Law art. 23 by the SAR Government, where detailed, careful examination and public consultation should be taken place.
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17 April, 1997