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A triumph for the freedom of peaceful assembly

(Hong Kong: 5 May 2005) The Hong Kong Human Rights Monitor welcomes the judgment of the Court of Final Appeal (CFA) on the Falun Gong demonstration case. The CFA upheld the constitutional right to freedoms of peaceful assembly and expression. This judgment makes it imperative for the police to review existing police measures at least for all demonstrations of less than 30 persons, if not other measures as well.

The CFA considered these freedoms as being at the heart of Hong Kong’s system and held that the constitutional guarantees for these freedoms should be interpreted in a generous manner in order to enable Hong Kong residents to fully enjoy them. This judgment, which futher clarifies the law, will provide an important positive and liberal guidance to future cases involving freedom of assembly.

The judgment reaffirms that peaceful demonstrations, which only cause a minimum of obstruction, are considered as a reasonable use of a public place. This means that a demonstration by a small group of persons in a public place, even if it causes some obstruction, will not amount to the offence of obstruction of public places. An offence will only be committed if the obstruction is unreasonable.  In deciding what is reasonable in the circumstances, the CFA held that it is necessary to ensure that any limits or bounds “must not be so narrowly defined as to devalue, or unduly impair the ability to exercise such a freedom.” This approach is conducive to supporting the freedom of peaceful assembly at public places.

The judgment has also endorsed the importance of the selection of a prominent place, from the perspective of the participants, as the site for a demonstration. A group of peaceful protestors, especially a small group, will have a very strong claim to select a public place closer to the target of their protest and occupy a more visible public place. If a demonstration is peaceful and causing a minimum of obstruction, which is usually the case for a small group of demonstrators, the police will have no strong reasons on public order and national security grounds to restrict the protestors to a place picked by the police themselves. As a demonstration by a small group of protestors is normally not very obstructive, which the law now accepts as a reasonable obstruction in the exercise of the rights of speech and assembly, it will be very difficult for the police to assert that the denial of the rights of other users of the public place as an excuse for confining the demonstrators to a place not of the protestors’ choice. Therefore the previous police practice of confining a group of protestors, however small, to “designated public activity areas” of the police officer’s choice will in the future be actively called into question by the protestors. To avoid abuse of power and to ensure that front line police officers do not adopt unlawful measures and that the basic rights of the protestors are protected, the police need to review their measures relating to “designated public activity areas.”

This judgment also highlights the judiciary's important role in ensuring the rule of law and protection of rights in Hong Kong. This judgment illustrates the key role of the judiciary in interpreting and developing a clearer understanding of Hong Kong laws and their relationship to, the constitutional guarantees of freedoms in the Basic Law.

The judiciary is not operating in a vacuum. We should not expect the judiciary to be able to defend human rights on their own.  It is equally important for Hong Kong people to be vigilant in exercising and defending our rights.