The Public Order Ordinance
The followings are the comments by the Law Society of Hong Kong:
1.
The International Covenant on Civil and Political Rights ("ICCPR")
The
right of peaceful assembly is recognised by Article 21 of the
ICCPR and is part of the laws of HKSAR by virtue of Article
39 of the Basic Law (“BL”) and Article 17 of the Hong Kong Bill
of Rights Ordinance (“BORO”).
Article 21 of
ICCPR
reads:-
“The right of peaceful assembly
shall be recognised. No restrictions may be placed on the exercise
of this right other than those imposed in conformity with the
law and which are necessary in 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.”
2.
The text of Article
21 of ICCPR makes it clear that:-
(a)
only peaceful assemblies
are protected; and
(b)
the right to peaceful
assembly is not an absolute right and restrictions are permissible
but:-
(i)
they must be imposed in conformity with law; and
(ii)
are necessary in a democratic society for protection of one or more
of the listed interests, namely, national security, public safety,
public order (ordre public), the protection of public health
or morals, and the protection of the rights and freedoms of
others.
The
latter limit imports the democratic principles of proportionality
and minimum standard of demonstrating a pressing social need
for any restrictions to a guaranteed right or freedom.
In The Law Society’s Response to the Consultation
Document on “Civil Liberties and Social Order” published on
30 April 1997 (“the Law Society’s Response”) it was pointed
out under Article 17 of BORO, the words “necessary
in a democratic society” qualified the restrictions.
Principles of proportionality and minimum standard are part
of the laws of HKSAR.
The Administration acknowledged that administrative guidelines
would be issued to the Commissioner of Police on the application
of the “national security” consideration which must be consistent with what
is “necessary in a democratic society”.
3.
Advance Notification:
The
Public Order Ordinance (“POO”) imposes advance-notification
requirements for public processions and public meetings.
Notice of an intention to hold a public procession (other
than for the purposes of a funeral) or a public meeting must
be given to the Commissioner of Police 7 days in advance as
required by s.13A(1)(b) and s.8(1) of POO.
The Commissioner has the discretion to accept shorter notice
but he must accept shorter notice where he is reasonably satisfied
that earlier notice could not have been given.
A typical example is the case of a spontaneous protest
by dismissed employees where a business has suddenly closed
down and earlier notice could not have been practicably given.
There is no statutory minimum notice in the law.
4.
Part III of POO empowers
the police to prohibit the holding of a public meeting and to
object to a public procession to be held if the Commissioner
reasonably considers that the prohibition or objection 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. But
the Commissioner of Police is required by law not to exercise
the power of prohibition or objection when he reasonably considers
that the interests of national security or public safety, public
order (ordre public) or the protection of the rights and freedom
of others could be met by the imposition of conditions for a
public meeting or a public procession (s.9(4) and s.14(5) of
POO).
5.
The Commissioner can
only exercise the power to prohibit a public meeting or to object
to the holding of a public procession within the time limits
stipulated in s.9(3) and s.14(3) of POO. If the Commissioner does not object to
a public procession being held, he must within the time limits
stipulated for objection give his notice of no-objection. If neither a notice of objection nor a notice of no-objection
is given by the Commissioner within the stipulated time limits,
he is deemed to have issued a notice of no-objection
for the public procession (s.14 (4) of POO). In the Law Society’s Response, it was
pointed out the requirement for a notice of no-objection from
the Commissioner would in effect be a requirement for a notice
of approval to hold a public procession.
Deeming approach
The Government has indicated that:
"In
the event that a "Notice of No Objection" has not
been issued for whatever reasons, it will have been deemed to
have been issued:
a)
where the organizer who has given not less than seven days'
notice, did not receive any objection 48 hours before the procession;
or
b)
where an organizer who has given less than three days notice
, did not receive any objection 24 hours before the procession."
The
Law Society notes the Government did address the Law Society's
observations on notification and introduced the "deeming"
provisions. However, the amendments as drafted continue to give
cause for concern as the procedure of notification in practice
causes uncertainty. For
example, if a notice of objection is issued by the Commissioner
but not received the applicant will erroneously believe that
he can take advantage of the deeming provision whereas he will
unknowingly be breaking the law. The possibility that an applicant does
not know that he is in breach causes uncertainty. It is also difficult for solicitors to advise their clients
properly.
6. Grounds for restrictions
The Law Society accepts
that the statutory definition of “national
security” in POO states the constitutional reality of Hong
Kong as a Special Administrative Region of the People’s Republic
of China.
Of the permissible grounds
of restriction, the expressions “public
safety”, “public order (ordre public)”, and “the protection
of rights and freedoms of others” are interpreted in the
same way as under ICCPR as applied to Hong Kong.
“National
Security” means the safeguarding of the territorial integrity
and the independence of the People’s Republic of China (S.2(2)
of POO). In the Law Society’s Response, it was
pointed out that the term “national
security” was too wide when applied in the imprecise context
of domestic legislation.
7.
The Law Society is
of the view that as a matter of law the advance notification
requirements for public processions and public meetings in POO
are compatible with Article 21 of ICCPR as applied to HKSAR.
Firstly
, in the major decision on Article 21 of ICCPR by the Human Rights
Committee in Kivenmaa v Finland (412/90), it was noted
that “any restriction upon the right to assemble
must fall with the limitation provisions of Article 21”.
“A requirement to pre-notify a demonstration
would normally be for reasons of national security, public order,
the protection of public health or morals or the protection
of the rights and freedoms of others.”
Secondly
, Article 17 of BORO requires that the exercise of the power by the
Commissioner to restrict the right to public procession or public
meeting must not only be reasonable but 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.”
Thirdly:
The right to appeal against the decision of the Commissioner to the
Appeal Board satisfies the requirements of Article 14 of ICCPR
as applied to Hong Kong. This provides that in determining a
person’s rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. This requirement is met by s.16 POO. There
is a right of appeal by a person, society, or organization aggrieved
by a decision of the Commissioner to an appeal board known as
the “Appeal Board on Public Meetings or Processions” chaired
by a retired judge. This Appeal Board is under the statutory
obligation to consider and determine the appeal with the greatest
expedition possible and without delay (s.44 A(6) of POO).
8.
Apart from the issue
of compatibility with ICCPR, the recent incidents of “civic
disobedience” and public debates on the provisions of POO
governing public processions and public meetings have raised
issues of social and political concern to Hong Kong and its
image in the international community. These issues include:-
(a)
The justification or
the appropriate length of the advance-notification requirements
- Since 1997, it has been announced that out of some 6,000 demonstrations,
over 400 demonstrations were held without notification
to the police. there is the perception that there is an
unequal application of the law which does give rise to concern
on the "Rule of Law".
(b)
The appropriateness
of the grounds of restrictions to the right of peaceful assembly
in the context of HKSAR;
(c)
The proportionality of
the criminal penalties in certain offences under POO gives cause
for concern, as for example, not only the organizer of the event
but also participants would be subject to heavy criminal sanctions.
Is the requirement in s.17A (1)(d), namely that the media shall not
propagate or announce a public assembly where the organizer
had failed to give notification to the Commissioner contrary
to common sense? The organizer is not in a position to provide
an accurately estimate of the participants without announcements
via the media?
(See the appendix containing a schedule of the offences under Part
III of the POO)
nk between the ground of "national security" and Article
23 of the Basic Law.
The Constitutional Affairs committee notes that reference to
"National Security" in the POO has not
been discussed in the context of the
provisions of BL 23 which states:
"The HKSAR shall
enact laws on its own to prohibit any act of treason, secession,
sedition, subversion, against the Central People's Government,
or theft of state secrets, 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."
There is a link between the provisions of the POO and
BL 23 which requires
debate.
(d)
Whether the Commissioner of Police is the appropriate body to administer the POO
subject to the direction of the Chief
Executive. It is noted that in many jurisdictions the responsibility
for authorizing public demonstrations or meetings lies with
the local council or with the judiciary and it is queried whether
the police is the appropriate organ to deal with this given
the potential for conflict with the demonstrators. But it must
be accepted that the police have the resources to administer
public order and the flow of traffic when a demonstration takes
place.
In addition, it is noted that s.51 POO was amended in
1999 granting the Chief Executive the authority to give "such
directions as he thinks fit with respect to the exercise or
performance by the Commissioner of Police....of the functions
or duties conferred or imposed on him ......"
Why is it necessary for the Chief Executive to have this
authority when the Commissioner for Police would have the necessary
information to enable him to exercise the discretion under the
POO?
9.
The Law Society considers
that given the concern expressed by a cross section of the community
and that the areas of concern are not merely regulatory as outlined
in paragraphs 5 and 8 above, these issues should be examined
fully, preferably by the Law Reform Commission. This proposal
enables the community to be consulted and a full debate of the
areas of concern to take place.
The Law Society of Hong Kong
November 2000
(44129)
