Consultation Documents on Civil Liberties and Social Order
The HKSAR Chief Executive's Office
29 April, 1997
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 We very much hope that these ill-thought-out proposals will be withdrawn.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.
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.
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.
Dr. Patrick Shiu
Reproduction of this paper is permitted with proper attribution to the Hong Kong Democratic Foundation