Press Release

 

 

LC: Speech by Secretary for Justice in Motion Debate on Public Order Ordinance

***********************************************************************

Following is the speech by the Secretary for Justice, Ms Elsie Leung in the Motion Debate on the Public Order Ordinance in the Legislative Council today (December 20):

Madam President,

The public debate over the Public Order Ordinance, which began several months ago, largely involves policy considerations. As Secretary for Justice, I see my responsibilities in this debate as being limited to three main areas. These are, firstly, to clarify what are, and are not, the current requirements of the law; secondly, to consider whether those requirements are consistent with the Basic Law and the International Covenant on Civil and Political Rights; and, thirdly, to consider the merits of legal arguments in favour of reform.

I. Clarifying the law

I have tried to clarify the legal position by means of various public statements and by giving advice to Security Bureau, which was then relaid to the public. The Administration has also submitted a paper to the Legislative Council Panel on Security in response to the submissions made to the Legislative Council by various individuals and bodies including the Bar Association. I hope that this has been helpful in dispelling some misconceptions that had arisen.

The main misconception was that police permission is required for public processions. I hope Members now all appreciate that this is not the case. The Ordinance simply imposes a notification requirement in respect of most public processions of over 30 persons.

After the Commissioner of Police receives a notice of intention to hold a public procession, he must issue a notice of no objection unless he objects to the procession. If he does not issue either a notice of no objection or a notice of objection within the specified time limit, he is taken to have issued a notice of no objection.

In other words, if the police do not issue a notice of objection, the procession can go ahead. This is clearly not a requirement of police permission.

However, there are still some who argue that the provisions in the Public Order Ordinance reduce, or may be perceived to reduce, the freedom of peaceful assembly to something like a privilege or licence, to be enjoyed at the discretion of the administration. For reasons that I will shortly give, I do not accept that the freedom of peaceful assembly has been so reduced. And if there is a perception problem, this can be overcome simply by helping members of the community to understand the true position.

II Basic Law and ICCPR

My second responsibility has been to consider whether the current law is consistent with the Basic Law and the International Covenant on Civil and Political Rights. In my opinion, it is.

Article 27 of the Basic Law provides that Hong Kong residents shall have various freedoms and rights, including freedom of association, of assembly, of procession and of demonstration. However, those freedoms are not absolute.

Article 39 of the Basic Law provides that the International Covenant on Civil and Political Rights shall remain in force and shall be implemented through the laws of the Hong Kong SAR. Article 21 of the ICCPR reads as follows:

'The right of peaceful assembly shall be recognized. 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 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."

For a restriction on the right of peaceful assembly to be permissible under this article the following criteria must be satisfied.

1. First, the purpose of the restriction must fall with one of the permitted grounds of restrictions.

2. Secondly, the type of restriction must be rationally linked to the purpose of the restriction.

3. Thirdly, the restriction must be the minimum that is necessary to chieve the purpose.

The current restrictions must therefore be judged in accordance with those principles. Some lawyers have objected to the terms of the current motion, saying that it is wrong to speak of "balancing" conflicting interests. They emphasize that primary importance should be given to individual rights, and that restrictions on those rights should be construed and applied narrowly. The Administration accepts that this is the correct approach, but believes that this approach can be fully recognised when deciding whether the current law reflects a proper balance between individual rights and the broader interests of the community at large.

Some people have drawn attention to other countries where the law relating to assemblies, demonstrations and processions is more relaxed than in Hong Kong. In some countries, the required notice period is shorter than here. In some countries the penalty for non-compliance is more lenient. However, that does not necessarily mean that our provisions are not appropriate for Hong Kong. What is appropriate for any particular territory must depend partly on the local environment. For example, different standards may apply in a sparsely populated area and in a densely populated one.

Such an approach is adopted when national laws are judged against international human rights principles. The doctrine known as 'the margin of appreciation' applies. This doctrine requires international tribunals, when exercising the supervisory jurisdiction over State conduct, to accept initial national assessments of local needs of morality, public order and so on and national evaluation of local conditions. By conceding a margin of appreciation to each jurisdiction, the court has recognised that the human rights Convention, as a living system, does not need to be applied uniformly by all States but may vary in its application to local needs and conditions. Let me quote from the Handyside case (1976) 1 EHRR 737 (which concerned the ban of a book in Britain which was permitted and freely available in other European countries) -

"By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in a better position than the international judge to give an opinion on the exact requirement as well as the 'necessity' of a 'restriction' or 'penalty' intended to meet them."

Therefore, whilst the International Covenant sets out the rights of assembly and demonstration and the principles on which restrictions can be imposed, the regulation of such rights and the penalty for non-compliance with the law should be left to the local authorities.

Of course, the individual states' working out particulars of legal requirements in the light of local conditions does not mean we should depart from the generally adopted international human rights standards. The Human Rights Committee under the United Nations regularly judges, against these standards, Hong Kong's efforts in giving effect to the human rights conventions. In its concluding observations published last year, the Committee stated its awareness of the fact that there were very frequent public demonstrations in Hong Kong. It did not question the past practices of the Hong Kong Police Force in enforcing the Public Order Ordinance. The Committee's observation is not as negative as some have suggested. The Committee urged HKSAR to review the Public Order Ordinance, however, it did not state the reasons for the appeal, nor had it pointed out which provisions were inconsistent with the human rights convention.

The Administration has made relentless efforts in convincing the public and the Human Rights Committee that the provisions of the Public Order Ordinance are consistent with the human rights standards adopted internationally. Bearing these principles in mind, I would now like to consider the following aspects of the current law, namely the requirement for notification; the grounds on which public assemblies can be restricted or prohibited; the sanctions for failure to give notice; the penalties for such failure; and the decision-making system.

Notification

The requirement to notify the police of certain public meetings and processions has two principal purposes: to enable the police to take steps to minimise traffic, public safety, and public order problems that might arise; and to enable the police to decide whether there is a need to impose conditions in respect of the assembly or to prohibit it.

The only grounds on which conditions can be imposed, or an assembly prohibited, is if the Commissioner of Police "reasonably considers" this to be necessary in the interests of national security, public safety, public order or the protection of the rights and freedoms of others. The word "reasonably" imposes an objective standard, not a subjective discretion.

These grounds of objection reflect the permissible restrictions on the right of peaceful assembly set out in Article 21 of the ICCPR. Moreover, the Ordinance expressly provides that the key expressions "public safety", "public order" and "the protection of rights and freedoms of others" are to be interpreted in the same way as under the ICCPR as applied to Hong Kong. In deciding whether to object to a public procession, the Commissioner must therefore conform to international human rights standards, by which his decision will be judged if challenged.

In addition, the Ordinance prohibits the Commissioner from exercising his power of objection where he "reasonably considers" that the interests of public safety etc could be met by imposing conditions. That is to say, if imposing conditions would be good enough, he cannot object to the public assembly being held.

The purpose of the notification requirement is clearly within the permitted grounds of restriction specified in Article 21 of the ICCPR; the requirement of notification is rationally linked to the purpose of the restriction; and notification is the minimum needed to achieve the purpose. In short, the requirement of notification is, in my view, consistent with the ICCPR. In fact, the UN Human Rights Committee has already ruled that a requirement of prior notification of public meetings is a legitimate form of restriction. That ruling was made in the case of Auli Kivenmaa v Finland, Communication No. 412/1990.

7 days' notice

Some commentators have said that the requirement to give 7 days' notice of a public meeting or public procession is unnecessarily restrictive. Other periods, ranging from 12 hours to 4 days, have been suggested. However, what must not be overlooked is that, under the current law, the Commissioner of Police can, and invariably does, accept less than 7 days' notice. In fact, if he 'is reasonably satisfied that earlier notice could not have been given' he must accept shorter notice. And, if the Commissioner decides not to accept shorter notice, he is required by law to state his reasons in writing to the person who gave notice, as soon as reasonably practicable.

From an operational policing point of view, the requirement to give 7 days notice allows necessary liaison to be made with organisers, should routes or locations be impractical or clash with other known events. Day to day manning arrangements in police districts can handle public meetings of not more than 50 persons or public processions of not more than 30 persons. In order to manage larger events, additional manpower is often required. Without the ability to make arrangements in advance, police personnel may need to be redeployed from normal duties, and this could impact on beat coverage and police ability to respond to emergency calls.

In addition, if the organizers of an assembly are dissatisfied with restrictions imposed, or a prohibition of the assembly, they are entitled to appeal to an independent board. For the appeal mechanism to function effectively, there should be sufficient time to arrange an appeal board hearing before the date of the planned public meeting or procession.

In the light of these considerations, the criticism of the current notice period loses much of its sting. In practice, the existing requirement does not appear to impose a heavy burden on organisers of public assemblies. In my view, it is consistent with the ICCPR.

Penalising participants

The requirement to give notice must be supported by some form of sanction if it is to have any meaning. Making it a criminal offence to organise a public assembly without giving notice to the police seems generally acceptable. For example, the Bar Association accepts that, in the interest of maintaining the integrity of a notification system, such an offence is justifiable.

However, some commentators consider it wrong to penalise those who merely participate in an unnotified public assembly. The Bar Association has commented that 'it is unconstitutional to criminalize a peaceful assembly or procession simply on the ground of failure to give notice.' Its authority for this statement is a 1936 case in the United States which concerned someone who was prosecuted simply for assisting in the conduct of a meeting which was called under the support of the Communist Party. It is difficult to see what relevance that case has to the current debate involving a notification system, which concerns entirely different issues, and which is not to be decided under the American Constitution.

In fact, the Bar Association does not assert that the local offence relating to participation in an unnotified public assembly is unconstitutional. It says that the constitutionality of that offence is 'seriously in doubt'. With great respect to the Bar Association, I do not accept that to be the case.

Is there a good reason why criminalizing those who organise an unnotified public assembly should be permitted, but criminalizing those who participate in such an assembly should not? It might be unfair to penalise someone who simply happens to take part in such an assembly. But the law does not do so. It is only an offence for a person 'knowingly' to participate in an unauthorised assembly, 'without lawful authority or reasonable excuse.' Seen in this light, the offence of participating in an unnotified public assembly involves almost as much moral culpability as the offence of organising such an assembly.

Even if, in theoretical terms, one can distinguish the degrees of culpability, would it be practicable to limit the offence to organisers? If those responsible for organising a public assembly fail to give notice of it then, by definition, the police will not know who they are. They may not even turn up in person when the assembly takes place. Who then can be prosecuted as organisers? One cannot assume that those at the front of the assembly are necessarily the organisers. Unless particular individuals confess to being the organisers, the prosecution would probably face an impossible hurdle in bringing the culprits to justice - even though an offence has obviously taken place. Do we want to make a mockery of the law?

Seen in this light, I do not consider that the imposition of a criminal sanction for failure to give notice, or for knowingly participating in an unauthorised public assembly, can be regarded as disproportionate, or contrary to the ICCPR.

The Penalties

Another focus of criticism is the level of penalty laid down for organizing or participating in an unauthorized assembly. The maximum penalties are 5 years imprisonment for conviction on indictment, and a fine of $5,000 and imprisonment for 3 years on summary conviction.

The maximum penalties set for any offence are usually imposed only for the worst examples of the offence concerned. Therefore, in judging the appropriateness of the penalties relating to unnotified public assemblies we must consider some of the worst examples of the offence.

Take, for example, the situation where the police have been notified that a large demonstration is to take place at a certain time and place. A rival demonstration is then organized for the same time and place by another large group, who plan to disrupt their opponents' meeting, but the police are not notified of this. Had they been notified, the police would have justifiably imposed conditions as to the place of the second demonstration on the grounds that this was necessary in the interests of public order and public safety. The two rival demonstrations then take place at the same time and place, leading to serious injuries to participants and bystanders, and to considerable damage to property. Will it be too harsh if those who unlawfully organised the rival demonstration are liable to a more severe penalty, such as imprisonment?

Earlier in this meeting, the Secretary for Security referred you to an example involving people pushing each other, resulting in many deaths by suffocation. The organisers have failed to give prior notice to the police, which leads to the tragedy that would have been avoided. Under such circumstances, if the law only stipulates a fine, is the penalty adequate to achieve the purpose of the ordinance which is to protect public safety?

It is in the context of those kinds of examples that one should judge the current penalties. The situation where a small group of demonstrators hold an unnotified, but entirely trouble-free, public assembly falls at the other end of the scale of seriousness. It is inconceivable that participants in such an assembly would receive penalties anywhere near the maximum provided for.

The decision-maker

Some commentators accept that there must be a power, in certain circumstances, to prohibit public assemblies or to impose conditions in relation to them, but they object to the fact that it is the police who have this power. The organisation JUSTICE, for example, says that a prohibition of a public assembly should have the sanction of a court. Others have said that, if any conditions are imposed by the police, there should be a right to have the decision reviewed by a judge immediately.

In assessing these comments, one must appreciate that, if the police do object to any public assembly, they must give reasons. An appeal lies against any such prohibition or objection to an independent, impartial board, which is currently chaired by a retired judge. And, if an appeal fails, the organizers can still challenge the police decision in the courts by way of judicial review.

It is clear, therefore, that the current law contains more than adequate safeguards against any abuse of police power. Furthermore, the police as law enforcement agents are in the best position to professionally assess the dangers that may arise out of public meetings and processions. As long as their decisions are subject to an independent mechanism of appeal and judicial review, it will be most proper to leave the decision making with the police.

Combined effect of restrictions

Each of the restrictions on the right of peaceful assembly I have mentioned is, I believe consistent with the ICCPR. Some people have, however, emphasised that the combined effect of the restrictions, including the penalties imposed, must not be so overbearing as to have the effect of stifling or threatening any exercise of such a right.

The Administration accepts this, but can see no grounds on which the current law can be faulted in this respect. With over 6,000 public rallies since Reunification, Hong Kong has become known as the 'city of protests'. Does anyone seriously believe that the Public Order Ordinance has the effect of stifling or threatening any exercise of the right to take part in such rallies?

III. Arguments for Reform

Let me finally turn to my third responsibility - to consider the merits of legal arguments in favour of reform. I emphasize legal arguments, rather than arguments based on policy considerations.

It should be clear by now that I do not accept that reform is needed in order to make the current law consistent with human rights guarantees. In my view, it is already consistent with them.

What other legal arguments are there? Contrary to what some have alleged, there has been no unfair targetting of certain demonstrators by the police; there has been no arbitrary or improper use of the discretion to prosecute; no heavy penalties have been imposed on demonstrators; and there is no evidence whatsoever that the current law unfairly restricts the right to peaceful assembly.

Some people have suggested that the Law Reform Commission should review the Public Order Ordinance, and I note Hon Emily Lau's proposed amendments to the motion. But, after months of debate, the legal case for such a review has not been made out. The main criticisms levelled at the Ordinance relate to certain details of the legislative scheme - such as the required notice period and the level of penalty. Those are not suitable matters for the Law Reform Commission to look into. That Commission's time is better spent on broader issues. In fact, the Law Reform Commission does not take charge of all reforms in law. If anyone has doubts on the Commission's functions, he will be welcome to inquire with the Commission or to browse the website of the Commission.

The Administration is willing to listen to criticism of the law. The fact that the Administration has been defending the current law does not mean that it has not, at the same time, listened to criticism. As a policy matter, the Government will consider whether to revise laws in light of operational experience. Having said that, the Government has firm belief in the constitutionality and lawfulness of the existing provisions. We have carefully considered the views that have been expressed. But, to date, we still consider that the current law reflects 'a proper balance between protecting the individual's right to freedom of expression and right of peaceful assembly, and the broader interests of the community at large.' I therefore urge Members to vote for the motion and against the amendments proposed by Hon Emily Lau and Hon James To.

End/Wednesday, December 20, 2000

NNNN