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Consultation Documents on Civil Liberties and Social Order

The HKSAR Chief Executive's Office  
7th Floor, Asia-pacific Finance Tower  
Citibank Plaza  
3 Garden Road  
Hong Kong  

29 April, 1997  

Dear Sir  

Consultation Document: Civil Liberties and Social Order  

We are writing to submit our comments on the above document.  

Overall, we wish to express our strong opposition to the proposals in the consultation paper. Little justification for the proposals is given in the paper, and the proposals themselves grant sweeping powers to the executive - powers that are greater than those it had under the previous versions of the ordinances in question - and weaken the rights of the individual in an unacceptable way. We very much hope that these ill-thought-out proposals will be withdrawn.  

Our comments are as below, divided into general and specific comments.  

General comments:  

1.   The main thrust of the proposals appears to be to protect the Chinese        
      Government from an imagined threat from Hong Kong. If this is so then we  
      suggest that such imagined threat be clearly articulated and described. It  
      appears to us absurd to imply, as the paper does, that the tiny territory of  
      Hong Kong could in any way threaten the might of the Chinese 
      Government, and in any event, the existing legal mechanisms in Hong Kong 
      already offer ample protection to the sovereign in this respect. If it is believed 
      that the Chinese Government is so fragile that it could be jeopardised by the  
      moderate exercise of free speech in Hong Kong, then we submit that it is for  
      the Chinese Government to put its own house in order rather than impose  
      restrictions on Hong Kong.  

2.   We note that China itself has undertaken to sign the ICCPR. We find it  
      incongruous that precisely at the moment China commits to greater  
      liberalisation there is proposal to roll back human rights in Hong Kong.  

3.   We believe that much of the difficulty the paper finds with the nature and  
      activities of political groups could be resolved if political parties were  
      formally registered, as in some overseas countries. Official recognition of  
      political parties, which we first recommended to the Hong Kong  
      Government in 1992, would formally accept the importance of their role in  
      the Hong Kong system if government. It would also make it easier to  
      develop and implement laws and regulations specifically governing the  
      activities and conduct of political parties.  

Specific comments  

4.   Section 2.6 of the paper states that the Standing Committee of the NPC  
      decided that three sections of the Bill Of Rights Ordinance (BORO) are in  
      contravention of the Basic Law. However, no ground for this important  
      decision is given.  

5.   Section 2.8, which claims that the NPC's repeal of the three sections of the  
      BORO will not lead to any legal vacuum or a need to enact new laws  
      appears inconsistent with the spirit of this consultation paper, which  
      envisages precisely the enactment of new laws to fill a purported legal  
      vacuum.  

6.   Section 3.3. The incidents referred to - temporary blockage of traffic,  
      intrusion into a private premises - were very minor by the standards of  
      demonstrations inmost countries, and to the extent that they did disturb  
      public order they could have been, and in fact were, dealt with under the  
      existing laws. It is entirely unjustified to base the sweeping changes 
      envisaged in the consultation paper on such trivial incidents.  

      Further, we consider it inappropriate and a misinterpretation of the spirit of  
      the ICCPR to use the wording concerning possible "restrictions" as a  
      platform for a policy to curtail human rights.  

7.   Section 3.4. The acknowledge of Hong Kong's remarkable and 
      longstanding social stability, with which we agree, refutes the conclusion to 
      the paragraph that new action is needed to maintain that stability.  

8.   Section 3.6 and 3.7. We would support the assertion that it is time to reflect  
      on how we want Hong Kong society to develop. However, reflection  
      requires time, especially when the matter is so fundamental and the changes  
      proposed so drastic. The extremely brief consultation period suggests that  
      the exercise is not sincere.  

      Further, while we would not dispute that a balance has to be struck 
      between individual and communal rights, we believe that in Hong Kong a 
      good balance already exists. No justification is given for the radical changes 
      the paper proposes.  

9.   3.8(b). We suggest that the draconian changes proposed in the paper,  
      would, if implemented, tend to increase social instability rather than reducing  
      it, since they could be used to deprive many people of their right to peaceful  
      expression of their views, thus leading to frustration, alienation and anger.  

10. Section 4.3. The introduction of the concept "aliens" is disturbing,  
      representing as it does a departure from the open spirit of Hong Kong  
      society.  

11. 4.4. We do not think that Hong Kong is used as a base for political 
      activities against China. If there is a fear that it might be so used, there are 
      safeguard enough under existing legislation.  

12. 4.6. We believe that the proposed definition of political organisations to  
      exclude organisations participating in elections to functional constituencies is  
      unreasonable since these organisations wield considerable political power, in  
      fact comprising half the seats in the legislative Council. Any definition of  
      "political organisations" in the Hong Kong context would require much more  
      thought.  

13. 4.7. We consider these proposals unnecessary, since there is no evidence,  
      and the paper presents none, that political organisations in Hong Kong have  
      caused any mischief that cannot be dealt with under existing legislation. We  
      also consider the proposals impractical, since it will be very hard in many  
      cases for a political group to determine the nationality status of its donors.  
      Some estimates put the number of foreign passport holders in Hong Kong 
      as high as one million persons. Would any of these be counted as "aliens"? 
      And how will foreign political organisations be defined? The timing of the  
      proposals suggest that they are a knee jerk reaction to the recent  
      fund-raising exercise by one well-known political party in Hong Kong, and 
      if this is the case they are completely unjustified.  

      Further, we are aware that the Chinese government and various  
      organisations within China receive funding from foreign political bodies. For  
      example the European Commission has provided funding to the Ministry of  
      Civil Affairs to build electoral awareness in village elections, and the Ford  
      Foundation sponsored the drafting of local government laws. It would be  
      odd if Hong Kong political bodies were more restricted than their  
      counterpart on the mainland.  

14. 4.9 to 11. No ground is given for the draconian proposals introduced in the  
      following sections. There is no evidence that the existing legislation is 
      inadequate to protect public order.  

15. 4.12. The powers given to the Societies Registrar are too sweeping, and, as 
      stated above, the definitions are too loose to be applied in an arbitrary way. 
      This is not consistent with the intention expressed in section 3.8c to send a 
      message that the rule of law will prevail in Hong Kong. In fact the message 
      sent by these proposals is entirely the opposite.  

16. 5.2. We do not believe that the replacement of the licensing system with a 
      requirement for notification has caused "debate" within Hong Kong society, 
      save that it was overdue. The amendment has been accepted and has 
      caused no problems since its enactment.  

17. 5.4. The powers given to the Commissioner of Police are too sweeping, and, 
      as stated as stated above, unnecessary. The Commissioner already has 
      powers enough to deal with any threats to public order. The paper offers no 
      evidence that further powers are needed.  

18. 5.6. The proposed "Notice of No Objection" is simply a permit by another 
      name, and as such is unacceptable. It should not be within the power of the 
      Commissioner of Police to grant permission for a demonstration. The right to 
      demonstrate is a fundamental human right which belongs to the individual. It 
      is not a privilege to be granted at the Commissioner's pleasure.  

      Further, the grounds for the Commissioner's objection are far too broad. 
      The wording of the ICCPR, misused in the context as we state in 6 above, is 
      entirely unsuitable for this purpose. Any policy for the restriction of 
      demonstrations should be defined narrowly, not in brad general terms, since 
      the latter allow the Commissioner to exercise virtually unfettered discretion.  

We hope that the above comments make clear our strong opposition to the proposals in this consultation paper, and the extreme brevity of the consultation period given. We believe that there is no need to amend the respective ordinances as proposed; alternatively, if it is felt that there is a need, this should be the subject of proper public debate over a proper of time.  

We believe that the proposals in the consultation paper would, if implemented, represent a large backward step for human rights in Hong Kong, and will arouse concern among Hong Kong people and internationally. These proposals will lower the confidence of Hong Kong people in the SAR Government, and in the sincerity of the "One Country Two Systems" principle. We strongly urge that they be reconsidered and, if possible, dropped.  

Yours faithfully,  

Dr. Patrick Shiu  
Chairman