Promoting three basic freedoms

Towards Greater Freedom of Association,
Assembly and Expression in Asia
A Regionwide Research and Advocacy Project

HONG KONG: NGOs STEP INTO THE UNKNOWN FACING REPRESSIVE LAWS

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I. INTRODUCTION

Since their initial acquisition of the island in 1842, the British have shaped Hong Kong's economic, social, political, and legal institutions. With China's pledge to maintain ¡§one country, two systems¡¨ for the next 50 years, the structure of Hong Kong¡¦s legal and administrative systems may for a time resemble its British past more than its Chinese future.

In the economic sphere, Hong Kong represents the fortunate outcome of Britain's experiment in unprecedented levels of freedom in international trade, and reflects a level of development and expertise unparalleled on the mainland. With its 1996 Gross Domestic Product (GDP) of $1,195 billion (U.S.$153 billion) soaring well ahead of its rise in population to 6.3 million, Hong Kong's per capita GDP of $189,000 (U.S.$24,200) is the envy of many nations in the industrialised West. Hong Kong has the world's busiest container port, highly sophisticated financial services, an efficient and largely corruption-free public sector, and a dynamic business community with strong international links. Its prospects for lasting economic success should be bright.

However, China, its new sovereign, represents a wholly different governmental tradition based on authoritarian control. The rule of law is absent in Mainland China and business success depends on guanxi (connections). Those with a stake in Hong Kong's continued prosperity can only hope that China is sincere in its ¡§one country, two systems¡¨ pledge, and that the rule of law will persist despite Chinese sovereignty.


II. ASSOCIATIONS IN HONG KONG

Hong Kong is home to hundreds of community groups and NGOs working on a wide spectrum of charitable causes and issues, reflecting the territory¡¦s highly developed civil society. They range from neighbourhood and community groups to labour unions and branches of international human rights and environmental organizations. As of March 31, 1997, there were 7,774 notified societies on the list of the Hong Kong police, an increase of about 900 over the previous year (6,883), indicating a rapid growth in their numbers. This figure did not include thousands of groups not classified as ¡§societies¡¨ and therefore not required to notify the police of their existence, including 3,953 Mutual Aid Committees, countless charitable trusts, nonprofit corporations, and trade unions registered under other ordinances.

Until the late 1970s, few Hong Kong NGOs were concerned with human rights or political issues¡Xa reflection of Hong Kong's traditional colonial culture in which political activism and open questioning of government policy was discouraged. A pioneering NGO concerned with discussion of public affairs and greater government accountability was the Hong Kong Observers, active in the late 1970s and early 1980s. The Observers, and probably other groups active at the time, were a target of secret monitoring by the Standing Committee on Pressure Groups, a clandestine body established by the colonial government. The existence of the Committee was leaked to the public and it was dissolved in the 1980s. The Committee was an indication of the colonial government¡¦s suspicion of local autonomous pressure groups that were critical of the government.

The Observers disbanded in the 1980s at a time when the first Legislative Council elections led to the emergence of political parties. During the 1980s, the colonial government gradually came to terms with an increasingly vigorous NGO sector as a more open and representative style of government developed, coinciding with the decolonization process. The reform of local administration characterised by the introduction of local district government and partially elected District Boards in the early 1980s triggered the growth of residents associations as well as pressure groups. The Sino-British negotiation on Hong Kong's future and the development of elections of the Legislative Council further fueled the process. Other factors encouraging NGO growth were an expanding public sector that penetrated into more aspects of social life and a better-educated population that had rising expectations and was thus ready to join or form associations to achieve their goals. The Observers' role was soon taken up by the emergence of a wide range of groups actively devoted to development and advocacy work as well as to the provision of services. In the 1990s a wide variety of pressure groups established themselves, including those working on environmental issues, political affairs, press freedom, women's rights, homosexual rights, refugee rights, and minority rights.

Many international NGOs¡Xsuch as Amnesty International, Human Rights Watch, and the Asian Human Rights Commission¡Xorganized local chapters in Hong Kong or chose to locate their regional offices there, drawn partly by Hong Kong¡¦s relative prosperity and stability, its status as an international transport and communication hub, and the fact its laws regulating associations are by and large liberal compared to other Asian jurisdictions.

Local Hong Kong NGOs range in size from large networks of NGOs, such as the Hong Kong Alliance in Support of the Patriotic Democratic Movement in China, to small, often short-lived, groups of activists comprising only a few individuals. These variations in size often have important ramifications for how different NGOs are treated by the official bureaucracy.

Hong Kong's NGOs, though varying in their relative levels of independence from the government, are mostly wholly autonomous. Most NGOs receive no government funding, and although the government records their name, address, and officers, the groups act with complete autonomy. Some NGOs cooperate with government initiatives, while others are outspoken in their criticisms of government policy. However, even those that cooperate are to a great extent self-governing. Examples of the latter include some of the less independent resident groups called Mutual Aid Committees (MACs). MACs are groups comprising residents within the same multi-storey building whose goal generally is to promote friendship, mutual reliance, and security among the building¡¦s tenants.

The MACs are partly funded by the government, and insofar as their formation and elections are often assisted and overseen by the District Offices of the Home Affairs Department, they are more susceptible to government influence. In theory, the Department not only has legal authority over the formation and dissolution of every MAC, but also oversees their finances (which are partly provided by the government), as well as their functions and responsibilities. Yet in practice, especially as the result of budget and staffing cuts in recent years, the Department cannot be said to control such groups. The MACs should more accurately be described as receptive to government influence rather than under government control.

In recent years NGOs were relatively free from interference by the colonial government, but now their autonomy is under threat. However like its colonial predecessor, the Hong Kong SAR government has come to rely on NGOs for the provision of social services, finding NGOs to be more cost-effective than government agencies and better able to make use of community resources. This is consistent with the ruling ideology of restricting the size of the public sector to promote ¡§small government.¡¨

Prominent examples of government-NGO partnerships include the welfare agencies. The government has funded many of these agencies to provide important social services or assistance to various client groups in Hong Kong. Most such agencies are corporate members of the Hong Kong Council of Social Service, which has a membership of about 200. These welfare agencies often raise funding and staffing resources from non-governmental sources to provide better services to the community, thus helping to lighten the burden on public funding.

The government also relies on NGOs for services that by their very nature, cannot be met directly by the government itself. One example is the Prisoners' Friends Association (PFA), which provides an ancillary service in prisons by arranging for volunteers to visit inmates with no family connection, to forge ties of friendship and trust that would not be possible for government officials to do.

NGOs have emerged in many areas to fill the gaps and improve the livelihoods of those left out of the government services network. Some important social concerns have been largely ignored by government, whether because of discrimination, financial limitations, ruling ideology, or just lack of government interest. One notable example is the lack of support networks for the territory's more than 150,000 foreign domestic helpers; other examples include the plight of Vietnamese asylum seekers detained in Hong Kong, and the ¡§cage people¡¨, low-income residents who cannot afford proper homes and live in rented cages. Sometimes the government may be successfully persuaded or pressured to fund services initially volunteered by NGOs. Others can only be continued by the sole efforts of the NGOs.

Another, much broader category of NGOs includes groups as diverse as pro-democracy activist associations such as the Joint Association of People's Organizations for Democracy and the April Fifth Action Group, whose primary activity is the organization of petitions or demonstrations to promote democracy; the Hong Kong Journalist Association (HKJA), a trade union that monitors government restrictions on press freedoms and lobbies for journalists; and human rights groups such as the Hong Kong Human Rights Commission and Hong Kong Human Rights Monitor (the Monitor), which are concerned with local and international advocacy on a broad range of human rights issues. NGOs of this type contribute to the articulation of public or minority demands, reform of unfair government policies, publication of detailed information on their respective causes, and rationalization of the law¡Xeven assisting Legislative Councillors in the drafting of new laws or amendments. One of many NGO contributions to legal reform was the 1970s campaign, spearheaded by the Professional Teachers Union, for the use of the Chinese language in official documents. The Chinese language movement paved the way for later NGO campaigns to reform policy. Recently, members of the Monitor assisted a legislator in preparing draft amendments to a bill designed to create a statutory independent council to hear complaints against the police. The Monitor also routinely attended hearings at the former Legislative Council, commenting on prospective legislation from a human rights perspective.

It is NGOs in this category that best exemplify the close links between the right to freedom of association with the right to freedom of expression and assembly. Protest groups like April Fifth Action or the United Front Against the Provisional Legislative Council organize protests, vigils, petitions, and demonstrations, while groups like HKJA, the Monitor, and Friends of the Earth publish hard-hitting critiques of government policy and its shortcomings.


III. The Changing Constitutional Order

The ideological struggles over the transfer of sovereignty have left Hong Kong with a complex legal order. These complexities extend to both international and domestic law, both of which await interpretation by Hong Kong's judiciary, as well as by the central authorities in China. In order to explain the safeguards and restrictions on basic freedoms in Hong Kong it is necessary to provide an overview of the changes surrounding the handover.

Under British rule, Hong Kong's obligations under international law were expressed in both customary international law¡Xi.e. law such as much of the Universal Declaration of Human Rights, which binds even those states not signatory to the relevant treaties¡Xand those international human rights treaties that Britain had explicitly extended to Hong Kong. Customary international law forms part of the common law and is therefore part of the laws of Hong Kong.

The treaties extended to Hong Kong include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention against Racial Discrimination (CERD), the Convention Against Torture (CAT), the Convention on the Rights of the Child (CRC), the Convention against Discrimination against Women (CEDAW), and about 50 International Labour Organization (ILO) conventions. Britain's extension of these treaties to Hong Kong was not without reservations, including the denial of Article 25 of the ICCPR ¡§insofar as it may require the establishment of an elected Executive or Legislative Council in Hong Kong¡¨ when the Covenant was extended to Hong Kong in 1976. The United Kingdom also failed to extend the Optional Protocol of the ICCPR to Hong Kong, preventing Hong Kong citizens claiming to be victims of human rights violations from having standing before the United Nations Human Rights Committee. Its extension of the ILO No. 87 Convention, the Freedom of Association and Protection of the Right to Organize Convention, was also qualified in many ways to enable the government to prohibit affiliation of Hong Kong trade unions with international organizations and formation of cross industry unions, and to ensure government control of the use of union funds.

China has acceded to many of the treaties extended to Hong Kong by the British, including CAT, CERD, CRC, and CEDAW, with two important exceptions, the ICCPR and the ICESCR.

Though China has not acceded to the ICCPR, the Sino-British Joint Declaration of 1984, and the Basic Law have guaranteed its continued force in the Hong Kong SAR. The United Nations Human Rights Committee (UNHRC) has held that Britain's extension of the ICCPR to Hong Kong will retain its force even after the transfer of sovereignty, on the basis that ICCPR protection devolves with territory. Moreover, the Committee considers China's obligations under the Joint Declaration, a treaty deposited at the United Nations, to be a binding commitment.

Despite the UNHRC's position, China has said that it is not obliged to submit periodic reports on its compliance with the ICCPR in relation to Hong Kong (although the British government had done so for many years) on the basis that China itself is not a signatory to the Covenant. The UNHRC has indicated its readiness to be flexible on the modality of the submission of reports to it by Hong Kong. China has for many years adopted a practice of announcing early each year that it was considering ratifying the two international covenants, in an attempt to prevent a resolution to condemn its human rights record at the UN Human Rights Commission. China has recently announced its intention to ratify the ICESCR by the end of 1997 but it remains to be seen whether China will honour this promise.

In English and Hong Kong law, international treaty obligations are not directly enforceable in domestic courts, but must first be incorporated into domestic law. In short, the ICCPR can serve to entrench rights in Hong Kong only insofar as it is incorporated into the laws of Hong Kong. This was first comprehensively accomplished with the 1991 Bill of Rights Ordinance (BORO) and the entrenchment of the ICCPR by the Letters Patent (see below) revised at the same time.

Together the BORO, the Letters Patent, and the English common law form the most important elements of pre-transition domestic law relevant to the protection of human rights.

The English common law played an important role before the enactment of the BORO.

It comprises laws, according to Professor Wesley-Smith of the University of Hong Kong ¡§emerging from judicial decisions that do not owe their authority to statute.¡¨ It embodies important human rights as legal principles, such as the principle that a person has the freedom to do anything unless prohibited by law. One virtue often cited of the common law is its flexibility, its capacity to evolve with changing ideas and circumstances. This adaptability emerges from greater freedom in the judiciary to make decisions based on the dictates of circumstance rather than the more inflexible requirements of statutory law. This emphasis on flexibility, however, is a mixed blessing, since the common law cannot in principle be as reliable in the protection of human rights as a constitution or Bill of Rights and it can hardly resist legislative encroachment. The common law system has also been criticized for its inadequate protection, such as its failure to recognize the concept of privacy and its principle that exercising freedom of expression can be prevented simply when it would invite trouble from a third party.

Though the United Kingdom itself does not have a constitutional document, some of the functions of a constitution for Hong Kong were fulfilled by the Letters Patent. This document was the official letter empowering the Governor of Hong Kong to act on behalf of the British Crown, and together with the associated ¡§Royal Instructions¡¨ to the Governor of Hong Kong, set out rules for the operation of the Legislative Council and the Executive Council (the Governor's cabinet), and describes the method of appointment for members of the judiciary. The Letters Patent ceased to have legal force after the termination of British sovereignty.

Before the enactment of the BORO, the ICCPR was implemented in Hong Kong, as in the United Kingdom, through a combination of common law, legislation, and administrative measures. With Chinese sovereignty less than a decade away, support for a more formal incorporation of the ICCPR into Hong Kong law grew during the 1980s and erupted after the 1989 Tian An Men Square massacre. The Bill of Rights Ordinance was passed in 1991 as an ordinary ordinance, meaning that it could be amended or repealed by future ordinances. However, this was made impossible because the Letters Patent was simultaneously amended to ensure that no legislation passed thereafter could be made that was inconsistent with the ICCPR as applied to Hong Kong. This amendment to the Letters Patent was intentionally given a similar wording to Article 39 of the Basic Law, adopted a year earlier in 1990, in order to protect the Bill of Rights from legislative encroachment both after its taking effect and in post-enactment Hong Kong. Article 39 reads: ¡§The provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong SAR...¡¨ The BORO is a local replica of the ICCPR, making it one of ¡§the laws¡¨ envisaged by Article 39 of the Basic Law.

For several years before 1997 it was clear that China was very concerned to prevent Hong Kong from acting as a centre for ¡§subversion¡¨ of the mainland. Chinese government representatives expressed outspoken hostility to constitutional reforms enacted by the Hong Kong government in the 1990s, which in turn had their origins in the Hong Kong government's wish to allay public fear and insecurity generated by the Tian An Men Square Massacre in 1989. Much of this antagonism has centered on Hong Kong's Bill of Rights Ordinance, enacted in 1991, and on the amendment of pre-existing colonial laws to bring them into conformity with the Bill of Rights.

On October 22, 1995, Xinhua, the New China News Agency, which served as the de facto Chinese embassy in Hong Kong, accused the British Hong Kong government of having ¡§deliberately tried to destroy the rule of law¡¨ and undermining executive power through the enactment of the Bill of Rights Ordinance. Because local and international pressure made it difficult for China to repeal the entire Bill of Rights, it eventually chose to remove three key sections that provided for past and future legislation to be interpreted if possible so as to be consistent with the Bill of Rights and for the repeal of all pre-existing legislation that could not be interpreted so as to be consistent with the Bill of Rights or the ICCPR. These sections were removed by the Standing Committee of the National People's Congress using its power under Article 160 of the Basic Law to repeal Hong Kong laws that are inconsistent with the Basic Law. However no clear explanation has ever been given by China as to why the articles are inconsistent with the Basic Law, confirming the worry that the Basic Law will not be properly interpreted by the central Chinese authorities. In fact as both the Hong Kong Bill of Rights and Article 39 of the Basic Law both apply to Hong Kong the provisions of the ICCPR, the Bill of Rights would seem to be totally consistent with the Basic Law. The real reason for the repeal seems to have been a deliberate attempt to weaken human rights protection in Hong Kong and humiliate the British authorities. However, weakening the Bill of Rights alone will not enable China to achieve this effect because the Bill of Rights simply sets out internationally-accepted minimum standards, which are also provided for in Article 39 of the Basic Law.

The Hong Kong Bill of Rights has already done its job in forcing the colonial government to repeal repressive laws and revise many statutes. Before the enactment of the Bill of Rights, many of Hong Kong's laws contained draconian provisions empowering the government to detain people, censor the media, dissolve societies it disapproved of, and ban meetings and demonstrations. Most of these powers had last been used in suppressing the unrest in Hong Kong in the 1960s during the Cultural Revolution. By 1991, most had long fallen into disuse but remained on the statute book. Between 1991 and 1995 the Hong Kong government revised the relevant statutes (known in Hong Kong as ¡§ordinances¡¨) to remove these powers and bring the ordinances into conformity with the Bill of Rights and the ICCPR.

China initially threatened to restore all the amended ordinances to their pre-Bill of Rights form. The statutes affected would have included the Emergency Regulations Ordinance, Broadcasting Ordinance, Television Ordinance and Telecommunication Ordinance, etc. In the end it mainly targeted two: the Societies and the Public Order Ordinances. The Standing Committee of the National People's Congress (SCNPC) exercised its power of repeal under Article 160 of the Basic Law to repeal what it described as ¡§major amendments¡¨ to those two ordinances. In a revealing example of the SCNPC's unfamiliarity with the need for legal precision in a system of government based on law, the ¡§major amendments¡¨ were nowhere listed or defined. The repeals were ordered to take effect on July 1, 1997. In April 1997 the office of the Chief Executive Designate issued a consultative document on changes to the two ordinances that would have imposed restrictions so sweeping that the proposals provoked ridicule and were extensively watered down before being put to the Provisional Legislative Council. The two ordinances and the amendments recently passed will be discussed in detail later in this report.

In post-handover Hong Kong the key elements of domestic law essential for human rights are the common law system, the Basic Law, and the Bill of Rights¡Xthough not without the repeal of significant sections. However, these protections are likely to be inadequate due to the defective constitutional arrangements that the Basic Law itself provides, and the inept approach and lack of understanding shown by the central authorities and the Hong Kong SAR authorities towards human rights and the rule of law, as discussed below.

On July 1, 1997, the Basic Law of the Hong Kong SAR, adopted in 1990 by the Chinese National People's Congress, came into force. It incorporates China's commitment in the Sino-British Joint Declaration, signed in 1984, that the socialist system and policies of the mainland would not be practised in Hong Kong, a region to be vested with ¡§a high degree of autonomy.¡¨ It makes detailed provisions for the continuation of Hong Kong's existing economic and social system, and civil rights. It guarantees that the judicial system previously practised in Hong Kong shall be maintained, except for those changes consequent upon the establishment of the Hong Kong Court of Final Appeal. It provides that Britain's common law system, long the bedrock of its domestic jurisprudence and considered by many to be in itself an adequate safeguard of human rights, will remain in place except where explicitly repudiated. The laws previously in force in Hong Kong, specifically, the common law, rules of equity, ordinances, and subordinate legislation and customary law are guaranteed to be maintained. The colonial constitutional documents, the Letters Patent and Royal Instructions, as well as British legislation applicable to Hong Kong, like Acts of Parliament, cease to be effective on July 1, 1997. Chinese National laws shall not be applied to Hong Kong except for those six laws already listed in an annex to the Basic Law dealing with such matters as the national flag and emblem, nationality, and diplomatic privileges. The Standing Committee of the National People's Congress can only amend the list after consulting an advisory body appointed by China comprising people from China and Hong Kong, but all laws to be included in the list are restricted to those concerned with defence, foreign affairs, or matters outside the limits of the autonomy of Hong Kong.

These promises formed the ¡§basic policies¡¨ of China regarding Hong Kong and were initially set out in the Sino-British Joint Declaration. They are entrenched by the Basic Law in that it prohibits all amendments in contravention of these basic policies regarding Hong Kong. Therefore, although the transfer of sovereignty has brought significant changes to Hong Kong's legal and political landscape, much of the underlying legal and governmental foundation should, at least in theory, remain essentially unchanged.

The Basic Law itself devotes a whole chapter to the rights of Hong Kong residents and guarantees of other rights are scattered through its various parts.

The question remains as to how far those promises will be respected. Already the Basic Law's promise of continued enjoyment of rights and freedoms has been violated by the loss of suffrage. In the Basic Law, China stated that ¡§the Legislative Council of the Hong Kong SAR shall be constituted by election.¡¨ Yet it cannot say that the Provisional Legislative Council, the first law-making body in post-handover Hong Kong, was elected, since it was constituted by an ¡§election¡¨ by a Selection Committee of 400 people, all appointed from Beijing. It is therefore in violation of the Basic Law. Legal challenges to the validity of laws passed by the Provisional Legislative Council, based on that body's unconstitutionality under the Basic Law are pending, although in a recent case, the Hong Kong Court of Appeal has expressed the opinion contrary to the views held by the Bar Association, the Law Society, a large number of legal academics, and legal experts of the human rights community, that the Provisional Legislative Council is lawful¡Xnot as a Legislative Council but an interim transitional body.

China has proposed the return of an elected assembly in the spring of 1998, with election procedure reflecting the provisions in the Basic Law for the First Legislative Council of the Hong Kong SAR. The provisions, which are similar to the provisions for the election of the last colonial Legislative Council in 1995, are far from democratic. Only 20 of the 60 seats will be directly elected. The others will be elected by so-called ¡§functional constituencies¡¨ representing the business and professional interests¡Xlawyers electing a lawyer, chambers of commerce electing a businessman and so forth. In addition, the Hong Kong SAR government has proposed to restrict the franchise in those functional constituencies that have had large electorates, and to restore corporate voting, abolished in 1995, thereby ensuring a very conservative, pro-business, and unrepresentative legislature that may not be a significant check on the power of the executive. The total electorate in functional constituencies will drop from more than two million to about one hundred eighty thousand, a decrease of over 90 percent.

The local judiciary, in the case just mentioned, has also abdicated its responsibility as guardian of liberties and the law. It pronounced that it would not question laws and decisions made by the National People's Congress (NPC) and those of bodies set up by the NPC. For technical reasons this ruling is not formally binding on other courts, but will obviously influence them. The Hong Kong SAR Court of Appeal held that once the court was satisfied that a law or decision was made by such bodies, a Hong Kong court would give effect to it because the court simply has no jurisdiction to question the legality of such laws and decisions. Therefore, although the Chinese Constitution provides for a ¡§One-country, Two system¡¨ arrangement and the Basic Law ¡§guarantees¡¨ that certain basic policies shall not be subject to amendment and that certain procedures are required in order to have the amendable provisions amended, there is in practice no legal remedy when these ¡§entrenched¡¨ basic policies and procedures are not followed by the NPC or bodies formed by it. The rights guaranteed in the Basic Law and the legal and other institutions set up in it will not be enforced against such bodies. This view on the jurisdiction of the court has opened the way for legislative encroachment by the NPC and bodies created by it. This view is also alarming because the NPC is not a genuine legislature but largely a ¡§rubber stamp¡¨ voting for the decisions of Central Government or the Communist Party. The decision means that, with the assistance of the central authorities, the Hong Kong SAR Government is assured that it can do anything it wants to encroach upon human rights and to undermine various institutions of Hong Kong, unless the Hong Kong courts are willing to change their view as to their own role and jurisdiction.

In addition to the removal of these legislative and judicial checks on the operation of the executive through breaches of the Basic Law and of narrowing the franchise, the Basic Law itself contains serious flaws that call into question its effectiveness as a guarantee of basic freedoms.

In breach of the Sino-British Joint Declaration, which provides that the Hong Kong courts shall have the power of final adjudication, the Basic Law provides that in cases involving the need to interpret provisions of the Basic Law concerning affairs that are the responsibility of the Central People's Government, or concerning the relationship between the Central authorities and the Region, the final power of interpretation rests with the SCNPC in Beijing. This means that final adjudication over a wide range of important issues rests with highly political communist officials in Beijing with little knowledge of Hong Kong law.

A further threat arises from Article 23 of the Basic Law, which requires the legislature of the Hong Kong SAR to pass ¡§legislation to prohibit any act of treason, secession, sedition, or subversion against the Central People's Government, or theft of state secrets.¡¨ ¡§Subversion¡¨ is a concept not found in Hong Kong, but which has been used in Mainland China to criminalise peaceful and legitimate criticism of government. Article 23 therefore represents a serious threat to basic freedoms in Hong Kong.

These fundamental flaws highlight the need to amend the Basic Law to provide for better protection.


IV. THE RESTRICTIVE LAWS

In Hong Kong there is no lack of constitutional and statutory provisions safeguarding the three basic freedoms of association, assembly, and expression central to providing an enabling environment for the operation of NGOs.

Article 27 of the Basic Law provides that Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions and to strike.

Article 39 provides that the provisions of the ICCPR, the ICESCR and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. It also provides that the rights and freedoms enjoyed by Hong Kong residents "shall not be restricted unless as prescribed by law." Such restrictions must not contravene the provisions of the covenants and conventions as applied to Hong Kong, that is, as modified by the reservations made for Hong Kong by the United Kingdom on accession.

The Bill of Rights Ordinance (BORO), although no longer reinforced by the Letters Patent and subject to removal of key sections as discussed above, remains in force. It guarantees, among other rights, the freedom of opinion and expression (Article 16), the right to peaceful assembly (Article 17), and the freedom of association (Article 18). These three articles are lifted verbatim from the ICCPR Articles 19, 21, and 22, respectively. As in the ICCPR, a restriction of the above rights can only be "prescribed by law" and if it is necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others" (Article 16 also refers to "rights or reputations" of others but not "public safety").

It remains to be seen how these legal guarantees are respected by the Chinese and HKSAR authorities and how they will be interpreted by the Hong Kong courts.

A. Societies Ordinance

The Societies Ordinance is probably the single most important statute in Hong Kong laws governing the formation, operation, and dissolution of NGOs. It is therefore central to freedom of association and has an important influence on freedom of assembly and freedom of expression. It governs, among other things, how societies may get lawful status in Hong Kong. It provided for a registration system in its earliest version, and then a notification system from 1992, to the end of British rule. It now again provides for a registration system.

The Societies Ordinance was first enacted in 1949. Before that societies in the colony had not been required to register. The aim was to control both triad societies and, perhaps more importantly, political groups at the time of the Communist takeover in China. The enactment was a significant departure from the practice in the United Kingdom where people could associate freely (and still can) without the need to register with, nor to notify, the authorities. It sought to restraint the activities of pro-Communist forces, pro-Nationalist forces and other possible oppositions in Hong Kong in the same scheme as triads.

Triad societies have been and are still a serious problem in Hong Kong. They are secret societies whose members are bound by ties of mutual loyalty and which specialize in extortion, blackmail, control of prostitution and illegal gambling, trafficking, and smuggling illegal immigrants. Gang warfare between different triad groups is not a rare occurrence and sometimes results in murder. Most of those imprisoned in Hong Kong are members of triad societies. As triads present a very serious social problem few would object to government efforts to control them by law. However, there is always the danger that the authorities may abuse powers suitable for use against triads by using them against law-abiding NGOs whose criticisms the Government dislikes. Such a risk is high in Hong Kong as the Societies Ordinance from its inception has attempted to regulate ordinary societies together with triad ones subjecting them to similar if not exactly the same control regime. Although gradually some differentiation, mostly on penalties, has been made in the Ordinance after many amendments, the combination in one law is still a real threat to the freedom of association.

The Societies Ordinance, typically that of 1988, provided for a very draconian scheme of control and supervision until substantially amended in 1992, a year after the enactment of the Bill of Rights. The pre-1992 Ordinance was so inconsistent with international human rights standards that the colonial government had to include a temporary saving section in the BORO to enable it to survive for another year so that the government could amend it substantially.

The pre-1992 Ordinance required all local societies, except those registered under other statutes like the Trade Unions Ordinance or other exempted societies, to apply for registration or exemption with the "Registrar of Societies" after its establishment. Societies established solely for religious, charitable, social or recreational purposes or as a rural committee (i.e. a villagers association in the New Territories) might be exempted from registration, but application specifically for exemption was necessary. Lists of registered societies and exempted societies were kept in two separate registers for public inspection. No activities other than establishment of a society were allowed until it had been registered or exempted.

The Registrar appointed by the Governor was the Commissioner of Police, or in certain cases the Secretary for Security (the senior Hong Kong Government official responsible for security matters, more senior than the Commissioner of Police). The Registrar was empowered to refuse or cancel a registration or exemption on various grounds including that:

its office-bearer or a group of members had been convicted of or connected to an offence against the Ordinance;

its constitution did not contain matters required by the Ordinance or the Registrar;

the local society was connected to any political organization established outside Hong Kong;

it was likely to be used for any purpose prejudicial to peace, welfare, or good order in Hong Kong;

it influenced or attempted to influence the conduct of management of any school, or any teacher or students, and such influence was political or was prejudicial to the conduct of such school or welfare, or good order of such teacher or student.

Office-bearers of a society whose registration or exemption had been cancelled were not allowed to become office-bearers of other societies unless approved by the Registrar. Appeal against such decisions could be made to "the Governor in Council" (the Governor in consultation with his Executive Council).

The Governor in Council might also dissolve a registered or exempted society if he was satisfied that the society was being used for purposes incompatible with peace, welfare or good order in Hong Kong.

Registered societies were subject to more stringent controls and interference than exempted societies. The Registrar had power to enter their offices and meeting places at any time including their meeting time, and might even prohibit the use of any place for their meeting or place of business.

However, all societies, registered or exempt, were subject to many outrageous powers of the authorities to supervise, interfere and even ultimately control them in many respects. Prior approval by the Registrar was required for amendments to the constitution of a society. The Registrar could also order its constitution to be amended as he so prescribed. He had the power to require information on constitutions and rules, its list of office-bearers and members and their particulars, number and venues of its meetings held, and any other information about a society which he might specify. The Registrar could order a society to desist from activities which appeared to him inconsistent with its objects. These powers of control were supported by offences with stiff penalties created to ensure compliance.

If the Registrar believed that a society was being used for purposes prejudicial to peace, welfare, or good order in Hong Kong he might, with or without force, enter and search a place suspected to be its place of meeting or business and search persons there or escaping from there.

All triad societies or societies which used triad rituals, were outlawed as unlawful societies but so also were local societies which were not a registered or exempted society and had not applied for registration or exemption within fourteen days after their establishment.

Persons who were members of or assisted an unlawful society, or attended its meeting, or knowingly allowed its meeting on their premises committed criminal offences.

Any police inspector or officer of higher rank, could, with or without force, with or without assistance, enter and search any place including the home of any person, seize suspected documents and other things connected to an unlawful society, and arrest all persons there if he had reasons to believe that a meeting of the society was being held there or its documents and other artefacts were there. The property of an unlawful society could be forfeited.

Furthermore the Registrar had the power to summon any person whom he believed to be able to give him information on an unlawful society. The person summoned was required by the Ordinance to produce all documents he possessed and answer truthfully on oath all questions put to him.

A foreign society was deemed to establish as a local society and required to register under the Ordinance if it operated in Hong Kong.

Although the ICCPR was extended to Hong Kong in 1976, it seemed that the pre-1992 Ordinance was one designed for a totalitarian regime had little respect for international human rights standards. The registration system amounted to requiring the consent of the authorities to operate, especially its grounds for refusing registration, exemption or dissolution were vague and wide, very different from those permitted in the ICCPR, and leaving too much unguided discretion to the authorities. They were totally inconsistent with international human rights standards as laid down in the ICCPR. There could not be criminal justice with all these powers operating, not to mention the enjoyment of the freedom of association. Fortunately, many of these powers had fallen into disuse for some years before 1992 and the birth of the Bill of Rights finally cleared many of them from the statute book.

The colonial government was in a dilemma attempting to bring the Societies Ordinance into line with BORO while trying to leave as much power as possible to itself. Were it not a sunset government, perhaps the amendment might have been more cosmetic. The uneasy compromise resulted in a 1992 Ordinance with restrictive provisions and severe penalties, which were at odds with international human rights standards, but which was still the most liberal version in Hong Kong's history.

The registration system was replaced in the 1992 legislation with a notification system. The Registrar was renamed "Societies Officer" who was again the Commissioner of Police. Within a month after the establishment or deemed establishment of a local society, it was required to inform the Societies Officer in writing of its name, objects, addresses of its principal place of business and premises it occupied, and names of office-bearers of the society. The Societies Officer would then list the name and addresses of the society in a list of all societies open to inspection free of charge at his office. Similar notification was also required in setting up a branch. Every office-bearer of a group committed an offence if it failed to notify the Societies Officer, although the group or its branch would not automatically become an unlawful society unless a prohibition order was made.

In processing a notification the Societies Officer could require a society to change its name within a specified time if its name was identical or similar to another group or was misleading. The society so aggrieved might appeal to the Secretary for Security.

The 1992 legislation provided that, if the Societies Officer "reasonably believes" that a society "may be prejudicial to the security of Hong Kong, or to public safety or public order", he was required to notify the Secretary for Security and might "recommend the making of an order prohibiting the operation or continued operation of the society". The Secretary for Security might then gazette a prohibition order after, unless impractical, affording the society an opportunity to be heard or to make written representations. The society or its members could appeal against the prohibition to the Governor in Council. All societies under a prohibition order in force, were unlawful societies. Being members or office-bearers of an unlawful society, inciting others to become so, assisting it financially or by other means, attending its meeting, or knowingly allowing a meeting of it or its members, were criminal offences.

The 1992 Ordinance no longer empowered the Governor to dissolve a society. The power to prohibit any society from having connection with any political group outside Hong Kong was also abolished, which caused criticism by China.

On the recommendation of the Societies Officer, an office-bearer of an unlawful society, whether convicted or not, and a person convicted as a member of an unlawful society, might be prohibited by an order of the Secretary for Security from becoming office-bearer of any other society for a period of five years unless with the consent of the Societies Officer. A person aggrieved could appeal to the Governor in Council. Contravening such prohibition was again an offence.

The Societies Officer's powers of entry, search and seize were narrowed down but were still very alarming. He might, the 1992 Ordinance so provides, "where he reasonably believes that it is necessary to do so in connection with the performance of his functions under this Ordinance, at all reasonable times enter into any place or premises which he has reason to believe is or are kept by any society or by any of its members as a place of meeting or place of business. The "necessity" required by the Ordinance is all from his point of view and not the objective one required by international standards. The "reasonableness" so required, perhaps except the one with respect to time, was only reasonable to the Commissioner of Police himself. There was no safeguard to guide the exercise of the Officer's "discretion". The power does not require any warrant from a magistrate except when the place is also used for dwelling purposes. The language of the provision is so vague that it can be used to harass legitimate societies and their members.

The Societies Officer's power to require information was restricted to such information as he might reasonably require for the performance of his functions under the Ordinance. A new legal obligation was imposed on a society to notify the Societies Officers of any change in its name, objects, office-bearers or principal place of business within a month of the change. Every one of its office-bearer committed an offence if a society failed to do so.

Although the Ordinance represented a great step forward in the realization of the freedom to associate, its provisions were still not up to the standards set in the ICCPR. Some of the problems of the 1992 Ordinance are considered together with its 1997 amendments by the incoming administration which has retained most of the 1992 provisions but expanded many of their weaknesses.

The 1997 amendments came against an unfortunate background as part of a package of China's effort to emasculate the Hong Kong Bill of Rights. The 1992 amendments to bring the Societies Ordinance "in line with" the Bill of Rights had been rejected as "major amendments" "in contravention of the Basic Law" by the Standing Committee of the National People's Congress (see page 6 above).

It was also widely known that Article 23 of the Basic Law also requires the enactment of legislation in the HKSAR "to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies"(page 8 above). Chinese officials have repeatedly reminded everybody that Hong Kong should not be used as a base of subversion against China. Sympathizers of Beijing have also criticized the fact that a local society was no longer prohibited from having connections with foreign political groups. The message was clear China wanted to narrow down the freedom of association in Hong Kong in breach of the promises made to protect freedoms and rights.

Against this background, CH Tung, then Chief Executive Designate, published in April 1997 a consultation document setting out his proposals to amend the Societies and the Public Order Ordinances.

He proposed to reintroduce a system of registration, and to add "public health or morals", "protection of rights and freedoms of others", and to replace "security of Hong Kong" in the 1992 legislation with "national security", as grounds for prohibiting societies. Moreover, political societies in Hong Kong having "connections" with "foreign political bodies" or with "aliens" would be prohibited. Political societies were widely defined to include all those whose members included members of the Legislative Council and whose activities included assisting those members with their functions in political activities relating to government institutions and comment on public affairs as their main objectives." "Connections" were also so vaguely and broadly defined as to cover cases where any group:

directly or indirectly, affiliated with foreign political groups, or received financial assistance from any foreign organizations or individuals;

having any of its policies determined by, at the suggestion, or in collaboration with foreign political organizations; or

the management or decision process of it controlled, directed, influenced, or participated directly or indirectly by foreign political bodies.

Foreign political organizations would include any foreign or Taiwan government, its political subdivision and its instrumentality, foreign political parties, and international political organizations.

Such definitions would have stopped most legitimate contacts by local societies working on issues of public interest with international or foreign bodies and even foreigners. A group promoting human rights standards as elaborated by UN treaty bodies in public policy could be prohibited. The Hong Kong branch of Amnesty International would need to sever ties with its parent organization. A local socialist political party would find it dangerous even to draft a joint position paper on labour rights with a foreign counterpart. An Australian lawyer an "alien" practicing in Hong Kong paying his subscription to his professional body, the Law Society, would result in it being banned.

These proposals were so extreme and ill-thought out that there was strong public outcry both in Hong Kong and in the international community.

Contrary to what most people had expected, the Chief Executive Designate responded to the public pressure with quite substantial concessions particularly in relation to the definitions of local and foreign political organizations and that of "connections". "Political body" now means a political party or an organization purporting to be one, or an organization whose principal function is to promote or prepare a candidate for an election. "Foreign political organization" is limited to foreign political party or government and its political subdivision or agent. The reference to "aliens" has been removed. "Connections" are also narrowed down to all direct or indirect financial support or sponsorship from, affiliation to, participation in decision making by, or having policy determined by foreign political groups.

These concessions made have removed most of the immediate threats to most NGOs but there are serious dangers lying in the 1997 amendments enacted, controversially, by the Provisional Legislative Council (see page 7 above) which should not be taken lightly.

One of the new grounds of prohibition introduced by the 1997 amendments is: being "a political body" having "connection with a foreign political organization or a political organization of Taiwan."

Societies which do not and will not directly take part in elections would not be caught directly by these changes. However, the broadly couched restriction may still have a chilling effect on civil society in Hong Kong. Societies with foreign linkage may be discouraged from, as one of their means, fielding candidates in elections or trying to have elected representatives of their own to promote their causes neglected by main-stream political parties. This restriction also gives the police excuses to inquire into the expenditures, incomes, and sources of incomes, not only of political parties, but also all societies, making it more likely to be abused. The previous offence introduced by the colonial government of failure in providing information which the Societies Officer "may reasonably require for the performance of his functions under [the] Ordinance" was expressly extended to cover such financial and related information. It may well be that the police are limited by the fact that it is unreasonable to request information on finance from a group which is not involved in elections. Nevertheless, unless a society is familiar with the law and with legal assistance it is difficult to resist a request for such information.

As the restriction covers not only election contributions, it has serious effect on political parties, especially in a place without full democracy. A political party may be deterred from many legitimate activities, for example, say, endorsing a declaration drafted by foreign parties sharing similar platforms, or engaging in joint projects for comparative studies to improve social services with foreign parties funded by a better off partner. Moreover, as the police are empowered to monitor the activities and finance of a political party, an authoritarian government could starve an opposition party by contacting donors to "verify" donation information. All societies should have the rights to achieve its object by political and non-political means free from unnecessary restrictions.

This new restriction finds no basis in the ICCPR. It cannot be said that it is based on "national security" or "public order". Unless substantially narrowed, qualified and clearly provided for, the connections alone cannot be said to endanger "national security" or "public order".

Another serious problem arises from the grounds for prohibiting societies in the revived registration system. The 1997 amendments provide, if the Societies Officer "reasonably believes" that the prohibition of a society "is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others", he may make a recommendation to the Secretary for Security who may prohibit it. The concession made here was just leave out "the protection of public health or morals" originally proposed in the consultation paper as a ground of prohibition.

A fundamental objection to the 1997 as well as the 1992 amendments is that those grounds of prohibition introduced should not be broadly cited in a domestic law as grounds of general restrictions at all. They are designed for the purposes of a Bill of Rights as a constitutional guarantee to limit the restrictions of rights. They should be used as shields not swords.

Article 22(2) of the ICCPR provides, "No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." The purpose of the article was not to provide convenient excuses for the authorities to rely on to restrict freedoms and rights of their people, but to prohibit the authorities' restrictions from going beyond the minimum standards they set. The grounds in it guide the authorities to ensure whether their measures of restriction have gone beyond the acceptable limits in a view to minimize restrictions rather than to maximize encroachment of rights by taking them as broadest permissible restrictions.

Legitimate restrictions of rights are not simply required to be within the scope of the grounds of restrictions set out in the ICCPR. They must also be further limited to those necessary to meet sufficiently important social exigencies to justify their imposition. It is the authorities' duty to prove that there are such social needs and legitimate aims and that they are sufficiently grave. Restrictions must have rational connections to those needs and aims, and must be proportional to them, and cause minimal impairment to the rights. Such restrictions can only be prescribed or imposed by law, which must be clear and unambiguous enough that people know how they are affected and are able to predict the consequences of their own decisions and acts. Falling short of any of such requirements, a restriction is unlawful. Simple incorporation of the ICCPR grounds into domestic laws will exaggerate the permissible scope of restriction and is a misuse of the Covenant.

Neither the colonial nor the HKSAR governments should have copied these grounds into the Societies Ordinance to restrict rights in their respective 1992 and 1997 amendments.

The 1992 Societies Ordinance has copied "public safety" and "public order" from the ICCPR and modified "national security" to "security of Hong Kong" as basis for restrictions. Section 2(4) of the 1992 Ordinance provided the expression "security", "public safety" and "public order" to have the same meaning as in the Bill of Rights, the local replica of the ICCPR.

This was an approach which saved the effort of the drafter and legislature the difficult work of researching and spelling out the concrete and permissible restrictions guided by the ICCPR, the Bill of Rights and the Letters Patent. However this was done at the expense of excessively restricting the freedom of association of the local population. It also set a bad precedent for the incoming administration especially in relation to the inclusion of the unwarranted "security of Hong Kong". Perhaps efforts of restrictions on grounds of public order should have been directed against the demonstrable problem of triad societies only and the language made more specific, like "prohibition of triad societies engaging in crimes as specified in schedule I and II of the Organized and Serious Crimes Ordinance" while the overbroad and unjustified restrictions on other societies should not have been retained.

In the Chief Executive's 1997 amendments "security of Hong Kong" is dropped and "national security" and "the protection of the rights and freedoms of others" are added to the grounds of prohibition. The ICCPR has been used to rationalize the legislative encroachments.

Article 5 of the ICCPR states clearly, "Nothing in this Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant" and "There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing ... on the pretext that the present Covenant recognizes them to a lesser extent." Unfortunately, the incoming administration is doing exactly this in the use of the ICCPR.

Neither the pre-1992 Ordinance, the 1992 legislation nor the 1997 amendments meet the essential requirement of necessity in the ICCPR.

The pre-1992 legislation did not even pay lip-service to the ICCPR.

The 1992 legislation, though providing for interpreting the grounds of restrictions as in the ICCPR, made it sufficient that if the authority "reasonably believes" that the operation of a society "may be" "prejudicial to" those grounds, a society could be prohibited. This was a complete denial of the requirement of necessity. The proper interpretation of the ICCPR is: before the authorities can demonstrably justify that a restriction is necessary, not simply reasonable nor desirable, it is impossible for the restriction to be considered permissible.

The 1997 amendments purport to incorporate the requirement of necessity but what is required is the "reasonable belief" of the security authorities, not any other people, that it was "necessary". So the very purpose of having common objective standards in the ICCPR was defeated by incorporating such a subjective requirement. The United Nations Human Rights Committee has stressed the need for objective universal standards of implementation of the ICCPR (to the extent that it even rejects the doctrine of margin of appreciation enumerated by the European Court of Human Rights) to ensure that the meaning of "necessity" in the ICCPR is not left entirely to a national or municipal court, not to mention to the subjective judgment of the state or municipal security authorities.

Moreover, a subjective concept of "necessity" in the 1997 amendments makes it too ambiguous a law to satisfy the ICCPR requirement of clear prescription in legislation.

Another important aspect of the requirement of necessity is that there must be exigencies serious enough to justify a restriction of rights.

The need for expansion of the grounds of prohibition to "national security" and "the protection of the rights and freedoms of others" in the 1997 amendments has not been demonstrated. From the enactment of the 1992 amendments up to the last day of British rule, the NGOs community has not posed any problems to Hong Kong which could justify the tightening of the leash on societies. Even the then existing grounds did not need to be invoked. No NGO have ever been prohibited nor refused notification by the colonial authorities. Had there been any problem, the grounds of public order and public safety would have been enough to handle it. Indeed, the evidence suggested that the Societies Ordinance could, in respect of groups other than triad societies, be liberalized without serious problem. The problems seemed to be excessive power of control rather than inadequate regulatory provisions.

The use of the term "national security" is particularly objectionable because the concept has frequently been used in China to criminalise the peaceful exercise of the rights of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong especially in the light of Article 23 of the Basic Law.

The consensus of international jurists as enumerated in the Siracusa Principles is that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order". It may only be invoked "to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force". Its inclusion in the Societies Ordinance and the Public Order Ordinance is therefore unwarranted as it is difficult to suggest that a society or a demonstration in Hong Kong will threaten the existence of China. If there is any local and isolated threat to law and order it can be dealt with under the heads of public order and public safety.

The Johannesburg Principles, which are concerned more with freedom of expression, also stress the importance of the requirement of force in imposing restrictions on the ground of national security. They state that freedom of expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite violence, that such violence is likely to be incited, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

However, the ground of "national security" was introduced without any qualification with regard to the requirement of violence or force despite local and international criticism. A concession was made in respect of the definition of "national security" in that it was defined as "safeguarding of the territorial integrity and the independence of the People's Republic of China" while linking its meaning to that in the ICCPR. Logically, it is difficult to understand how the HKSAR's intention to exclude the requirement of force could be reconciled with the ICCPR's meaning of "national security" as outlined in the definition. It is to be hoped that the court would be prepared to impute the requirement of force in the light of the wording of the definition in the 1997 amendments which link the concept to the ICCPR. However the Hong Kong judiciary's narrow interpretation of constitutional protection of rights reduces the prospect of such judicial protection.

Yet another serious consequence of including the national security ground is that it again fundamentally changes the role of the police force. The police are now required to judge whether a society is a threat to the territorial integrity and the independence of the People's Republic of China rather than regulating on grounds of public order and public safety with which they are familiar. As far as the Monitor knows, "the security of Hong Kong" ground in the 1992 legislation has been ignored in practice. It remains to be seen whether this will be the case under Chinese rule. Clearly, this is very unsatisfactory because it means societies are at the mercy of the authorities instead of having genuine legal protection.

The police are not only empowered by the 1997 amendments to conduct political censorship of societies when they apply for registration or exemption. They are also empowered to monitor the activities of societies at all times prohibiting them if required. It should be noted that except for these changes mentioned here, the provisions in the last pre-handover Ordinance remain unchanged and the authorities inherit all the powers in the last pre-handover Ordinance, including among others, the power to inquire, enter, search, and seize. For instance, the Societies Officer has the power to require information reasonably required for the performance of his functions under the Societies Ordinance. Once his functions include such political monitoring, it may be "reasonable" for the police to require extensive information from societies critical of China or groups having "politically controversial" members. Societies, especially opposition political parties, will be under serious threat if the authorities decide to be "proactive".

Not only the vulnerable groups oppose this new ground, apparently many of the police find it difficult to be entrusted with such duties. According to a news report, a spokesperson of an association of police officers has voiced his reluctance to take up the responsibility of deciding whether to prohibit a public gatherings on the ground of national security as a front line officer, saying such issues should only be decided by senior management.

Regrettably, the refusal to include the requirement of the element of force in the ground of national security has already set a very bad precedent for other legislation under Article 23 of the Basic Law.

Both of the 1992 and 1997 legislation suffer from other defects. They probably do not meet the requirement of proportionality but only in relation to penalties for non-triad offences. Every office-bearer of a society commits an offence punishable by a fine of HK$10,000 on summary conviction for simply being disorganized, i.e. if the society fails to notify the Societies Officer of a change in its name, objects, office-bearers, or principal places of business within a certain time. The fact that the offence of attending the meeting of an unlawful society (not being a triad society) can be committed without any knowledge that the society is unlawful (as oppose to the express requirement of knowledge in the crime of allowing the meeting of an unlawful society on premises) seems outrageous. An office-bearer of a society which is prohibited while he is in office might be prohibited from becoming office-bearer to another society for five years by the police even if he has never been convicted, which is contrary to the principle of presumed innocence.

There are other means of forming a lawful society under other ordinances, such as registration under the Companies Ordinance or Business Registration Ordinance as a company or a partnership respectively. The scheme of control by the Societies Ordinance cannot really be avoided because the 1997 amendments have made it possible for the authorities to de-register a company or partnership if registration under these ordinances is intended to circumvent the registration system under the Societies Ordinance. Most of other forms of organizations like MACs and trade unions are subject to their respective scheme of control which also make it possible for the authorities to dissolve such organizations.

B. Trade Unions Ordinance

Hong Kong has numerous trade unions although the proportion of the working population who are unions members is believed to be low compared with other industrialised countries. Trade unions are however subject to restrictions aimed at cutting down their political activities. One of the first acts of the HKSAR government has been to suspend a law passed by the Legislative Council dissolved on the day of handover, at the instigation of trade union legislators. That law removed several sections of the Trade Unions Ordinance which had been the subject of reservations to ILO Convention No 87 on Freedom of Associations. The colonial government acknowledged that the reasons why those reservations were made was to ensure that those provisions would not be consistent the ILO Convention No 87.

The Trade Unions Ordinance provides for a system of registration. Once registered, a trade union has a number statutory immunities essential to a trade union in furtherance trade disputes. The Registrar of Trade Unions, who is not any member of the police force, may refuse to register a trade union if its constitution does not comply with the laws or with unlawful purposes has the same or too similar a name to another union, or is substantially a union the registration of which has been cancelled. Appeal against the refusal or cancellation of registration to the High Court on grounds of merit is possible. Cancellation of registration may be possible in the following cases:

at the request of the union;

the registration was obtained by fraud or mistake;

or if the union's purpose is unlawful;

its funds have been unlawful spent; or

it has willfully contravened the Ordinance even after written notice has been served by the Registrar.

In that form, the Ordinance was indeed much more liberal than the Societies Ordinance.

The old Trade Unions Ordinance before the unionist amendments includes several important restrictions.

It prevented the formation of unions and federations of unions across trades, industries and professions. Apparently, this restriction has not been administered literally giving rise to unions on a larger scale such as the Clerical and Professional Employees Association. The controls on cross-trade federations of unions, however, seems to be more stringent. The largest federations of trade unions, includes HK Confederation of Trade Unions, HK Federation of Trade Unions, The Federation of Hong Kong & Kowloon Labour Unions and Hong Kong & Kowloon Trades Union Council. Although they were and are the most powerful de facto federations of unions in Hong Kong, they have registered under other statutes making them impossible to benefit from the immunities enjoyed by trade union registration. This has highlighted the over-regulation of trade unions in Hong Kong. The rationale of the prohibition was "to prevent essentially political organizations with no genuine interest in their members' welfare from registering as trade unions".

The old Ordinance also prohibited all trade unions from affiliating to or merging with other organizations established outside Hong Kong without the consent of the Governor. Such consent, if given, might be withdrawn at his discretion. The government's reason for such requirement was "to prevent local trade unions from being unduly influenced or directed by political organizations outside Hong Kong".

The Ordinance also required the officers of a trade union to be engaging or have had engaged in the same trade as the union unless with the consent of the Registrar. No person below the age of 21 could become a union officer although the age of majority in Hong Kong had for many years been 18. The rationale of the government was that union officers had to be familiar with the trade and maturity was needed to make proper union decisions.

The old Ordinance, though providing for the establishment of electoral funds to be used directly or indirectly in for financing candidates in elections of public offices in Hong Kong, it expressly prohibited the use of union funds for political purposes other than those mentioned above.

The colonial government's arguments not only contradicted its own ruling ideal of a small government refraining from meddling into the affairs of the community unless strictly required to do so, but they were also inconsistent with the ICCPR requirement that legal restrictions should be imposed only if they were necessary and on recognised grounds. The real reason behind the restrictions seems to have been the government's desire to protect business and to stop the development of a strong trade union movement and possible organised political opposition.

All of these restrictions (except that the minimum age for becoming an union officer has been lowered to 18) have been abolished by the unionist amendments during the final session of the former Legislative Council dissolved at the handover.

About two weeks after the handover, the Provisional Legislative Council passed a bill by the HKSAR government to suspend the unionists' amendments to enable a detailed examination of their impact, together with some other laws passed by the dissolved legislature including a law passed to provide for collective bargaining. It reversed the law to such effect as if it had never been enacted.

After the completion of this report, the HKSAR government was reported in the news as stating that it would only abolish the provision with respect to the use of union funds for political purposes; the law on collective bargaining and legislation would be scrapped. The other amendments would be reintroduced. If the unionist amendments largely survive, the Trade Unions Ordinance will be a reasonably good piece of legislation basically in conformity with the ILO Convention No. 87 and the ICCPR.

Only two professions are barred from forming or joining trade unions. The first one includes disciplinary members of the police force. This appears to be consistent with the provision of the ICCPR that Article 22 "shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right."

Before the end of the discussion on the restrictive laws on societies, we have to mention the very unsatisfactory common law definition of charities and the related law on taxation.

In English common law, a group which seeks to change the laws or policies, or seeks to preserve them, cannot be charitable. The group is a political organization engaging in political activities. This is so even though its object is very commendable like the promotion of the observance of human rights.

In a 1996 English case, Amnesty International failed in its argument before the English court that to promote the observance of human rights, which involves the effort to change the government's laws or policy, is merely the observance of the law.

The common law's sweeping definitions of political activities and organizations have made it difficult for most societies in Hong Kong to promote human rights or the rule of law while at the same time getting the benefits of charitable status. This common law principle probably needs to develop to recognize human rights organizations which base their work on legal principles, otherwise legislation may be required to update the common law.

The Inland Revenue Ordinance exempts charitable institutions and charitable public trusts from all taxes except in certain circumstances. It includes no statutory definition of charities and should be amended to bring Hong Kong more in line with the case law in many other countries.

Another provision which governs taxes on societies enacted in the 1950's and 1970's also needs to be updated. It provides that a society or trade association, which receives from its members not less than half of its gross receipts on revenue account including entrance fees and subscriptions shall be deemed not to carry on a business and therefore its incomes are exempted from taxation. However, it does not define "receives" making it possible to include donations from non-members. The Inland Revenue Department has a guideline to exclude such donations from the "receipts" rendering societies less liable to be taxed. This good practice should also be included in the law. Indeed, non-profitable societies which distribute no dividends and whose members receive no financial or material interests should be exempted from all taxes altogether. Their donors should also be exempted from tax for the donations made to such groups.

C. The Public Order Ordinance

The Public Order Ordinance is the most important document in Hong Kong in respect of the exercise of the right of assembly. Its 1967 version, which attempted to consolidate laws originally scattered in various statutes, was introduced during the most serious riots in Hong Kong¡¦s history, and was therefore most oppressive. Major amendments were made in 1970, 1980 and 1995 under British rule, with the last one enacted with some delay after the enactment of the Bill of Rights. Though not without serious problems, the 1995 Ordinance was the most liberal one in Hong Kong's history. Unfortunately, because the purpose of the 1995 amendments was to bring the laws in line with the Bill of Rights, they were rejected by the Chinese authorities in the same package to emasculate the Bill. As already discussed, the SCNPC declared that the ¡§major amendments¡¨ made in 1995 to the Ordinance were not to be adopted as laws at the handover. Immediately before the handover, the incoming administration released proposals to tighten the laws in a consultation paper. With minor concessions, these were passed by the Provisional Legislative Council despite strong opposition among the NGO and legal community and the general public.

Like the Societies Ordinance, the history of the Public Order Ordinance has strong connections with developments in Mainland China. The 1967 Ordinance was overwhelmingly biased towards stringent control, with little respect for freedom of assembly, as a result of the strong desire for stability and public order prevailing at a time of severe social unrest both within Hong Kong and in Mainland China due to the Cultural Revolution across the border. Serious social injustice and inequalities were also reason for the riots, re-inforcing the authorities¡¦ desire for control.

The 1967 Ordinance set up a licensing system requiring all public gatherings, with limited exceptions, to get prior approval. The Commissioner of Police was granted broad power to prevent and disperse public gatherings.

Under the 1967 Ordinance, public gatherings included all public processions and public meetings of ten or more persons. Public processions included any procession in, to, or from a public place. A place was public if the public or a part of it had access for the time being. Public meetings were all meetings held in a public place. Meetings covered gatherings or assembly of persons held for any purpose other than those held for the purpose of any public body. Those minor exceptions were those meetings exclusively for religious purposes or regulated under the Places of Public Entertainment Ordinance, some of which required police permission under that latter Ordinance. So practically, all public gatherings were caught by the system although it was clear in an ordinary person¡¦s eyes that many of them were gatherings taking place in ¡§private places¡¨ for private purposes. Even school seminars, academic conferences, funeral congregations, private ceremonies, creditors meetings to which the public might have access were subject to police approval and control.

The licensing system was wide open to misuse and abuse. Licences would only be granted to a gathering if the Commissioner was satisfied that it was ¡§not likely to prejudice the maintenance of public order or be used for any unlawful or immoral purpose¡¨. The Ordinance also specifically provided that if an applicant or any person or society associated directly or indirectly with the application had a record of contravening the Public Order Ordinance or other law or other licences under any law, the Commissioner might refuse the application. Even if he considered that such persons, although not named in the application, might be ¡§likely¡¨ in his opinion to be concerned in the organizing of the public gathering, he might refuse the application. He might also refuse simply because a public gathering had been advertised or publicized. He could specify the route of a procession. Conditions might also be attached to a licence. The Commissioner might cancel or amend the conditions of a licence at any time if it appeared to him to be necessary or expedient in the interests of public order or for preventing the carrying out of any unlawful or immoral purpose.

In practice, these powers were delegated to members of the police force, in particular, those in the Licensing Office at the police headquarters and front line officers of the rank of inspector or above.

These grounds for refusal, cancellation or attaching conditions were broad and imprecise giving the police extremely wide discretion to refuse or interfere with public gatherings. The personal judgement of the Commissioner was required instead of any objective test. ¡§Necessity¡¨ was overridden by ¡§expedience¡¨ and ¡§likeliness¡¨. The rights of past offenders against any law or licence condition were violated without there being serious or valid connections between their past records and their applications. The prohibition on publicity and advertising until a licence had been granted could be used as a means to make the organization of a public gathering very difficult, especially as a last minute approval would be of very little use if the meeting was really intended to be public. Such a last minute approval differed very little in effect from a last minute refusal.

Channels of appeal were very limited. Appeals from decisions made by the Commissioner in relation to the refusal, cancellation, or conditions attached were only administrative and had to be made to the Governor. Judicial control was limited to judicial review, that is, basically restricted to procedures rather than merits of the actual decision unless no reasonable person would have reached such a decision.

The 1967 Ordinance also empowered the Commissioner to prohibit a public gathering in any area, premises or place or on any particular day if it appeared to him to be necessary or expedient in the interests of public order to do so.

The Commissioner was also given the sweeping general powers to control and direct the conduct all public gatherings and specify the routes and the time of all processions, and the extent to which speeches and music might be amplified and broadcast, if it appeared to him to be necessary or expedient in the interests of public order to do so. These general powers to direct and control in the name of public order placed the exercise of freedom of assembly and expression almost entirely at the mercy of front line police who, without exception, were delegated with such powers.

A police officer had the power to prevent, stop, and disperse a public gathering if it was not licenced or its licence had been contravened. A police inspector or an officer of a higher rank might stop or disperse any public gathering, even if it was licenced or did not require a licence (e.g., because it was held exclusively for religious purposes or not held in a public place), if in his opinion it was causing or likely to lead to a breach of peace. In relation to a non-religious public gathering, he might vary its place or route whether or not it required a licence. Prevention measures might include closing down adjacent public places to the public for such time as was considered necessary. To exercise these powers, the police might issue such orders as they might consider necessary or expedient, including entering any place of gathering.

Wide powers of entry, seizure and search were also provided for. A police officer was empowered to enter any place where he knew or had reason to suspect that any person assembled there was about to commit a breach of the peace or that any person who had lately engaged in any unlawful purpose had escaped into there. A police inspector or an officer of a higher rank might, with necessary support as required, enter and search any place where he knew or had reason to suspect that an offence under the Ordinance was being or had been committed there or that evidence of such offence could be found there. He could seize, remove and detain anything which appeared to him likely to contain evidence. Officers assisting him in exercising these powers might also detain and search any person there and stop and search any vehicle or vessel.

Offences were created to ensure compliance with the above controls and prohibitions. Persons who advertised, organized or participated in an unlicenced public gatherings, contravened a licence condition, failed to obey the police¡¦s general powers of control and direction, their special powers to prevent, stop, or disperse a public gathering, or the related powers of entry, stop, search, seizure and detention, and closure of public place were guilty of various offences. Moreover, an unlawful assembly was formed by three or more persons who took part or formed part of a public gathering without a licence, or who failed to obey the general powers of the Commissioner to control and direct, or the special power of the police, over gatherings. Every person who continued to participate in such an unlawful assembly or organized, convened, participated in, or assisted an unlawful assembly, was guilty of an offence, including persons who were unaware that it was illegal or who had other reasonable excuses.

The Governor might, if he was satisfied that it was necessary in the interest of public order, order a curfew requiring everyone or certain categories of persons in any area to stay indoors during any stated hours. He could also declare any area or place a closed area.

The Governor in Council might prohibit the holding of all public gatherings or a particular type of public gathering in Hong Kong or any part of it for a period up to three months if he was satisfied that by reason of "particular circumstances existing in Hong Kong or in any part¡¨ of it, it was necessary for the prevention of serious public disorder to do so. This power has remained in the Ordinance without amendment except the replacement of the word ¡§Governor¡¨ with ¡§Chief Executive¡¨. This power would be more appropriate if it were contained in Hong Kong's Emergency Regulations Ordinance which deals with public emergency. That Ordinance now contains stringent amendments, made after the enactment of the Bill of Rights, to ensure that it would be invoked only in narrow necessary circumstances with substantial procedural and other safeguards to avoid abuses and limited to those derogatory measures proportional to the needs of the situation.

The 1967 Public Order Ordinance expanded the common law and defined a number of offences including unlawful assembly, riots, rioters demolishing buildings, damaging buildings or machinery, riotously preventing the movement of a vehicle, ship, or train, forcible entry into premises, forcible occupation of premises, fighting in public and proposing violence at public gatherings. The most criticized offence was the offence of unlawful assembly:- ¡§when three or more persons, assembled together, conduct themselves in a manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly provoke other persons to commit a breach of the peace, they are an unlawful assembly.¡¨ Any person who took part in such an assembly was guilty of the offence of unlawful assembly. The Ordinance provided expressly that it was immaterial that the original assembly was lawful and there was no requirement that those attending had to share a common purpose. When a participant in an unlawful assembly committed a breach of peace, it became a riot and every participant in the assembly was guilty of the offence of riot.

The Ordinance also created the offences of intimidation and intimidating assembly. Any person who, without lawful excuse, did or said anything, or uttered or distributed any publication, which was likely to or might make some other person apprehensive as to what may happen to that person or his family, his property or business, or his building or home or was likely to compel or induce others to do something which they were not obliged to do, or refrain from doing something they were entitled to do, or who watched any place or its approaches, or persistently followed some other person about from place to place, was guilty of the offence of intimidating. Such an offence would have criminalised picketing and much legitimate speech and activity. An unlawful assembly with participants doing or saying something or behaving in a manner which was likely to or might alarm or intimidate some other person or make some other person apprehensive as to what might happen to him or any other person, was defined as being an intimidating assembly and every participant could be penalized with heavy penalties.

The 1967 Ordinance was the most oppressive Public Order Ordinance in Hong Kong¡¦s history with extremely sweeping power granted to the authorities buttressed by broad and vague offences and very little attention paid to freedom of assembly and expression. Through amendments made in 1970, 1980 and 1995, it has been substantially improved. After the enactment of the Bill of Rights in June 1991, the colonial government resisted any further liberalization of the Public Order Ordinance claiming that it was already in line with the Bill of Rights. Only after strenuous lobbying, (and probably after Chris Patten had become the Governor) the administration agreed to amend it. After the 1995 amendments and an amendment in 1996 made by a private member¡¦s Bill sponsored by James To, the Public Order Ordinance remained unchanged until being rolled-back to an earlier version at the handover on 1 July 1997. The pre-handover version was the most liberal version of the Ordinance. Despite the roll-back introduced by the incoming administration, the post-handover Ordinance contains many of the same provisions as the pre-handover Ordinance.

The following paragraphs describe the state of the law represented by the pre-handover Ordinance. Important improvements made in 1970 and 1980 are also mentioned here where appropriate.

The most important change was the replacement of a licensing system by a notification system. A notification system in respect of public meeting was installed in 1980 after a 1979 review. The review had been triggered by public outcry in response to the conviction of peaceful demonstrators who had been arrested on their way to petition the Governor for rehousing a group of boat dwellers. The notification system was extended to public processions in 1995. The replacement of the application system by notification was more consistent with the concept that everybody had the freedom of assembly without the need for applying for a licence before one could exercise the right. However, in reality, a notification system with the power to prohibit and restrict a public gathering might still constitute a breach of international human rights standards if such prohibitions or restrictions were not within the prescribed limits of the ICCPR.

The definition of meeting was narrowed in 1970 to exclude meetings which no person assumed or attempted to assume control over, thus excluding those which could not reasonably be expected to apply for a licence beforehand. In 1980 the definition was further reduced to cover only meetings for the purpose of discussion of issues of concern to the general public or a section of it. It excluded a funeral, meetings exclusively for the purpose of any public body or for carrying out of any duty or exercising any power imposed or conferred by any Ordinance, or for social, recreational, cultural, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character. This definition survives the transfer of sovereignty. Such a definition is an improvement but it is unclear whether the Ordinance still applies to the academic discussion of political issues.

Notification is not required for a meeting of not more than 50 persons, a meeting in a private premises where the attendance does not exceed 500 persons, or a meeting in a registered school organized by the latter or its accredited society.

Notification is not required for a procession of not more than 30 persons, or a procession which is not on a public highway or in a public park.

Many public meetings were exempted from notifications after successive amendments. However, not all meetings in a private place were not exempted from the requirement of notification. No cogent evidence in the last two decades suggests that a meeting in private place could be a problem if notification was abandoned.

In the pre-handover Ordinance, the Commissioner of Police might prohibit a notified public meeting or a public procession ¡§where he reasonably considers such prohibition to be necessary in the interests of public safety or public order¡¨. In the post-handover Ordinance, he might prohibit a notified public meeting or object to a notified procession similarly except that the grounds of objection were expanded by the incoming administration to include ¡§national security¡¨ and ¡§for the protection of the rights and freedoms of others¡¨ in spite of strong opposition within the local and international communities. This expansion of grounds is the most significant amendment introduced by the incoming administration.

The criticisms of the grounds of prohibition raised in respect of the Societies Ordinance (see above) are also applicable in relation to the Public Order Ordinance. The ICCPR has been misused to provide for the broadest restrictions without demonstrable necessity. In particular, more than a thousand demonstrations had taken place peacefully between the enactment of the 1995 amendments and the handover, and there were absolutely no social mischief which needed to be addressed by widening the grounds of prohibition and restrictions. The test of necessity in the eyes of the authorities also substantially denied the objective test required by the ICCPR. The language was too broad, giving the authorities too much discretion while making it difficult for individuals to tell how their rights were affected.

National security as a ground of restrictions was particular unnecessary and dangerous, especially when it was not qualified by the element of force. It is difficult to image how a peaceful demonstration in Hong Kong could endanger the territorial integrity of the People¡¦s Republic of China. Isolated problems of law and order could always be dealt with by the existing very broad powers. When questioned on the over-wide discretion given to the police, the then Chief Executive Designate explained that guidelines would be published to guide the exercise of discretion by the police and only restrictions demonstrably necessary in a free and democratic society would be imposed. These guidelines were released in mid-July. They specify, in dealing with notifications relating to public gatherings, that the ground of ¡§national security¡¨ would only be invoked by the Commissioner or an officer not below the rank of Senior Assistant Commissioner, and would be invoked only ¡§if he reasonably considers it necessary to do so in order to safeguard the territorial integrity and the independence of the People¡¦s Republic of China¡¨. ¡§In coming to his decision, the Commissioner will take into consideration, among other things, whether or not the declared purpose of the notified public meeting or procession is to advocate separation from the People¡¦s Republic of China including advocacy of the independence of Taiwan or Tibet.¡¨ The absence of any reference to the element of force indicates that the HKSAR government is not ready to read into the relevant provision in the Public Order Ordinance an implied requirement of an element of force. As the guidelines have not been so far put to test by an actual case of a ban on national security grounds, it is still unclear whether they will be used to prohibit or restrict all peaceful public gatherings with separatist overtones.

In dealing with public gathering in progress, when deciding whether to take appropriate action on the grounds of ¡§national security¡¨ to regulate a public meeting or procession in progress, the police officer in charge may consider, among other things, whether or not any act is likely to cause or lead to an imminent breach of the peace; and whether or not any person at the public meeting or procession is advocating separation from the People¡¦s Republic of China including advocacy of the independence of Taiwan or Tibet.¡¨

The guidelines do not seem to have incorporated the modern jurisprudence of ¡§national security¡¨ as enumerated in the Siracusa Principles or the Johannesburg Principles, nor the United Nations Human Rights Committee interpretation of national security in the Korean labour case. But it is clear that the police are now required by the guidelines to conduct political censorship. It is very doubtful whether the guidelines could be said to be limiting the restrictions of freedom of assembly to those demonstrably necessary in a free and democratic society. Peaceful advocacy of separatism is allowed for example in the United Kingdom and Canada as evidenced by the existence of the Scottish National Party in the United Kingdom and the Parti Quebecois in Canada and their advocacy activities.

Moreover, according to the Basic Law, the courts of the HKSAR ¡§have no jurisdiction over acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases¡¨ and the HKSAR courts ¡§shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state � whenever such questions arise in the adjudication of cases¡¨. The Chief Executive is required by the Basic Law to obtain a certifying document from the Central People¡¦s Government before issuing such a certificate. This certificate is binding on the courts. So the court¡¦s judicial control by way of judicial review will be minimal if not absent, unless an extremely vigilant HKSAR court is ready to defend its jurisdiction and the freedom of the Hong Kong people when the ground of national security is raised by the authorities.

Subject to the above criticism, the Commissioner¡¦s power to prohibit has been limited to a certain extent, in that he was not and is not allowed to prohibit a public gathering if he considers that the interests of society could be met by the imposition of conditions.

In issuing a notice of prohibition, the Commissioner has to state the ground or grounds on which the prohibition is considered to be necessary and the reasons for his opinion as to those grounds. This is a safeguard of due process but might still be not very effective as the grounds for prohibition are so wide, particularly since the introduction of ¡§national security¡¨ as a ground.

To address in part the criticism of the unfairness of a last minute decision by the Commissioner, especially as it is an offence to publicize or advertise a public gathering before notification, the Ordinance now provides that the Commissioner¡¦s prohibition order or notice of objection must be issued 48 hours before the gathering if the notice was given in time, that is seven days before the planned gathering; or 24 hours before the gathering if a shorter notice of 72 or more hours was given. Offences of advertising before notification or with less than 24 hours¡¦ notice, and of advertising with the gathering prohibited or objected, have replaced the previous offence of advertising before approval. Prior advertising is no longer considered a ground for prohibiting a gathering. An additional procedural safeguard inherited by the HKSAR government is a requirement that an objection by the Commissioner should be made as soon as possible. It is doubtful whether this offence serves any good purpose or is necessary when there is already an offence of unlawful assembly while a notice of objection is in force.

The fundamental objections to such a system of control remain the having such wide grounds for restrictions and the broad and imprecise grounds in the drafting of the Ordinance.

The general power of the Commissioner to control and direct has been revised. Both in the pre-handover and post-handover versions, this power may be invoked if the Commissioner, (or in reality the front line officer in charge who is delegated the power) ¡§considered it to be necessary¡¨ in the interests of one of the grounds of restriction discussed above. While the ¡§necessary or expedient¡¨ qualification in the 1967 formula has been narrowed down to ¡§necessary¡¨ but it is still ¡§necessary¡¨ in the eyes of the Commissioner rather than the objective test required by the ICCPR. Another defect lies in what may be done to control and direct the conduct of public gatherings. This is not limited to ¡§necessary and minimum measures¡¨ but may be anything the Commissioner thinks fit.

After the private member¡¦s bill amendments in 1996, the power to control and direct music and speech broadcast at public gatherings was subject to more stringent limitations than other powers. The power in the pre-handover Ordinance could be invoked only if the Commissioner ¡§reasonably considers it to be necessary to prevent an imminent threat to public safety or public order¡¨ but this has been watered down in the post-handover Ordinance to omit the need of imminent threat and to add the new grounds introduced by the post-handover amendments.

An appeal board was introduced by the 1995 amendments. This has been maintained in the post-handover Ordinance. The Board was appointed by the Governor or Chief Executive as the case may be. It is composed of non-police members chaired by a retired judge. It was and is responsible for appeals against the Commissioner¡¦s prohibitions of, or objection to, public gatherings, and against any condition attached to a licence.

The restrictive nature of the pre-handover and the post-handover versions of the Public Order Ordinance is reflected in the lack of modification over the years of the excessive powers and broad definitions of crimes introduced three decades ago.

The powers of the police force, laid down in the 1967 Ordinance discussed above, to prevent, stop, and disperse a public gathering and the incidental powers of entry, search, seize, arrest, and detention remain substantially unchanged in 1995 with only a minor amendment in respect of the powers to prevent a breach of the peace by any inspector or police officer of higher rank. His powers may now be invoked if such an officer ¡§reasonably believes¡¨ that the gathering was likely to lead to a breach of the peace, i.e. with the additional safeguard of a reasonableness test. However the test is only a subjective one, ¡§reasonable¡¨ to the officer himself, instead of the objective one required by the ICCPR.

Likewise, the offences remain largely the same, although statutory defences and qualifications have been improved. The offence of refusing or neglecting to obey the Commissioner¡¦s order under his general powers of control and direct is now narrowed down to refusal or willful neglect. Similarly an offence will only be committed if a person knowingly contravenes any conditions attached to a public gathering, or knowingly enters a closed area. Secondly, an organizer or his representative who fails to be present throughout a public gathering may now cite reasonable excuse like illness for his absence. A organizer of or participant in an unauthorized assembly who takes part or continues to participate in an unauthorized assembly may rely on lawful authority, reasonable excuse, and absence of knowledge as a defence. Similarly reasonable excuse and lawful authority defences are available to a charge of possession of offensive weapons in both pre- and post-handover of the Ordinance. The offence of unlawful assembly is now committed only be those who conduct themselves in a disorderly, intimidating, insulting or provocative manner.

While the Commissioner has no longer power to prohibit public gathering in a certain location for a specified time, the Chief Executive in Council still has the power to prohibit public gatherings in Hong Kong or part of Hong Kong for up to three months. No amendment has been made to narrow down such an excessive derogatory power.

In conclusion, although there have been many improvements to the law, the Public Order Ordinance could further be liberalized to address the problems discussed above to bring the law in line with the ICCPR as entrenched by Article 39 of the Basic Law. In particular, the retrograde changes by the HKSAR authorities should be reversed as soon as possible.

D. The Official Secrets Ordinance

An enabling environment for NGOs does not exist if there is lack of freedom of expression.

Unlike those governing association or assembly, laws governing freedom of expression in Hong Kong are not to be found in one or two major statutes, but are scattered around the statute book.

The unfortunate history of Hong Kong as a colony has burdened it with a lot of draconian legislation. The pre-1991 colonial government maintained the British stance that the laws of Hong Kong conformed with the ICCPR. However, during and after the enactment of the Bill of Rights, it became apparent that many of the statutes in Hong Kong were inconsistent with it. Pressure inside and outside the legislature forced the Government to review and revise various statutes to ensure conformity.

At the same time, Hong Kong faces a serious problem in the form of the legislation anticipated under Article 23 of the Basic Law, which requires the HKSAR legislature to enact legislation to prohibit treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets.

In the last days of British rule, the colonial government attempted to make a deal with China to get an Official Secrets Ordinance ("OSO") enacted and the Crimes Ordinance, dealing with treason and sedition, amended in the hope that these laws could be preserved as a way of meeting the Article 23 requirements and finally amended by replacing "the United Kingdom" with "China" and "Governor" with "Chief Executive". The attempt was partly successful. China has accepted the new Official Secrets Bill but not the Crimes (Amendment) (No. 2) Ordinance amending the Crimes Ordinance.

Before the enactment of the OSO, the UK Official Secrets Acts 1911, 1920, 1939 and 1989 had been extended to Hong Kong. The colonial government promised to localise the law but after drafting of a bill, it was not released to the colonial legislature or the general public. The Government secured China's agreement to the Bill which was then introduced into the legislature and passed with all important amendments defeated.

The OSO has an important impact on the local NGO community as well as the general public. The Ordinance prohibits the disclosure of six categories of information, namely, security and intelligence; defence; international relations; information obtained in confidence from other countries or international bodies; crime; and special investigations through statutory warrants. The Ordinance provides only one general defence, that the accused one did not know or had no reason to believe that the information disclosed was in a prohibited category. Strong demands for inclusion of a public interest defence (which excuses the disclosure where it is sufficient in the public interest) and a prior disclosure defence (which absolves the disclosure of already publicly available "secrets") were rejected. Hence NGOs or the press disclosing serious fraud, serious wastage, scandals, or serious human rights abuses in or by the Government might be punished even these disclosures serve important purposes in checking the government or in protecting individuals in the community. Nor is free publication or comment on information already in the public domain possible if the information is classified. The Ordinance prevents discussion instead of disclosure by denying a prior publication defence. This is an unnecessary restriction on the freedom of expression.

The Ordinance prohibits spying or espionage in an imprecise "catch all" manner. Its UK equivalent has criminalised a non-violent demonstration immobilizing aircraft at an RAF station on the basis that the demonstration was at a prohibited place and the action was "for a purpose prejudicial to the safety or interest of the state". It also makes it possible that the immediate neighbourhood of important petition areas are no longer "open" for demonstrations, restricting the freedom of assembly in an entirely unexpected way.

Its other problems include a reversion of burden of proof on the part of the defendant to prove that he has no knowledge, while damage is to be inferred without actual requirement of cogent proof, e.g. from the disclosure of confidential information obtained from an international body.

E. The Crimes (Amendment) (No. 2) Ordinance

The colonial government failed in its attempt to introduce new offences of secession and subversion in the Crimes (Amendment) (No. 2) Bill. Despite inclusion of these Mainland concepts in an attempt to meet the Article 23, when the colonial Government presented the bill to the Chinese authorities they declined to endorse it.

The Ordinance introduces minor amendments to the offence of treason.

Sedition has a notorious history of being used by the United Kingdom to prosecute political dissidents in its colonies. It was developed to criminalise speech having the effect of bringing the government into contempt, and has been criticized as incompatible with representative government. The government's Bill attempted to narrow down the offence by qualifying the sedition intention as an "intention of causing or creating public disorder or a public disturbance".

Secession and subversion are concepts foreign to the common law system. Subversion has been used in China to prosecute the peaceful expression of political demands. It was defined in the Bill as "any unlawful act with the intention of overthrowing the Government of the United Kingdom by force" punishable for a maximum sentence of ten years. Secession was defined as "incites or conspires with any other person or who attempts to supplant by force the lawful authority of the Government of the United Kingdom in respect of any part of the United Kingdom or in respect of any British dependent territory", punishable with up to ten years' imprisonment.

Pro-democracy legislative councillors deleted all provisions in the Bill intended to introduce the two new offences. They also deleted another provisions relating to treasonable offences. The provision designed to narrow down sedition intention with the element of force was enacted. The law, as it now stands, provide for a narrowed offence of sedition. Although qualified by the terms of seditious intent, the offence is still capable of misuse. The last time the offence was invoked in Hong Kong was in 1950's against a pro-China journalist. It is uncertain whether it will reemerge in Hong Kong. Until the offence is eradicated from our statutes it will continue to threaten our freedom of expression. The Chief Executive has been reported as saying that the more controversial legislation under Article 23 will be dealt by the First Legislative Council of the HKSAR. Hence it is very likely that after the elections for the Council in May 1998, the HKSAR government will present a Bill to introduce the offences of secession and subversion in Hong Kong.

F. Emergency Regulations Ordinance

Another important ordinance which may have serious implications for freedom of expression is the Emergency Regulations Ordinance. This Ordinance, enacted in 1922, provides for the power to make regulations in emergencies. The Governor in Council, now the Chief Executive, is empowered on any "occasion of emergency or public danger" to "make any regulations whatsoever which he may consider desirable in the public interest". Such regulations may provide for, among other things, censorship, and the control and suppression of publications, writings, photographs, communications and means of communication.

According to the ICCPR, "[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Party to the present Covenant may take measures derogatory from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation." This Article lays down the prerequisite for an emergency and limits on the derogatory measures to be taken in such occasion. The Article has been domesticated in Section 5 of the Hong Kong Bill of Rights Ordinance, which replicates the above provision but goes on to provide that "these measures shall be taken in accordance with the law."

Derogatory measures "taken in accordance with the law," necessarily implies some kinds of necessity, rationality, and proportionality. Leaving everything to the subjective and ill-defined criterion of "desirable in the public interest" in the Ordinance could hardly be said to satisfy the requirements laid down in the Bill of Rights and the ICCPR. The Government's Third Report to the United Nations Human Rights Committee admitted that there were in fact no defined criteria for invoking the powers in the Ordinance. This is particularly unsatisfactory as the Ordinance itself provides for tremendous powers and allows derogatory measures restricting human rights, save for some uninfringeable rights like freedom from torture. Clearly, this Ordinance needs substantial revisions to bring it in line with international human rights standards. Recent pre-handover efforts to amend it only succeeded in removing the draconian regulations made under it. The principal Ordinance remains intact.

G. The Basic Law

Besides the Emergency Regulations Ordinance, another possible source of assault on freedom of expression in Hong Kong at times of real or alleged emergency is the Basic Law. According to Article 18 of the Basic Law, if there is a turmoil within the HKSAR which endangers national security and is beyond the control of the government of the Region, the SCNPC may decide that the Region is in a state of emergency. In such a case, the Central Government may issue an order applying the relevant national laws in Hong Kong. An important challenge to Hong Kong is to ensure that such "national law" conforms with international standards.

H. The Telecommunication Ordinance

Another possible source of danger is the Telecommunication Ordinance. Section 33 provides, "Whenever he considers that the public interest so requires, the Governor [Chief Executive], or any public officer authorized in that behalf by the Governor [Chief Executive] either generally or for any particular occasions, may order that any message or class of messages brought for transmission by telecommunication shall not be transmitted or that any message or any class of messages brought for transmission, or transmitted or received or being transmitted, by telecommunication, shall be intercepted or detained or disclosed, to the Government or to the public officer specified in the order."

This provision enables the government to block, to monitor, and even to disclose telecommunication messages without the consent of the sender and receiver. This power can be invoked on broad and vague grounds of "public interest" and is subject to no independent supervisory body. No complainants will come forward as individuals or organizations will probably not be able to notice that their communication are being monitored unless the messages are constantly delayed or halted. This power will cover telephone conversations, fax messages, e-mails, data sent through wire or wireless means, and pager messages i.e. practically everything sent using telecommunications. It may even be used to stop the operation of an internet website.

In response to a question raised by a Legislative Councillor, the Secretary of Security replied on 11 November 1992, "Orders under section 33 of the Telecommunication Ordinance to intercept telephone transmissions are made when the public interest so requires and only in cases involving the prevention or detection of serious crime, including corruption, or in the interests of the security of Hong Kong. Such orders are authorized by the Governor, who has to be satisfied personally that these criteria are met. It would not be appropriate on law and order and security grounds to disclose details of orders made, including numbers."

A Morning Post report suggested that the Independent Commission Against Corruption has employed ten more staff and extra devices to increase its tapping capability from 50 to 80 lines.

Such interception is so intrusive to a group or an individual's privacy that the law should be reformed to avoid abuse. At the very least a court warrant should be required for such interception. The present provisions are simply too vague, lack proper safeguards and urgently need reforms.

Such interference with communication is inconsistent with the right to privacy and correspondence as enshrined in the Basic Law, the Bill of Rights, and the ICCPR.

An attempt was made to establish a system to regulate interception of communications for the prevention of crime in restricted circumstances where they are necessary and non-arbitrary. The new legislation is intended to replace an order made under section 33 of the Telecommunication Ordinance with court authorization. When the legislation comes into force, unauthorized interception of telecommunication will be an offence. The enacted statute, the Telecommunication Interception Ordinance, awaits the appointment of a day for it to take effect. The HKSAR is not in favour of the Ordinance and may shelve it forever. Section 33 of the Telecommunication Ordinance therefore remains unaffected for the present.

I. Other restrictive laws

Over the years, the colonial government has amended or repealed quite a number of legal provisions to bring the law more in line with the Bill of Rights. Some with success, like the Control of Publications Consolidation Ordinance which empowered the government to close a newspaper for a maximum period of half a year was repealed in 1987.

However, there is still legislation which threatens freedom of expression and needs to be amended. For instance, the Prison Rules prohibit prisoners from sending letters to the press intended for publication which disclose names of Correctional Services Department officers or fellow inmates. Section 5 of the Defamation Ordinance provides for a criminal libel offence where any person who maliciously publishes any defamatory libel, knowing it to be false, is liable to two years' imprisonment. This is a potential threat to freedom of the press. The Interpretation and General Clauses Ordinance empowers the police to search and seize journalistic material as evidence, and for investigation even if such information has been gathered in confidence. The Prevention of Bribery Ordinance prohibits any public disclosure of an investigation by the Independent Commission against Corruption prior to an arrest being made although it does not prevent disclosure of information of a general nature which does not name suspect. Some of these provisions can be justified in certain situation. However they are open to abuse if a Government does not have due respect for basic rights and freedoms.

V. Government Regulations in Practice and

Government Restrictions Beyond the Law

A. Dealings with the Hong Kong government

This section explores the reality of government restrictions and red tape from the perspective of NGOs and community activists. From difficulties in the Societies Ordinance registration process, to restrictions on fund raising and Chinese government tactics against pro-democratic organizations in Hong Kong, what follows are the major issues cited by Hong Kong NGOs when asked about the day-to-day reality of government restrictions.

i. Notification and registration

The Licensing Office of the police force has seldom rejected notification or application under the two Ordinances as indicated in the table in Appendix I. Thousands of societies were established and notifications accepted without problem. No notifications of public meetings and public processions have been refused under the 1995 Public Order Ordinance.

Those ten refusals of notification of establishment of societies since the 1992 Societies Ordinance came in force were all because these societies had been registered under other ordinances or instruments: three under the Companies Ordinance, five under the Business Registration Ordinance, and two under Royal Charters. There were three refusals in 1994 of public procession licence applications under the pre-1995 Public Order Ordinance. One was turned down by the police who said the demonstrators refused to apply for a licence and give further detail although the police were informed of their intention to organize a procession. Another application was rejected because the route was on a highway under repair. The last one was rejected because its route was on a highway essential for container traffic to the container port. The Monitor has no information on earlier refusals.

The Monitor was also told that no charges have been brought against society office-bearers for delay in supplying information on changes of particulars of the societies.

Since the handover, no societies have been refused registration. No prohibition or objection to public gatherings has been issued. A warning has been made by the police to the Hong Kong Alliance in relation to a procession held on 1 July 1997 to demand democracy and human rights in China. The Alliance received a warning because the number of participants in the demonstration turned out to be more than the organizer had estimated in figures given to the police. The warning was unwarranted as the organizers had done their best to estimate the turn-out but it was a demonstration open for the public to join.

ii. Control and harassment

There are still problems to be addressed. Demonstrators are very often required to stay in "demonstration areas" sometimes quite far away from their demonstration targets. A common condition attached to public processions is the prohibition on the use of amplification equipment while a vehicle is in motion. Although the purpose is said to be for public safety, it is arbitrary because moving vehicles of candidates in Legislative Council elections are allowed to broadcast their messages. Moreover, it is perfectly acceptable to the police that the demonstrators carry such equipment on their back and walk on the highway or they use such equipment on a moving trolley on the road the real difference is that this restriction makes life more difficult for the organizers and demonstrators. The restriction is particularly objectionable because front-line police officers are often very keen to order vehicles to move as fast as possible making it impossible to broadcast. Police herding of support vehicles also make it impossible for these vehicles to stay with other demonstrators on foot in the same procession. In at least one case, the front-line police had ordered procession vehicles to turn into side streets, making them completely separate from the other demonstrators on foot.

The police in Hong Kong do harass lawful demonstrators in several ways. Firstly, the number of police, particularly at small demonstrators, is often far more than is reasonably necessary. Secondly, the police often film demonstrators, walking alongside them and pointing video cameras at them. Thirdly, the police sometimes carry out unnecessary identity card checks on demonstrators.

At the climax of protests just after midnight on the night of the handover, the slogans of the April Fifth Action Group and the Hong Kong Alliance were unexpectedly drowned out by the dramatic opening of Beethoven¡¦s Fifth. The music was being blasted from police loudspeakers. The police claimed this was done to calm the nerves of everyone involved, but it in fact served the function of preventing the voices of the protesters from continuing to reach the numerous foreign dignitaries and media attending the event.

iii. Bureaucratic obstacles

According to Mr. Robert Brook of Refugee Concern (RC) and Lawyers for Refugees (LR), the amount of time it took to receive notification under the societies ordinance was a hindrance to the establishment of LR. It took nearly two months from the time the application was submitted until acceptance was made official. During this time, LR was unable to open a bank account. Such limitations make initial financial arrangements, recruitment, and publicity much more difficult in the initial stages of organization. Moreover, the application process time-table for LR represented the fastest possible turnaround, since there were no bureaucratic holdups. The situation may deteriorate if the authorities should decide to enforce the law strictly on the ground of national security.

In many areas, but especially in dealings with government bureaucracy, the Hong Kong Alliance noted that larger, well-known organizations with prominent members and important media and political connections receive preferential treatment. They said that smaller organizations are often silently blocked through inefficiencies and discrimination or defeated in wars of attrition with minor officials. The April 5th Action Group, for example, was not allowed to place a monument in front of the Xinhua news agency during a rally earlier this year to commemorate the Tian An Men Square massacre. By contrast, the Hong Kong Alliance ¡X a network of 216 NGOs devoted to democracy in Hong Kong and China ¡X was permitted at the same demonstration to cover the entrance to Xinhua, including the Chinese national symbol, with its banner.

iv. Activities on public lands

Though Urban Council lands¡@Though Urban Council land¡X which include many of the most attractive venues in the city, including Victoria Park, where the June 4th vigil is held annually ¡X are supposedly made available for use by non-profit organizations, Ms. Robyn Kilpatrick of Amnesty International Hong Kong Section reveals that ¡§the Urban Council is a bureaucratic nightmare¡K

They put up so many bureaucratic obstacles, so many restrictions and regulations, that sometimes it seems impossible to get your exhibition off the ground. This has been going on ever since I came to Amnesty 14 years ago. It is very difficult to get venues. If you do get one of the Urban Council venues, then you still face so many restrictions. If they don¡¦t get you in one way they get you in another.

Ms. Lisa Hopkinson of Friends of the Earth concurred with this sentiment, describing Urban Council as a ¡§bureaucratic difficulty,¡¨ noting that ¡§for collecting signatures, or for holding any event, for fundraising or any other purpose, on public grounds, you have to apply for a permit and give them notice. A big venue, like Victoria Park needs to be reserved some six months in advance; collecting signatures at the Star Ferry pier requires at least 6 weeks advance notice.¡¨ Moreover, applications for assemblies and processions must describe their proposed activities to the Council in excruciating detail, including among much else, the number of banners, their size and content, and the number and type of loudspeakers to be used.

v. Demands for expenditures relating to demonstrations

The Hong Kong Alliance noted that the government required them to hire an inspector at the cost of HK$10,000 (US$1,280) to certify a podium at a proposed demonstration. While some costs associated with demonstrations should be anticipated by the sponsoring organizations, Ms. Leung Oi-ling of HKA challenged the necessity of the HK$10,000 podium inspection, as well as similar fees the organization had been forced to cover in the past, and expressed her fear over the possible abuse of such government demands under the SAR regime.

vi. Difficulties in obtaining government information

Since one of the most important functions of NGOs is to monitor government activities, the government can stifle NGO efforts by denying them access to important documents. The process involved in obtaining government information is exemplified by the difficulties faced by Friends of the Earth (FoE) in their efforts to get environmental impact reports on major government projects, such as the new airport. Their concerns were echoed by many, including Helpers for Domestic Helpers and the Society for Community Organizations (SoCO). Ms. Hopkinson of FoE noted that the government has become more transparent since Legislative Council member Christine Loh began five years ago to press for more open access to information. Before that time, environmental impact reports on all public construction projects were kept confidential. These reports are now available to the public, though many other government-sponsored environmental analyses remain restricted, such as a recent government effort to predict Hong Kong¡¦s future energy consumption. FoE feared that the lines of communication with the government would become more convoluted after the transfer of sovereignty, erasing the progress recently made. Mr. Ho Hei Wah of SoCO expressed concern over the fact that Hong Kong, unlike the United States, has no ¡§sunshine law¡¨ to promote transparency.

B. PRC attempts to influence NGO operation in Hong Kong

i. The ¡§United Front¡¨ tactic and administrative absorption

The basis principle of United Front work is divide and rule. Given a community of diverse affiliations, the Chinese communists have long employed the following strategy: identify the first enemy and then try to achieve its elimination by making them the enemy of the rest of the community. Often, the government¡¦s second and third enemy will be convinced to desert the first. When the first enemy is gone, they are replaced by the second and the process repeats. One example of this strategy in contemporary Hong Kong concerns the Confederation of Trade Unions (CTU), a liberally-minded, independent organization. HK has various groups of trade unions, including CTU, the Federation of Trade Unions, as well as a pro-Taiwan group called Hong Kong & Kowloon Trades Union Council. China has targeted CTU for extinction. To accomplish this end, they have lent support to the FTU, using traditional tactics including the provision of advisors from Beijing and the promise of political success. Links have already been formed between the FTU and the Provisional Legislature. ¡§Administrative absorption¡¨ refers to a practice by which the government tries to absorb community leaders into the government itself, leaving them with no power separate from the government. Such leaders then spend time organizing government sponsored fun fairs rather than demonstrations.

ii. Parallel pro-Beijing groups supported by Chinese authorities to compete with existing groups

In their 1996 Annual Report, the Hong Kong Journalist Association (HKJA) noted that the Chinese government has lent extensive financial resources to a new journalist union in competition with HKJA, the Hong Kong Federation of Journalists. Journalists in the pro-Beijing Federation have special access to Chinese officials, a important asset in the field. Fighting for press freedom is not part of the Federation¡¦s mission, and their membership is limited by their conservative stance. If the PRC goal in helping to establish the Federation was to stifle the activities of HKJA and to promote pro-Chinese journalism, they have achieved little success. Far from threatening HKJA¡¦s prominence, the formation of the Federation actually spurred membership in the HKJA, increasing the overall numbers by 30%, from 539 to almost 700.

VI. Economic and social context:

the extra-governmental environment for NGO work

A. The economic health of NGOs

Of the many NGOs surveyed in preparation for this report, nearly all cited finances as the most debilitating non-political problem, often severe enough to threaten the organization¡¦s continued operation. The most obvious factor behind financial difficulties is the high cost of living in Hong Kong, often named the most expensive city in the world. High expenses, especially soaring rent rates, affect NGOs on two fronts: 1) office space is extremely costly, and 2) a typical NGO salary scheme translates into a wage barely sufficient to meet the cost of living in Hong Kong, making it difficult for regional and international NGOs to compete for the best workers.

Compounding an otherwise onerous financial environment, NGOs concerned with human rights and other social and politically sensitive topics often find it very difficult to attract funding. The first explanation is that fundraising in HK is extremely competitive, with many organizations devoting full-time staff and significant financial resources to attract charitable donations. In other words, high entry costs into the fundraising market mean that many NGOs, already underfunded and understaffed, simply cannot compete. The second explanation, and one often given by human rights NGOs, is that Hong Kong¡¦s people and businesses tend to be pragmatic and result-oriented, leading them to support charities committed to solving tangible problems, such as poverty and pollution, rather than more abstract goals, like rights and freedoms.

B. Fear is a habit

i. At the individual level

The Hong Kong Human Rights Monitor has long noted that many come in praise the organization¡¦s work, but if asked to join they recoil, citing fears over their own livelihood. The local population often feels that they must distance themselves from the human rights community in order to protect themselves from crackdown by employers, who might see them as troublemakers, or the government. Such fears are not completely unfounded. In the past, many activists have in fact have faced difficulties with their employers. One notable example is the 1990 case of a garment worker who participated in a pro-democracy demonstration in front of the Legislative Council building. He was prominently pictured in the news, noticed by his employer, and subsequently fired. The employer never stated explicitly that his dismissal resulted from participation in the demonstration, but it was clear nonetheless, since the dismissal occurred shortly after his photo appeared on the front page of the South China Morning Post. Incidents such as this one constrain community activism by creating a climate of fear.

ii. In the business community

Many in the business community conceive of a tradeoff between stability and rights, supporting the former as means to good business performance. This typical attitude is compounded by the stigma given to those few liberally-minded businessman who voice their opinions or make charitable donations to controversial causes. Jimmy Lai, for example, a controversial businessman with well-known liberal political leanings, tried to make his company public, selling shares on the open market. Despite his solid earnings record, no bank in Hong Kong would entertain his venture, presumably out of fear that future dealings with China would be strained as a result.

C. Threats of censorship

NGOs have described a mixed relationship with the media and concerns over rising self-censorship. As an international city at the center of the Asian communication and transportation network, and with the flood of international media attention surrounding the transfer of sovereignty, relations with the international media have been strong for those organizations with international notoriety. Reviews of the local media coverage and responsiveness to sensitive issues have been far less positive. Editors of local newspapers, especially in the Chinese language press, are often reluctant to feature human rights issues. Perhaps the most important cause of this editorial censorship is pressure from large corporate advertisers ¡X such as Cathay Pacific and Hong Kong Telecom ¡X who are heavily invested in China. Such companies would rather not be associated with liberal publications, fearing a backlash from Chinese authorities, and believing that a positive image of the mainland within Hong Kong will only lead to expanded business opportunities. The NGO community has been aggressive in efforts to bolster coverage of human rights and environmental issues: Amnesty International sponsors an annual Human Rights Press Award, and Friends of the Earth bestows a Green Journalism Award. Despite these efforts, many in the Hong Kong NGO community are disturbed by a perceived increase in self-censorship over the last five years. According to a member of the Asian Human Rights Commission, ¡§coverage of human rights issues in Hong Kong¡¦s press has degenerated over the past 5 years. Human rights related stories that once occupied the front page are now relegated to the inner sections.¡¨

D. Partnerships between NGOs

The NGO community in Hong Kong has flourished to such an extent over the past decade, that partnerships and communication between groups has become not only necessary to avoid the duplication of efforts, but also extremely beneficial, allowing organizations to share expertise and energy. Refugee Concern, for example, described their partnerships with a half dozen other NGOs as extremely constructive. Refugee Concern¡¦s limited mandate means they have little fear of stepping on other NGO¡¦s toes. Yet, for organizations with broader mandates, such as the Human Rights Monitor or Amnesty International, communication is the only way to prevent duplication given the tight resources among NGOs. Such collaboration, though currently at acceptable levels, could be improved. According to Ms. Robyn Kilpatrick of Amnesty, ¡§All of us are so busy working on our own projects that we lack the time adequately to communicate with one another. For this reason I think there is still some duplication of efforts as a result of not enough communication.¡¨

VII. Are the present restrictions necessary in Hong Kong?

As indicated the Societies Ordinance was originally devised to control triad societies. The Public Order Ordinance was initially drafted in 1967, the year of worst riots in the history of the colony. Each was devised to handle the most extreme scenarios, and though they have been liberalized over the years, there remain strict controls on association, assembly and expression that are in clear violation of international human rights standards. Regarding the recent non-acceptance of the 1992 amendments to the Societies Ordinance and Public Order Ordinance, the Consultation Document issued by the SAR Chief Executive¡¦s office suggests that ¡§we must strike a balance between civil liberties and social stability, personal rights and social obligations, individual interests and the common good.¡¨ The clear assumption is that political and social stability not possible without limits on freedom. Yet the contrast between Hong Kong and China in the past decade demonstrates the fallacy in this reasoning. Despite the vehement protests surrounding the transfer of sovereignty, Hong Kong in recent years has enjoyed a great degree of social stability. The liberalizing amendments to the Public Order and Societies Ordinances in 1992 had no noticeable negative effect on this stability. Even after the amendments, the Ordinances leaned towards the ¡§social stability¡¨ end of the spectrum described in the Consultation Document. Yet, if the 1992 amended versions of the Public Order and Societies Ordinances led to no difficulties in maintaining public safety and order, what is the rationale for resurrecting more restrictive versions of the legislation?

Is China hoping to destroy the three basic freedoms in Hong Kong, along with its separation of powers, in order to impose on Hong Kong the Singapore model of economic prosperity without freedom? Such a model will not function in Hong Kong. Singapore has managed to sustain economic growth by minimizing corruption despite authoritarian government. Hong Kong might be able to do the same, but for its intricate connections with the corruption-ridden mainland. So called ¡§red princes¡¨ ¡X children of top Chinese officials are eager to infiltrate the Hong Kong market, and without the freedom of the press, checks and balances, and governmental accountability through universal suffrage, Hong Kong¡¦s profits may be drained off through graft.

The three basic freedoms are thus necessary in Hong Kong even within the profit-maximizing value system of those currently in power. There are other justification of these rights beyond their contributions to efficient society. They are rights guaranteed to the individual not for their instrumental value, but for their intrinsic value.

Evaluation of the laws before ratification of the Bill of Rights in 1991 and the liberalizing amendments of 1992 reveals that if a free society existed in Hong Kong under British rule, it existed despite restrictive laws. Where the British government often took a soft stance on restrictive laws, the Chinese government has a history of doing the opposite. The Hong Kong people tend to think lightly of restrictive laws, arguing that they have not destroyed freedoms in the past. In particular, the Bill of Rights initiative created an undue sense government good will, and an undue feeling of security in the enjoyment of basic rights. Yet, with the advent of Chinese sovereignty, there is no reason to expect that liberty will continue in the face of restrictive law.

Recommendations

In order to address the above mentioned concerns, the Hong Kong Human Rights Monitor provides the following recommendations:

A. Valuing Freedom

As dictated by international law, the HKSAR government should value and prioritize these three freedoms in constructing its policy. Simply increasing order is insufficient justification for a restriction. At every stage, the government should question whether the means it is using are ones which minimally restrict liberty. The three freedoms are freedom of association, assembly and expression.

B. Constructing Better Laws

The HKSAR government should amend the above-described ordinances to eliminate their common defects.

i. Clarify Ambiguous Language

The unclear language of the ordinances, particularly with regard to criminal offenses or grounds for limiting rights, provides the police and other governmental officials with excessive discretion. Adding detailed definitions explicitly based on and linked to the ICCPR (a positive trend already begun to some extent in the new government's amendments to the Public Order and Societies Ordinances) would greatly improve legal clarity.

ii. Narrow Bases for Limitation

The ICCPR requires not just that limitations upon the three freedoms be drawn only from those listed in the Convention, but also that they be justified as necessary and proportional to a specific social aim. The amendments to the Public Order and Societies Ordinances expanding the grounds for restriction provide no such explanation. The government should provide clear, narrow justifications or eliminate these new bases for limitation.

iii. Proportional Offenses and Penalties

As discussed previously, the current levels of fines and jail sentences for violations of the Public Order and Societies Ordinances seem disproportionate to the quite minor legal breaches involved. The HKSAR government should change the ordinances to explicitly link punishment to the level of the offenses, ranging punishment from small fines to larger fines to jail sentences.

iv. Eliminate Unnecessary Governmental Discretion

In addition to eliminating the specific instances of excessive discretion addressed throughout the previous three recommendations, the HKSAR government more generally should narrow the discretion to instances when strictly needed. Its new, more restrictive systems, such as those regarding police approval of demonstrations and registration of societies, should be justified as the least restrictive means to achieve the necessary goal or eliminated from the ordinances.

v. Minimize Regulation

When creating limitations upon fundamental freedoms, the government has the burden to prove that these measures truly are necessary. In analyzing the existing ordinances and constructing new ones, the government always should question whether each measure is strictly necessary to achieve its narrow goals.

C. Improving Application of the Laws

In order for HKSAR to respect the three fundamental freedoms, it must not only improve its laws, but also carefully apply them. The following recommendations are directed at those who interpret and enforce the law.

i. Standing Committee

The Basic Law gives the Standing Committee authority to interpret HKSAR laws and to delegate some of their interpretive authority to the HKSAR courts. We urge the Standing Committee to allow the HKSAR courts to (independently and in accord with international law) interpret laws limiting the three freedoms.

ii. HKSAR Judiciary

We encourage the judiciary to interpret and apply the ordinances in accord with the Basic Law and its international obligations. It should narrowly interpret bases for limiting fundamental freedoms and require that constraints be the least restrictive necessary.

iii. Police

As those who directly enforce the laws, police have a special obligation to use restraint and interpret discretion narrowly. The decision by the Commissioner of Police to limit the use of the new national security exception is a commendable example of this type of behavior. We urge the police to continue to remember that they are not only the protectors of the public from those expressing themselves, but also of those exercising their rights.

¡@

Abbreviations:

BORO: Bill of Rights Ordinance

HKSAR: Hong Kong Special Administrative Region

ICCPR: International Covenant on Civil and Political Rights

MAC: Mutual Aid Committee

NGO: Nongovernmental Organization

NPC: National People's Congress

PRC: People's Republic of China

SCNPC: Standing Committee of the National People's Congress

¡@

Appendix I

Societies and Public Gatherings Statistics

Societies Ordinance

1992

1993

1994

1995

1996

1997
(Up to 31/3)

Notification received

300

735

1090

1099

1052

307

Refusal to notification

0

0

1

6

3

0

Public Order Ordinance

1992

1993

1994

1995

1996

1997
(Up to 31/3)

Notification of public meeting

827

1026

1383

1131

482

114

Public meeting disallowed

0

0

1

0

0

0

Application for public procession licence

309

290

394

401

Not applicable under the new Ordinance

Not applicable under the new Ordinance

Public Procession licence refused

1

2

3

0

Not applicable under the new Ordinance

Not applicable under the new Ordinance

Notification of public procession

Not applicable under the old Ordinance

Not applicable under the old Ordinance

Not applicable under the old Ordinance

15

526

110

Public procession prohibited

Not applicable under the old Ordinance

Not applicable under the old Ordinance

Not applicable under the old Ordinance

0

0

0

¡@

Three Basic Freedoms In Hong Kong

Further reading: Key documents and texts

1.The Sino British Joint Declaration on the Future of Hong Kong

2.The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China

3.The Hong Kong Bill of Rights

4.Societies Ordinance

5.Societies (Amendment) Ordinance 1997

6.Public Order Ordinance

7.Public Order (Amendment) Ordinance 1997

8.Triad Societies in Hong Kong, by W.P. Morgan, Government Press, Hong Kong

Item 1 to 8 should be available from the Hong Kong Government Bookshop, Queensway, Hong Kong

9.Constitutional and Administrative Law in Hong Kong, by Peter Wesley-Smith; Longman Asia Limited

10.Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, by Yash Ghai, Hong Kong University Press, 1997

11.Urgent Business: Hong Kong, Freedom of Expression and 1997, Joint Report by the Hong Kong Journalists Association and Article 19, and successive joint annual reports on freedom of expression in Hong Kong

12.(a) Hong Kong's Bill of Rights, the first 2 years

(b) Hong Kong Bill of Rights, 1994 and beyond

(c) Hong Kong's Bill of Rights, 2 years before 1997

All 3 reports published by Hong Kong University Faculty of Law

13.(a) Countdown to 1997

(b) The Countdown Continues

Reports by the International Commission of Jurists, Geneva

Download the paper


1997 (c) Hong Kong Human Rights Monitor