THE MONITOR¡¦S RESPONSE
TO CIVIL LIBERTIES AND SOCIAL ORDER
CHIEF EXECUTIVE'S OFFICE CONSULTATION DOCUMENT
1. This submission has been prepared in response to the document "Civil Liberties and Social Order" issued by the Chief Executive's Office. In preparing this response Human Rights Monitor has taken account of comments by staff of the Chief Executive's Office at a meeting with Human Rights Monitor and Amnesty International Representatives on 19 April 1997.
The NPC decision to disallow the existing laws
2. Paragraph 1.1. of the document states that on 23 February 1997 the Standing Committee of the National People's Congress resolved under Article 160 of the Basic Law that "major amendments" to the Societies Ordinance and Public Order Ordinance introduced in 1992 and 1995 should not be adopted as laws of the Hong Kong Special Administrative Region.
3. The document does not enter into the question of why these laws have been disallowed under Article 160 of the Basic Law. Article 160 states that the laws previously in force in Hong Kong shall be adopted except for those which the Standing Committee of the National People's Congress declares to be in contravention of the Basic Law. It is quite unclear on what basis the existing Public Order Ordinance and Societies Ordinance can be said to be in breach of the Basic Law. We do not believe that any provision of the Basic Law is breached by either of these laws in their existing form and the Chief Executive's office has confirmed that they are unable to identify any such breach.
4. As para. 2.7 of the document points out, Article 8 of the Basic Law guarantees the continued application of the common law system in the HKSAR. Under the common law system a decision by a decision making body which is irrational or perverse is a nullity. No matter how wide the powers given to a body by a statute those powers must be exercised rationally or the exercise of power is invalid. It is our view that the purported disallowance of these 2 ordinances as being inconsistent with the Basic Law, but without saying why, is arguably irrational and a nullity and that therefore on 1 July 1997 the Ordinances will remain part of the law of Hong Kong. It should be borne in mind that while under Article 158 of the Basic Law the power of interpretation of the Basic Law is vested in the Standing Committee of the People's National Congress, under the same article the Hong Kong courts are to be authorised to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the region. Public order and the law relating to Hong Kong societies are obviously within the limits of autonomy of the region.
5. It follows that in our view there will be no legal vacuum on 1 July. There is therefore no urgency about any new legislation in these important and sensitive areas.
6. However the purported declaration by the NPC has caused confusion and will result in legal challenges either to the validity of the old legislation or the validity of any new legislation. For this reason we believe that the Chief Executive should seek to persuade the Standing Committee of the NPC that it has made a mistake both in legal and practical terms, and urge it to countermand its earlier decision.
7. In disallowing the laws in question the Standing Committee of the NPC acted on the recommendation of the legal sub-committee of the Preparatory Committee. We would suggest that if that sub-committee is to remain in existence its operations and staffing should be reviewed to improve the quality of its output.
Adequacy of existing law
8. The existing regulation of public order and societies in Hong Kong works well. There are no significant problems which require changes in the law. We consider that the American expression "If it aint broke dont fix it", describes the correct attitude towards changes in this field.
Inadequacy of consultation period
9. We likewise believe that this is an area where if there are nevertheless to be any changes they should first be the subject of full and extensive consultation with the very wide range of organisations which would be affected. A 3 week consultation period is not enough for this purpose. We believe that to allow time for everyone concerned to respond a consultation period of 2 months would be appropriate.
Drafting of consultative document
10. The consultation document is drafted in an unhelpful and confusing manner, in that the detailed amendments contained in the Annexes do not correspond to the changes proposed in the text. In several key areas the amendments are much wider than the text indicates. We understand from the Chief Executive's Office that this was not intended. We comment below on the details of the amendments.
11. The document is described as a consultation document. However it nowhere sets out any alternative proposals or options. It is written as if it is a blueprint for legislation. This, combined with the very brief period for responses, led us to question the Chief Executive's Office as to whether it represents a genuine attempt at consultation, or is merely a public relations exercise which will not lead to any alteration of decisions which have already been taken. We were assured that it was a genuine attempt at consultation. In the hope that this is right we offer the following more detailed comments.
COMMENTS ON CHAPTER 3 ¡V IN PERSPECTIVE
12. The suggestion in paragraph 3.3 that recent incidents suggest that the law should be changed to be more restrictive of rights under Articles 21 and 22 of the ICCPR is based on mistakes of facts and fundamental misunderstanding of existing law.
13. We understand from statements from the Chief Executive's office that the reference to demonstrators blocking the traffic in the heart of the business centre is a reference to a demonstration outside the Hong Kong Convention Centre on 11 December 1996 when a number of demonstrators were arrested after they lay down in the road. What the author of the consultation document appears not to know is that at the time the road in question was closed to traffic. There was therefore no question of the demonstrators "blocking the traffic". If they had been blocking traffic they would have been committing the offence of obstructing the highway and could have been prosecuted. There is no need for any change in the law to prevent roads being blocked by demonstrators. Lying down in a closed road as a way of making a protest may be thought by some to be objectionable. However if there is no obstruction it does not harm anyone and is not a crime. If the arrest of those demonstrators shows anything therefore, it is a need for reform of police training and the police complaints system to ensure that the police do not exceed their powers and make unlawful arrests.
14. There are also a wide range of existing laws which deal with the other 2 situations described in this paragraph - intruding into a foreign consulate or disrupting the work of business premises. Trespass and intimidation are both torts giving rise to civil actions. A constable may arrest anyone whose conduct is liable to cause a breach of the peace. Reasonable force can be used to remove a trespasser. Disorderly conduct is an offence under the existing Public Order Ordinance. Present powers to deal with disorderly conduct in a public place are ample.
15. In addition there is in fact so little disorder in Hong Kong that existing powers are rarely invoked. Human Rights Monitor recently inquired of the secretary to the appeals board set up under the Public Order Ordinance how many times the Board had met to deal with appeals against the banning of demonstrations or the impositions of conditions to which the organisers objected. The response was that the board had never met because there had been no appeals, and as far as the Board was aware the Commissioner of Police had not banned any demonstrations since the Board was set up in 1995. During that period there have been over a thousand peaceful demonstrations. Disorder from demonstrations is hardly a serious social problem in these circumstances.
COMMENTS ON CHAPTER 4 -- SOCIETIES ORDINANCE
16. Paragraph 4.3 refers to Article 23 of the Basic Law as prohibiting political organisations or bodies in the SAR from establishing ties with foreign political organisations or bodies. It states that this reflects an earlier similar restriction in the old Societies Ordinance before that was amended in 1992. It is true that under the old Societies Ordinance the registrar of societies could refuse to register a society if he was satisfied that the society was affiliated to or connected with any organisation or group of a political nature established outside Hong Kong. However the whole system of registration of societies was abolished in 1992 because it was recognised to be in breach of Article 18 of the Hong Kong Bill of Rights, which provides for the right of freedom of association, reflecting identical wording in Article 22 of the International Covenant on Civil and Political Rights. Article 18 of the Bill of Rights will continue to be part of the law of Hong Kong after the transfer of sovereignty. The same legal obstacles and objections to a system of compulsory registration of societies will therefore continue to apply after 1 July 1997. Article 39 of the Basic Law also states that the provisions of the ICCPR as applied to Hong Kong shall remain in force.
17. The abolition of the power to deregister a society because of foreign connections has not left the Government powerless to control societies which develop genuinely harmful foreign connections. It is possible for a society to be prohibited from operating under Section 8 of the present Societies Ordinance where the Societies Officer reasonably believes that its operation might be prejudicial to the security of Hong Kong. This power is rarely used but is available if required. If a society has a foreign connection which is not prejudicial to the security of Hong Kong there is no reason for stopping its operation.
18. It should also be noted that the provision in the old Societies Ordinance referred to an affiliation or connection with a foreign organisation. The changes proposed in the Consultative Document go even wider, prohibiting mere financial assistance of any kind, not merely from foreign organisations but from "aliens". This also goes much further Article 23 of the Basic Law, which merely refers to " ties with foreign political organisations ".
19. The implicit justification for the changes contained in paragraph 4.2, namely that it is merely restoring the pre-1992 position is therefore misguided as well as factually wrong. The pre-1992 law, although narrower than what is proposed, was abolished because its provisions infringed human rights law and were unnecessary. The same applies all the more strongly to the present proposals.
20. The comparison drawn at para. 4.3 with the provisions of the European Convention on Human Rights is also misconceived. Article 16 of that Convention provides that the Convention shall not be regarded as preventing the contracting parties from imposing restrictions on the political activity of aliens within the territory of the state. The proposal in this chapter goes much further in that it restricts the political activity of Hong Kong permanent residents by preventing them from soliciting or accepting donations from overseas.
21. The document asserts that such a restriction is necessary for national security. No evidence or examples are put forward to substantiate this assertion. As already explained if there were a real problem of that kind power exists to deal with it under Section 8 of the present Ordinance. In reality, a far more pressing and urgent problem with regard to the security of Hong Kong society is the risk of Hong Kong political organisations being controlled from mainland China in a way that imperils the operation of "One Country, Two Systems". The primary thrust of any new legislation designed to prevent Hong Kong political organisations being controlled from elsewhere should be tackling that problem, on which this document is silent.
22. Paragraph 4.4 states that steps must be taken to prevent Hong Kong from being used for political activities "against China". This begs the question as to whether support for political change in China is to be regarded as "against China" because it is opposed by the current Chinese leadership. Hong Kong has many Chinese citizens, who will be citizens of a Special Administrative Region of the People's Republic of China after July 1, who regard themselves as patriotic, and who wish China to be a liberal democracy with more political freedom than it has today. Some of these citizens are members of a well-known political organisation, the Alliance in Support of the Patriotic Democratic Movement in China. If the Consultative Document is implying that the activities of this organisation or others like it will not be permitted on "national security" grounds or on the grounds that their activities are "against China" this would be a gross breach of the rights of those citizens to speak, assemble and associate freely , as provided for by Articles 19, 21 and 22 of the ICCPR, Articles 16, 17 and 18 of the Hong Kong Bill of Rights; and Article 27 of the Basic Law. Any restriction on political activity because of national security must be strictly limited to organisations which are actively trying to bring about the violent overthrow of the state.
23. In paragraph 4.6 a definition is proposed of political organisations as "those societies which directly participate in political activities relating to government institutions and comment on public affairs as their main objective." It is not clear whether this means that to be a political organisation an organisation must be one that both directly participates in political activities relating to government institutions and comments on public affairs, or one that does either of these things. The natural meaning of the sentence would suggest the former and it is hoped that this is what those drafting the document have in mind. Any definition which adopted the latter meaning would transform into political organisations many organisations which speak out on public affairs but have absolutely no intention of participating in politics, such as Amnesty International, Friends of the Earth, Hong Kong Human Rights Monitor, or the Better Hong Kong Foundation. We have been assured by the Chief Executive's Office that this is not so. However the amendments proposed in the annex have the effect of defining such organisations as political organisations. In addition the amendment proposed would have the effect of defining the Hong Kong Bar Association as a political organisation. The proposed amendments concerned are explained more fully below.
24. Paragraph 4.7 is highly objectionable. It is totally abhorrent to prohibit any society from operating if any of its policies are determined "at the suggestion of or in collaboration with foreign political organisations". This would mean that a mere suggestion originating from a foreign political organisation, if acted on by a Hong Kong group, would result in that group being liable to be suppressed if it engaged in political activities.
25. This paragraph is made even more unacceptable by the wide definition of political organisation. It is objectionable to equate influence with control. Every person and organisation is influenced by a wide range of contacts and pressures. Influence alone is impossible to avoid, is often wholly unobjectionable, and is in any case very difficult to define. While the passage of control to a foreign political group, in the sense that directive power over the organisation is no longer in Hong Kong, may be objectionable, there is no reason to attempt to prevent mere influence.
26. Paragraph 4.8 sets out a definition of "foreign political organisation" which is both vague and wide. 4.8(a) refers to a "a foreign government or a political subdivision of a foreign government". This presumably means that a "non political subdivision of a foreign government" would not be affected. Presumably an example of the latter might be a state-run university, or the national post office. However the vagueness of the phrase will generate enormous uncertainty. The phrase "instrumentality" is even wider and vaguer. An instrumentality, if it means anything at all, means something used as an instrument. Therefore if a private organisation is encouraged by a government to give funds to a Hong Kong organisation that gift will be political because the organisation is being used as an instrument for providing funds. We understand that the term instrumentality has been lifted from a United States statute. As far as we are aware the term has not been used in English or Hong Kong statutes.
27. An "international political organisation" at (d) would include the United Nations, the European Union, ASEAN, or the British Commonwealth. The proposals in paragraphs 4.7 and 4.8 would thus, among other things, prevent any organisation which comments on public affairs from ever receiving a grant from any United Nations organisation.
28. In addition the term "alien" used in these paragraphs would have ridiculous consequences if applied literally. "Alien" is defined in the Interpretation and General Clauses Ordinance as a person who is not a citizen of the United Kingdom or of a commonwealth country or of the Republic of Ireland. It bears no relationship to the various definitions in the Immigration Ordinance of persons having the right of abode in Hong Kong. Large sections of the Hong Kong population are aliens under this definition. If, as proposed in the annex, the definition is amended to mean that aliens are persons who are not citizens of the People's Republic of China the results will still be absurd, as they will mean that any organisation within the wide definition above which accepts a financial assistance, including a donation or a subscription, not merely from a visitor to Hong Kong, but from a Hong Kong permanent resident who is not citizen of the People's Republic of China, will be liable to be suppressed.
29. Representatives of the Chief Executive have suggested that some of the more extreme effects of the wording used in these proposed amendments is not intended, and that no action would be taken against most of the organisations which would be caught by such wording. If this is correct, then the wording must be drastically revised. It would be a particularly insidious form of repression to enact a law which criminalised large numbers of organisations, but was only actually used against a few of them.
30. The singling out of "persons resident in Taiwan" (presumably excluding those who have the right of abode in Hong Kong) and organisations based in Taiwan for special restrictions while Taiwanese citizens are regarded as citizens of the People's Republic of China under Chinese law is discrimination on the basis of ethnic origin and of status. It is unlawful under Article 26 of the ICCPR, and Articles 1 and 22 of the Hong Kong Bill of Rights and Article 39 of the Basic Law. Nor is there any evidence put forward that the various Taiwan linked organisations which have operated in Hong Kong for many years constitute a national security problem which would provide a justification for derogating from normal human rights protection.
31. Any restrictions on the rights of freedom of association must, if they are to comply with the ICCPR, the Bill of Rights and the Basic Law, be both :-
(a) necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others (see Article 22 of the ICCPR quoted at para. 2.2 of the consultative document);
(b) proportionate to the seriousness of the problem which they are designed to tackle. The United Nations Human Rights Committee has ruled that the principle of proportionality requires a precise balancing of the intensity of a measure limiting the right of freedom of association with the specific reason for interference, and that a total prohibition of an association is permissible only for organisations which threaten the state, advocate race hatred or war, or aim to destroy the freedoms of others. This principle has been recognised by the Hong Kong courts as being applicable to Hong Kong (see R v Sin Yau Ming 1992 1 HKLR 127).
32. The justification given in paragraph 4.10 for restoring a registration system for societies instead of the present notification system is that without it it will be more difficult for the Societies Officer to obtain additional information where there are doubts as to whether the society should be allowed to operate in Hong Kong. This justification is not remotely sufficient to provide a legal basis for removal of normal human rights protection. There is no evidence in the document of any necessity at all for imposing restrictions in this area. No organisations or even types of organisations are suggested which are now under non-Hong Kong control or in danger of falling under such control. There is no problem which requires a departure from Hong Kong's existing human rights law.
33. More generally, this part of the consultation document appears to have been mindlessly copied from the United States Treason, Sedition and Subversive Activities Act, which restricts political activities by organisations subject to foreign control (but does not ban them) and from the United States Federal Election Campaigns Act, which makes it unlawful for a foreign national to contribute to an election campaign.
34. However the United States is exceptional in having laws of this kind. There are no equivalent restrictions in the UK. Mr C.H. Tung was acting entirely legally under English and Hong Kong law in making a donation some years ago to the British Conservative Party. Nor are there equivalent restrictions in Canada or Australia. It should be noted that the United States only acceded to the ICCPR in 1993 and the conformity of the 2 American laws described above with the ICCPR has not yet been tested in the American courts. It would be ironic indeed for Hong Kong to copy those American provisions only for one or other of those provisions to be struck down shortly afterwards as being illegal.
35. However the American restrictions do not go anywhere near those proposed in the Consultative Document. The requirement to register under the US law is very narrow. It applies to organisations subject to foreign control which engage in political activity, defined as any activity the purpose of which includes the control by force or overthrow of the Government of the United States or a part of it. Few political organisations would fall into that category. Most US organisations are therefore not required to register even if they are subject to foreign control.
36. If the present proposals proceed at all , which we think would be wrong, their worst effects could be removed if they were revised to limit political organisations to those which campaign for elected office, and if they substituted for a requirement not to accept foreign donations a requirement for political organisations to file annual accounts. This would ensure that information was publicly available about the sources of funding of political parties. If the accounts showed that a political organisation was under the control of an organisation outside the Hong Kong Special Administrative Region, it might then , depending on the circumstances, be justifiable for the Societies Officer to consider exercising his existing powers relating to the security of Hong Kong - if in fact the control was of a kind which endangered that security.
37. Such an alternative should, incidentally, be acceptable to the Central People's Government of China, which permits foreign organisations to give financial assistance relating to legislative functions and elections in China. The Ford Foundation has recently given a grant of US$75,000 to the National People's Congress Legislative Affairs Commission to "develop reform proposals for China's major administrative laws", while the European Union is funding a programme to increase women's participation in local elections. Both these programmes, if they were in Hong Kong, would be stopped by the proposals in the Consultative Document, but would not be affected by the alternative proposal in the preceding paragraph.
COMMENTS ON CHAPTER 5 -- PUBLIC ORDER ORDINANCE
38. As indicated above , the underlying assumption behind the proposed changes to the Public Order Ordinance, namely that there is a problem with public order in Hong Kong now, is wrong.
39. The effect of the proposed introduction of a requirement to obtain a "Notice of No Objection" from the police, which the police need not issue until 48 hours before a demonstration, would have the opposite effect of the stated aim of the authors of the documents which is to promote social stability.
40. Large demonstrations require considerable organisation. If the organisers have only 48 hours from police approval to the occurence of the demonstration there is much more likelihood that the demonstration will be badly organised, and that in turn will increase the risk that it will become disorderly.
41. Demonstrations are a reflection of strongly held feelings on the part of the participants. They are often held in immediate reaction to major events. The police recognise this reality and normally do not object if the demonstration is otherwise unobjectionable. A provision, such as that suggested in paragraph 5.8, that in no case can a demonstration be given without 48 hours notice, will be bound to lead to demonstrations which are by reason of this restriction automatically illegal. If these are then broken up by force Hong Kong's streets will become a scene of violent confrontations in a way which does not occur at present.
COMMENTS ON ANNEXES - PROPOSED AMENDMENTS
42. The definition of " political activities " ( pages A4 and A5) includes :-
"facilitating its members who are members of the Legislative Council, Urban Council, Regional Council or a District Board in executing their functions as members of those bodies (including provisional bodies), other than the activities of a functional constituency organisation."
43. Under Article 73 of the Basic Law the functions of the Legislative Council of the Hong Kong Special Administrative Region shall exercise functions including not merely enacting, amending or repealing laws, but also raising questions on the work of the Government, and debating any issue concerning public interests.
44. It follows that any organisation which helps a member of the Legislative Council who is one of its members to ask a question or prepare a speech will be a political organisation within the proposed definition.
45. The effect of this amendment is made even more far-reaching by the wording of the proposed definition of a functional constituency organisation (page A7) as "an organisation that is an elector in a functional constituency". This means that organisations in old style pre-1995 functional constituencies, where an organisation is an elector, are exempted from the proposed restrictions, but organisations in the present day functional constuencies, whose members vote as individuals, such as the Bar Association, the Law Society, the Hong Kong Institutes of Architects, Surveyors, and Planners, will be within the definition if they involve themselves in any way in assisting their functional constituency member with a speech or a Legco question. Most of these organisations receive membership subscriptions from persons who would be aliens under the proposed definition, and will therefore be liable to be refused registration and suppressed under these proposals.
46. This problem could be overcome by simply deleting the second paragraph from the definition of political activities contained in the annex. If the proposals are not abandoned in their entirety we urge that that deletion be made.
47. The transitional changes proposed to the Public Order Ordinance would have the consequence, perhaps unintended, of prohibiting all demonstrations between 4 and 9 July of which notice has not been given before 27 June i.e. up to 11 days in advance. This means that if some major event after 27 June precipitates a demonstration in that period the demonstration would be illegal, no matter how strong the public feeling giving rise to it. This proposal will have to be revised to provide some arrangement for legal demonstrations during this period with a shorter notification period if the risk of potential serious disorder is to be avoided.
48. This difficulty is another example of the unintended and undesirable effect of altering present legislation. The present legislation permits the Commissioner of Police to accept shorter notice of demonstrations provided at least 48 hours notice is given. Simply continuing this provision would avoid the problem described in the preceding paragraph.
49. The proposed changes are unnecessary and damaging. They are badly drafted, and would open a Pandora's box of unforseen and unintended consequences. If enacted in their present form they will reduce freedom, increase social disorder, and provide no advantages of any kind. Even if they are revised in line with the suggestions included in this document it will still send a message to the world that the first major action of Hong Kong's new Government is to curb civil liberties. This is the opposite of the confidence boosting message that is the Chief Executive's stated aim. The best course, as stated at the start of this response, is to leave alone a system that is obviously working well and has the support of the people.