Response to frequently asked questions on Public Order Ordinance

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On October 25, 2000, the Security Bureau issued a set of frequently asked questions about the Public Order Ordinance together with the replies. At the time only the Chinese version of the Q & A's was available. The English version is now ready. Please see full text below:

Recently, the media and the general public have frequently raised questions about the Public Order Ordinance and the rallies held on April 20 and June 26 this year. Replies given by a Government spokesman are detailed below for the public's easy reference.

Q1: On what grounds did the Police arrest the students participating in the procession on 20 April?

A1:

* The students were arrested because they were suspected to have taken part in or assisted in organising an unauthorised assembly.

* The Police warned the participants before the procession began. However, the students did not pay heed to the advice of the Police and even made several attempts to break the Police line. The Police, therefore, considered the procession had caused disruption to public peace.

* As a law enforcing agency, the Police are responsible for carrying out their duties in accordance with the relevant laws and taking appropriate actions after conducting investigation and seeking legal advice.

* During the demonstration, the Police had to strike the balance between the protection of right of expression of the participants on the one hand and the prevention of inconvenience and danger to the public on the other. The Police had to facilitate the orderly proceeding of the demonstration and ensure that public peace would not be breached.

Q2 : Did the Police take enforcement actions selectively in respect of the processions held on 20 April and 26 June? Why were the actions directed against the students?

A2:

* The way the Police handled the two unnotified processions held on 20 April and 26 June was not directed against the students.

* The way the Police handled the procession held on 20 April was explained in A1.

* As regards the procession held on 26 June, the Police arrested three groups of people (16 persons in total). Apart from the 7 members of the Hong Kong Federation of Students, 9 right of abode claimants/supporters were also arrested. It can illustrate that the Police did not aim at the students or any particular group of people but instead, treated all people equally and took appropriate actions having regard to the circumstances of each case.

* Since 1 July 1997, some 6 000 demonstrations/processions have been held, of which 408 had not given prior notification according to the law. In these cases, the Police usually gave verbal warnings, issued written warnings, or conducted follow-up investigation and sought advice from the Department of Justice, taking account of the seriousness of the cases and response of demonstrators to the warnings of the Police. The Police did not take similar follow-up actions in respect of other processions as these cases only involved breaches of minor or technical nature. For example, ad hoc processions/demonstrations were held in response to some unforeseen incidents so that prior notification was impossible; or the organisers actually did not know the requirement of prior notification and the procession/demonstration did not breach public peace. Under these circumstances, the Police will usually issue warnings only.

* The actions to be taken by the Police against the participants of unnotified processions/demonstrations mainly depend on the impact of the processions/meetings on public order, and whether the people concerned co-operate with the Police upon their advice.

* The objective of requiring organisers of public meetings/processions to notify the Police in advance is to allow the Police to take appropriate measures to facilitate the processions/meetings. These measures include crowd control and special traffic management measures, etc. They are taken to ensure that the meetings/processions can proceed in an orderly manner without causing undue inconvenience to other people. There were some 6 000 meetings/processions held since 1 July 1997, the Police only objected to 5 and finally accepted 3 of them after changes in route, place and number of participants were made. Hence, as a matter of fact, the Police have objected to only two cases so far. The facts speak for themselves that the Police have not carried out any political scrutiny to the background of demonstrators or the content of the demonstrations, and that it is absolutely out of the question that the Police have targeted the students.

Q3: Some LegCo Councillors gave open support for the students participating in the June 26 demonstration and "defied the law" by taking part in unnotified meetings/processions, what is the Government's stance on this and will actions be taken against these Councillors?

A3:

* The Government wishes to appeal to people who take part in processions to do so in a lawful and peaceful manner. People who violate the law will have to bear possible legal consequences. Hong Kong is a society with rule of law and has sufficient channels for members of the public to express their views so that demonstrators need not resort to confrontational means. People should discuss matters in a rational and objective manner instead of emotionalising and politicising the matters. In particular, the LegCo Councillors, who have sworn to uphold the Basic Law and abide by the law, should not take the lead in breaching the law and "challenge" frontline police officers to arrest them, as these actions might provoke others to cause a breach of the public peace.

* LegCo Councillors who want to air their views can do so in the LegCo. They can raise the issue in the Panel on Security, and can also propose motion debates in the LegCo. Even if the Councillors choose to express their opinions by means of processions/demonstrations, they should do so in a lawful and peaceful manner. Should everyone act within the law, the dispute can be solved more smoothly.

* The two demonstrations held by the students have turned into a challenge to the Public Order Ordinance (POO). This in fact reflects only the stance of some people who have all along opposed the POO, and does not necessarily represent a broad consensus of the community. There are people calling the phone-in programmes to express their different views, or writing to newspapers and the Security Bureau in support of the Government. The Government hopes that the media and the public would find out the truth by discussing the matter in a rational way without politicising it or pushing the society to the brink of chaos.

* Hong Kong is a society with rule of law. The POO has been approved by the legislature to be part of the Hong Kong law. We must respect the rule of law and abide by the law, otherwise public order will be undermined.

Q4: Will the Government take law enforcement actions against the civil servants who took part in an unnotified public procession weeks ago?

A4:

* We are deeply concerned about this case. Rule of law is the cornerstone of prosperity and stability for Hong Kong, and all of us should abide by the law and civil servants are no exception. Any civil servants who have breached the law are liable to prosecution.

Q5: The Police have the power to object a procession. Does it mean that the Police have too much power? What are the systems for procession in overseas countries? Should the decision to prohibit a procession be made by the court? Is there any channel of appeal for those applicants whose applications for procession were turned down?

A5:

* As regards the details of controls and permit systems for processions in overseas countries, please refer to the information on the government Internet website. Overseas countries usually adopt a permit or notification system for public processions and meetings and the notice period ranges from 3 to 60 days. Hong Kong adopts a middle-of-the-road approach and its notification system is not harsh at all. Moreover, in overseas countries, regulations or criteria are in place to object or prohibit a procession. In most cases, the decision to prohibit a procession is made by mayors, the police or executive authorities, and only in rare cases the decision is made by a court.

* Under the POO, an organiser who is aggrieved by the decision of the Police to object a procession or to impose conditions can lodge an appeal to an independent Appeal Board chaired by a retired judge and served by unofficial members.

Q6: Is the current POO harsher than that before the 1995 amendments? Can this be called a "resurrection of a draconian law"?

A6:

* The current POO is by no means a resurrection of the pre-1995 law. Prior to the 1995 amendments, public processions of not more than 20 persons were exempted from applying for a licence. After the 1995 amendments, processions of not more than 30 persons were exempted from giving notification. The relaxation in the number of participants remains valid in the current law.

* As regards public meetings, the notification mechanism exists both before and after the 1995 amendments. However, under the POO as amended in 1995, the number of participants that was eligible for exemption from notification requirement relaxed from no more than 30 to no more than 50. This relaxation remains valid after 1997.

* One of the most significant changes of the 1995 amendments was the replacement of the licensing system by a notification system for holding of public processions. Organizers need only to give written notification 7 days in advance to the Police. The current POO still retains this system and the operation of the system is clearer than the 1995 amendments.

* The 1995 amendments did not provide for the issue of a notice within a time limit if the Police had decided not to object to the procession. In stark contrast to the licence system prior to 1995, it is now stipulated that if the Police do not issue a notice of no objection within the specified time limit, the Police are taken to have no objection and the procession can therefore take place.

* It should be stressed that under the 1995 amendments, the Police already had the power to prohibit a procession on the ground of public order or public safety. By comparison, the current law has added two further grounds of objection, i.e. national security, and the protection of the rights and freedoms of others.

* In fact, the grounds of objection under the POO are consistent with the restrictions allowed in the International Covenant on Civil and Political Rights (ICCPR). The only difference is that the POO has not adopted all the restrictions set out in Article 21 of the ICCPR, and thus is more liberal.

* So far, the Police have never invoked the ground of national safety to prohibit any procession. The POO was amended in this regard to reflect that Hong Kong is part of China after 1 July 1997. If the Government of the Special Administration Region faces challenge in respect of national security in future, it will then need appropriate law so that suitable actions can be taken.

* From the above, we can see that the current POO is by no means a resurrection of a draconian law. On the contrary, the current law not only is more liberal than the 1995 amendments, but also limits the power of the Police, enabling organisers of processions to have a clearer understanding of the stance of the Police.

Q7: Does the POO contravene the ICCPR?

A7:

* The POO not only conforms with the ICCPR, but also imposes lesser restrictions.

* The right of freedom of expression as protected by the ICCPR is not an absolute right. Paragraph 3 of Article 19 of the Covenant provides that the exercise of the right carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

1. in the interests of national security or public safety, public order (ordre public), or the protection of public health or morals;

2. for the protection of the rights and freedoms of others.

* It can be seen that the civil and political rights provided for in the Covenant are not absolute. The Covenant is to strike a balance between the protection of human rights and the upholding of enforcement powers. The POO in Hong Kong also serves the same purpose. In line with the Covenant, the POO provides that the Commissioner of Police may prohibit the holding of a public meeting or procession "in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedom of others".

* In fact, according to Article 39 of the Basic Law, the provisions of the ICCPR as applied to Hong Kong shall remain in force. In formulating the provisions of the POO concerning public assembly and procession, the Administration has already taken into full account this requirement to ensure conformity with the Covenant.

Q8: Under the current POO, the Police can prohibit a public procession on the ground of national security. Is this a breach of human rights?

A8:

* As the two grounds of objection in the POO, i.e. "national security" and "protection of the rights and freedom of others", are based on Article 21 of the ICCPR concerning restrictions that can be imposed on the rights of peaceful assembly, they are in strict compliance with the Covenant. Moreover, the meaning of "national security" is clearly defined. This ground can only be invoked when the territorial integrity and the national independence are at risk. For the purpose of enforcing these provisions, a special administrative guideline has been issued to the Police. The current POO has, therefore, already imposed due restrictions on the Government's powers. The Government has never invoked this ground to object any public processions so far.

Q9: Please explain the background to the drafting of the ICCPR.

A9:

* The drafting work of the Covenant began in 1947 and completed in 1954. It was adopted by the United Nations in 1966.

* It took nearly 20 years for the Covenant to be adopted because of its binding effect and restrictions on the States Parties. If the Covenant stresses only the protection of civil and political rights but fails to ensure sufficient powers for the States Parties to safeguard their national security, public safety and public order or to protect the rights and freedom of others, the States Parties would find it difficult to implement and enforce the provisions of the Covenant. Therefore, the Covenant is a product of lengthy negotiations and compromises among the States.

* The Covenant affords protection to over 40 types of rights, but it also stresses that:

1. restrictions may be imposed on some rights;

2. under very exceptional circumstances, the States Parties may take measures derogating from their obligations under the Covenant.

* This reflects that the Covenant is to strike a balance between the protection of human rights and the upholding of enforcement powers. The POO in Hong Kong serves the same purpose, too.

Q10: There are calls for amending the POO from some quarters in the community. Will the Government consider amending or reviewing the POO?

A10:

* In formulating the provisions of the POO concerning public meetings and processions, the Administration has taken into full account the provisions of the Covenant to ensure conformity. Moreover, all actions taken in accordance with the POO must be in line with Article 39 of the Basic Law which provides that the provisions of the Covenant as applied to Hong Kong shall remain in force. The existing arrangements have served us well. The Government believes that the current legislation has struck a proper balance between the preservation of public order and public safety and the safekeeping of the freedom of expression and assembly. However, we will listen carefully to the views of all sides in considering appropriate actions to be taken.

Q11: Does the Government agree to let the courts decide whether the POO conforms with the Covenant?

A11:

* In a civilized society, courts offer a mechanism to mediate a dispute amicably, fairly and objectively. If there is a need in future for this matter to be dealt with by legal proceedings and the court decides that the POO is in contravention to the ICCPR, we would of course review and revise the POO accordingly. Nevertheless, we respect the Department of Justice's decision not to prosecute those involved in the processions on 20 April and 26 June.

Q12: Since the provisions concerning unauthorised assembly are virtually not enforced by the Police, and that the breach of public order by demonstrators has already been dealt with by other legislation, will the Government consider repealing the said provisions?

A12:

* Hong Kong is a small place, whereas public processions and meetings often take place in or along very busy and crowded streets. In order to allow sufficient time for the Police to make appropriate arrangements such as crowd control and special traffic management measures, there is a practical need for a notification given well in advance. Besides, the Police have always adopted a flexible approach and will accept notification less than seven days as far as practical. If organisers of these activities do not abide by the relevant regulations, it may easily cause chaos, inconvenience the public and jeopardise social order. Under such circumstances, it is important to retain the present notification system under the POO, and to ensure the effectiveness of the system, the provisions concerning unauthorised assembly should not be repealed. More than 6 600 public processions and meetings have been held since 1 July 1997. Most of them were conducted in a peaceful, orderly and lawfully manner. We have no plan to revise the POO at the moment.

Q13: The Department of Justice has decided not to prosecute the people arrested during the two processions on 20 April and 26 June. Does it mean that the Police would tolerate participants of unnotified demonstrations and would not arrest the persons concerned or prosecute them so long as the demonstrations are held in a peaceful manner?

A13:

* Under the principle of everyone being equal before the law, no one could be exempted from the possibility of being prosecuted. In taking enforcement actions, the Police have to take a number of factors into consideration, including the time, place, number of participants, impact of the procession on the traffic, whether the procession is held in a peaceful manner, and the response of the participants to the advice of the Police. The Police will handle the matter according to the due process of law and investigate if criminal elements are involved.

* This case will not set a precedent. The Police will continue to take enforcement actions in accordance with the law. Each case will be considered on its own merits before any appropriate follow-up actions are taken. Front-line Police officers have been issued with guidelines on enforcement in respect of these matters, and the Police will continue to adhere to these guidelines in future.

End/Thursday, December 14, 2000

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