Chief Executive-designate C.H.Tung
The Office of the HKSAR Chief Executive
7th Floor
Asia Pacific Finance Tower
Citibank Plaza
3 Garden Road
Hong Kong
By Hand and by Facsimile: (852) 2509-0571
Dear Chief Executive-Designate Tung:
This letter is respectfully submitted in response to your invitation for written comments on the Civil Liberties and Social Order Consultation Document (the Consultation Document) issued by your office on April 9, 1997, which proposes changes to Hong Kong's laws on regulating public demonstrations and registration of private organizations. Human Rights Watch/Asia is a division of Human Rights Watch, a non-governmental organization that monitors and reports on human rights conditions around the globe and maintains an office in Hong Kong. We welcome the opportunity to comment on these issues of critical importance to Hong Kong's future.
Our principal concern is that the amendments proposed introduce restrictions on the rights of free assembly and association inconsistent with the International Covenant on Civil and Political Rights (ICCPR). The working assumption of the Consultation Document appears to be that Hong Kong will become a much more volatile and dangerous place after June 30, 1997 and will thus need more stringent regulation of demonstrations and societies. This seems, however, an unnecessarily gloomy view that is unsupported by facts. The present ordinances, some recently revised to conform to this international standard, have so far proven entirely adequate to secure public order and prevent genuine threats to China's national security, and no reasons have been offered as to why they would suddenly be inadequate after the transition. Moreover, the language of the proposed amendments is so vague in parts that it would sow confusion as to when the law was violated, and thus inhibit people in Hong Kong from exercising these basic rights. In some aspects, there is a danger is that the proposed amendments would produce worse consequences for human rights than merely reinstating the original colonial-era laws. These concerns, and other points, are elaborated below.
The challenge of ensuring fundamental civil and political freedoms in Hong Kong while addressing public order and national security interests is a difficult one and entails a careful analysis of the interlocking requirements of Hong Kong's laws, both domestic and international. This first legislative reform proposed by your administration will have profound implications for the type of society Hong Kong becomes as a Special Administrative Region of China, and it therefore deserves careful, not rushed consideration. We therefore recommend that you urge the government of the People's Republic of China to leave in place the current laws until such time as a decision, fully researched and fully consultative, can be made as to whether they require amendment, and if so, how to amend them so as to fully uphold international human rights in Hong Kong. Legislation of such importance should be debated and voted on not by a provisional legislature, but by an elected legislature of the SAR, to uphold the people of Hong Kong's right under ICCPR Article 25 to take part in the conduct of public affairs directly or through freely chosen representatives.
General Principles of Protection Under the International Covenant on Civil and Political Rights
- The Consultation Document states that all future legislation in Hong Kong must be consistent with the International Covenant on Civil and Political Rights (para. 2.7), an important recognition of Hong Kong and China's legal obligations under the Basic Law and the Joint Declaration, respectively. The Covenant, in turn, tolerates restrictions on the freedoms of assembly and association only where three conditions are met: i) that the restriction is "necessary in a democratic society"; ii) that it is in conformity with or prescribed by law and iii) that it is imposed in the interests of one of the following -- "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 Consultation Document justifies new restrictions by reference to the need to redraw the "balance" between individual liberties, on the one hand, and security and order concerns, on the other (3.7, 5.4). Yet international human rights law requires not that rights be weighed against state interests but that rights be subject only to restriction in carefully defined circumstances. As the European Court of Human Rights commented, assessing the legitimacy of a restriction is not "a choice between two conflicting principles but with a [rights] principle...that is subject to a number of exceptions which must be narrowly interpreted." (1)
- The Consultation Document recognizes that "Hong Kong has enjoyed remarkable social stability" (3.4), that "people of Hong Kong have exercised their rights and freedoms in a sensible and responsible manner" and that they are "remarkably accommodating of different viewpoints" and "tolerant of occasional aberrations from what is widely regarded as acceptable social behavior" (3.2). The question immediately arises whether restriction of the right to demonstrate or to form societies is "necessary" in the democratic society of Hong Kong.
The requirement that restrictions be "necessary" imposes an affirmative obligation on the imposing government to show that they indeed are; a simple assertion that there may be some unspecified risk to national security or public order would not meet the threshold contemplated by the Covenant. To be "necessary," a restriction must be narrowly tailored and proportional to the danger to a protected interest. A typical way of phrasing this principle in U.S. jurisprudence is that the limitation on rights be the least restrictive means of protecting a valid interest. In additional to being proportional, to be necessary "in a democratic society" requires the restriction to be compatible with values of pluralism, tolerance, broad-mindedness and popular sovereignty.
We are concerned, therefore, that the Consultation Document does not justify the restrictions it proposes, apart from asserting that "it is easy to forget that being a small and open economy, Hong Kong is extremely vulnerable to external forces," and the government must "ensure that there are sufficient safeguards in our system to maintain law and order at all times, and to react to unforeseen circumstances swiftly and effectively" (3.4). The statement that the "protection of human rights must not be compromised" is a strong positive commitment; it is incompatible, however, to justify new restrictions on rights by merely asserting "nor should social stability be put to unnecessary risk" without any showing that there are new risks that require new measures (3.8b).
4. It is not sufficient for a restriction on rights to be written into an ordinance for it to be "in conformity with law" or "prescribed by law" under the Covenant. A restriction must be framed with enough specificity to give notice of what is lawful and what is unlawful action and(2) otherwise comport with applicable human rights guarantees. The proposed amendments, as many have pointed out, rest on vague and undefined terms that would cast a pall over the exercise of basic rights. Likewise, merely reproducing in the statutory language the Covenant's list of valid state interests does not alone make such restrictions "lawful." The language of the Covenant is purposefully general, in recognition that domestic restrictions on rights must be precisely tailored in order to apply only where "necessary" in a "democratic" society. Nor can restrictions on assembly and association be deemed "lawful" without consideration of their impact on other rights, such as free expression or the right to organize labor unions.
5. A statement of April 21 intended to clarify terms in the Consultation Document (the Clarification) explains that the purpose of some restrictions is "to prevent foreign political forces from making use of Hong Kong to conduct political activities targeted at China and to prevent political organisations in Hong Kong from being controlled by foreign powers" . (3)These purposes are embraced by the protection of "national security," a term used throughout the proposed amendments, whose interpretation "must be consistent with the UN definition" (3Ab). However, the Clarification states that the term "covers any activity prejudicial to the very existence of the State," and claims the Universal Declaration of Human Rights relates the term to "measures enacted with a view to safeguarding territorial integrity and national independence from any external threat." This explanation, taken out of context from the report of a U.N. Special Rapporteur, does not support a broad reading of the national security exception. To begin with, the Universal Declaration does not mention the term "national security," and indeed, in no way qualifies the rights to freedom of peaceful assembly and association contained in Article 20. "National security," as used in the ICCPR, denotes serious cases of political or military threat to the entire nation, not merely any act "prejudicial" or "threatening;" the serious threat must be to the nation as a whole, not merely to a locality or to a particular party or government.The plain meaning of the terms must be accorded substantial weight since the travaux préparatoires fail to elaborate on the content of national security. "National" indicates that the anticipated danger must relate to the country as a whole. (....) A state may be said to be secure only when all of its constituent elements, its territory, its inhabitants, and its government, are secure. Security in regard to the inhabitants consists of the inviolability of their human rights. In a state where security to inhabitants is completely lacking, state security cannot be said to exist. Such a government cannot justify limitations on rights to protect national security when, in fact, there is no security to protect, but only the government's interest in self-preservation.
6. Likewise, criticism or protests against the government, or peaceful but controversial expression on subjects relevant to national security do not of themselves constitute threats to "public order." For example, the Supreme Court of Sri Lanka ruled the police violated a protester's fundamental rights when they beat him in the course of a protest against the government, writing "Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day." (5)In U.S. law, restrictions on expression are justifiable only when the expression intended to incite imminent lawless action and likely to do so. (6)
Freedom of Assembly and the Public Order Ordinance
7. The basic change proposed in the Consultation Document to the Public Order Ordinance is replacing the present notification system with one where the Commissioner of Police would in effect license public meetings and processions (5.5-5.8 and annex). In particular, the Commissioner would have to be notified seven days before a public procession, or not less than forty-eight hours in exceptional circumstances, and then must communicate to the organizers either a "Notice of No Objection" or a "Notice of Objection" stating reasons or conditions no later than forty-eight hours before the scheduled march. Appeals from these decisions are to go to an administrative board chaired by a retired judge that would presumably be appointed by the Chief Executive or his delegate.
8. The issue of whether a system of prior licensing of assemblies ever comports with the ICCPR is subject to debate; however, even in jurisdictions that require licensing, such as the United States, discretion to withhold or condition licenses is strictly limited and subject to immediate judicial appeal. In the U.S., for example, restrictions must be limited to the time, place or manner of a demonstration, with regard to public order considerations. The police may schedule demonstrations to avoid traffic jams or rush hour, or cordon off particular areas for fire safety reasons. They may not, however, deny licenses on the basis of the ideology or message of the demonstrators, however objectionable or likely to cause a hostile response from an audience.(7)
9. In contrast, the Police Commissioner would be empowered under the proposed amendments to deny permission to demonstrate if "he reasonably considers the holding of the procession is not 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 freedom of others." These conditions, though cribbed from the language of the ICCPR, present problems.
10. To begin with, the ICCPR requires that a restriction be "necessary in a democratic society" and not merely in the interests of national security and so on. As discussed earlier, this requires a careful consideration of proportionality, and a guarantee that any restriction places the least possible burden on exercise of the right.
11. Moreover, permitting the Police Commissioner to quash assemblies of more than thirty persons in the name of "national security" invites abuse. Would the peaceful demonstrations to commemorate the June 4, 1989 killings in Beijing be banned or restricted on the basis of national security? This would be a clear violation of international human rights law as such protests in no way threaten the existence or territorial integrity of the Peoples Republic of China, but an administrative officer who serves at the pleasure of the Chief Executive is more likely to err on the side of state interests, particularly when high-level mainland officials have expressed their displeasure at such commemorations. Although the Clarification of April 21 states that judicial review would be available for appeals of decisions made on the basis of national security under either the Societies or Public Order ordinances (3.A), the fact is that courts traditionally defer to the executive on this precise question. Review is likely to be limited to whether a decision indeed was "based on ?national security'considerations" (Clarification, 3.A) and not whether national security interests warranted the particular restriction imposed with respect to international human rights law. National security issues may also fall within the purview of matters that ultimately may be taken out of the hands of Hong Kong courts and decided by the National Peoples Congress in Beijing, under the doctrine of acts of state.(8)
12. The licensing requirement is likely to create conflicts between the public and the authorities where none existed before, particularly with respect to the seven day or forty-eight hour advance notice provision. A notification system poses less burden on the organizers of assemblies, in that they may presume their demonstrations are legal until the government informs them otherwise; a licensing system will require organizers to wait in uncertainty as to whether their assemblies may proceed until shortly before the scheduled time. This will inhibit preparations that can avert disorder, such as the training of parade supervisors and preparation of safety measures. The forty-eight hour requirement disregards the fact that there is a right to demonstrate spontaneously, in reaction to current events. Inevitably, there will be such protests, which currently are handled without great difficulty by the police in Hong Kong. However, if all such spontaneous demonstrations are considered illegal and subject to suppression, the potential for clashes between police and demonstrators, and litigation against the government, will escalate.
13. Finally, no adequate rationale is offered for switching to a more restrictive and easily abused system for regulating demonstrations. The Consultative Document acknowledges that Hong Kong has had remarkably few public order problems, and cites only instances of blocking traffic, trespassing on consular property or disrupting commercial premises (3.3). As many others have pointed out, Hong Kong has ample remedies in criminal and tort law to these abuses, and nothing in the law at present would prevent a constable from arresting those who disrupt public order. The truth is that Hong Kong is an orderly and stable society right now and is likely to remain such after June 30, 1997. It has experienced thousands of peaceful demonstrations in recent years with no severe repercussions for either public order or the national security of China or the United Kingdom. The present laws appear to be functioning smoothly, as evidenced by the complete lack of appeals to the board empowered to review decisions to ban or condition demonstrations under the present law.
Freedom of Association and the Societies Ordinance
14. As set forth in an annex to the Consultation Document, the proposed amendments to the Societies Ordinance would replace the present notification system with a registration system for virtually all non-commercial organizations in Hong Kong, with the exception of a narrow range of charitable groups. The Societies Officer (the Commissioner of Police) would be able to refuse to register a society, or recommend the closure of a registered 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 freedom of others," a condition that repeats language of the ICCPR, without, however, its requirement that any limitation be "necessary in a democratic society," as discussed above.
15. In addition, the officer may also in certain circumstances refuse to register, or recommend the closure of, a society which engages in "political activities," meaning "promoting or preparing" a candidate for election or "facilitating" members who serve on the elected or provisional Legislative Council, Urban Council, Regional Council or District Boards in executing their official functions. The circumstances where such "political activities" would trigger removal from the list of the Societies Registrar include soliciting or accepting contributions, loans or other forms of financial support "directly or indirectly, from an alien or from a foreign organization" or merely having "a connection with a foreign political organization." An "alien" is defined as anyone who is not a citizen of the People's Republic of China (this would cover a significant portion of Hong Kong's inhabitants who have only permanent resident status; it is also a restriction that has no conceivable counterpart in the former pre-1992 version of the law). A "connection" would include situations where the society solicits or accepts money, is affiliated directly or indirectly with the foreign political organization, where the society's policies "are determined by or at the suggestion of, or in collaboration with" the foreign organization, or where the foreign group "directs, dictates, controls, influences or participates directly or indirectly in the management or the decision making process" of the society. A "foreign political organization" is a foreign government or its political subdivision; an "instrumentality" of such a government or subdivision, or "an international political organization." The amendments provide that the above situations could be considered as not in the interests of national security or public safety, public order or the protection of public morals "in the absence of evidence to the contrary." This language appears designed to insulate the provision from being challenged on the grounds that it contravenes the ICCPR. However, it wrongly places the burden on individuals to produce evidence that a valid national interest is not under threat rather than on the government to demonstrate that any such threat actually exists. It omits the requirement that restrictions be necessary and proportional, and indeed, fails to demonstrate that any of the listed activities actually constitute a threat to the existence of the state, or maintenance of public order.
16. The proposed amendments are fraught with vague or overbroad terms that would significantly impair freedom of association in Hong Kong. Terms such as "promoting" "preparing" or "facilitating" the work of political candidates cover a multitude of innocuous activities, as do "suggestion" or "collaboration" in determining a society's policies. What constitutes influencing or participating indirectly in a group's decision-making process? Virtually any communication between a foreign group and a Hong Kong society may influence the latter's decisions; taken literally, this provision would cut off many local groups from foreign contacts altogether. What is an "instrumentality" of a foreign government? It could be a charitable foundation that receives government support or a former ambassador. An "international political organization" could be the United Nations or the Working Group on Arbitrary Detention, a human rights organization or an international environmental coalition. The Clarification states that "we envisage ?political organisations' to include political parties only" (3.B), but does not explain whether this is true for those political organizations that are "international."
17. While the stated objective of these amendments is "preventing societies in Hong Kong from being controlled by foreign political forces" (4.3), in fact the language goes far beyond to inhibit association in a multitude of circumstances protected by international human rights law. For example, as presently drafted, it is conceivable that a labor organization that endorses a political candidate could be banned if it relays to the candidate the positions of its international labor federation. A political party could be banned for incorporating into its platform the findings of a foreign government's environmental agency, or for inviting members of the International Parliamentary Union to monitor an election campaign, or for hosting visits by foreign political officials. Foreign foundations that support research and training programs designed to assist legislators in China could not fund similar activities in Hong Kong. Experts affiliated directly, or even indirectly with an "instrumentality" of a foreign government or an "international political organization" could not serve as board members or advisors to local societies; it might be risky for them even to send e-mail or make telephone calls if such would be likely to influence the local group. Universities that receive foreign grants might not be able to invite legislators to a symposium, or transmit research on social policies to them. Political parties in Hong Kong would be prohibited from accepting donations even from permanent residents who are entitled to vote in elections, and student demonstrators who endorse particular political candidates had better not let tourists drop contributions into a hat. Such examples cannot be dismissed as ridiculous, however far-fetched they appear, because of the imprecision in the drafting of these proposals.
18. No compelling reason has been given to justify any of these new restrictions, or indeed, the need to register societies at all. Registration requirements in countries such as the United States hinge not on the foreign contacts of an organization or its political activities, but on the nature of the benefits the organization wishes to enjoy. For example, in order to obtain a certain tax status, a group must register as a corporation, or to gain tax deductions for its donors, as a not-for-profit organization. It is unconstitutional under U.S. law to require an organization to list its members as part of a registration requirement, or to impose registration requirements on account of political views.(10)
18. Indeed, the government already has the power to prohibit the operation of a society where "the operation or continued operation...may be prejudicial to the security of Hong Kong or to public safety or public order." The statement in the Consultative Document that the lack of a registration system makes it more difficult for the government to "obtain additional information" where there are doubts whether a society should be allowed to operate cannot justify new restrictions, as such information most likely is already available through the notification system, or at any rate, could be obtained through a means that is far less burdensome to the right of association. The likelihood that registration will deter the formation of criminal societies is virtually nil; such groups are more likely to operate without submitting themselves to government scrutiny in the first place.
We appreciate the opportunity to take part in this consultation and hope very much that the plans to proceed with the proposed amendments will be halted.
Sincerely,
Sidney Jones
Executive Director
(1) The Sunday Times v. United Kingdom, para. 65 (discussing the substantially similar three-part test of the European Convention on Human Rights in the context of free expression, which is subject to the same three-part test as assembly and association). See also the decision of the Supreme Court of India in Rangarajan v. Jagjivan Ram and Ors; Union of India and Others v. Jagjivan Ram, decided on March 30, 1989, SC [1990] LRC(Const) 412, 427; 1989 SC(2)R 204 (again in the context of free expression, "There does indeed have to be a compromise...But we cannot simply balance the two interests as if they are of equal weight....The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus [with the exercise of the right]."
(2) The European Court of Human Rights has interpreted the term "prescribed by law" to mean a restriction that is "adequately accessible" and "formulated with sufficient precision to enable the citizen to regulate his conduct." The Sunday Times v. United Kingdom, para. 49.
(3) Manfred Nowak, UN Covenant on Civil and Political Rights: CPPR Commentary (NP Engel, 1993) p. 380.
(4) See paragraphs 29-32 discussing the interpretation of national security in The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, an authoritative though non-binding statement of experts on the present state of international law. See also Lockwood, Finn and Jubinsky, "Working Paper for the Committee of Experts on Limitation Provisions," 7 Human Rights Quarterly 35 at 70, 72 (1985):
(5) Amaratunga v. Sirimal & Ors, S.C. App. No 468/92, decided March 6, 1993 pp. 5-6..
(6) Brandenburg v. Ohio, 395 U.S. 444 (1969).
(7) See, e.g. Cox v. New Hampshire, 312 U.S. 569 (1941) and Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992).
(8) See Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.
(9) Indeed, it is ironic that part of the proposal dealing with political activities by groups subject to foreign control appears to be copied from a U.S. law designed to combat the influence of the international communist movement.
(10) See, e.g., Lamont v. Postmaster General, 381 U.S. 301 (1965) and Thomas v. Collins 323 U.S. 516 (1945).
