SCMP Monday, October 9, 2000
Momentum building for public-order law changes
The belated decision by the Government not to lay charges against a group of young students for an "unlawful" demonstration in April over tuition fees has eased the political pressure for leniency to be shown to the students.
But ironically, as we wait to see whether charges will be laid against five students for a later demonstration on the right of abode, last week's decision is likely to increase the momentum for an amendment of the Public Order Ordinance. Even though the Government might eventually survive a legislative attempt to change the 1997-enacted law, it faces a more defiant coalition of student leaders and pro-democracy activists mounting a campaign of civil disobedience against what they call the "evil law".
Putting a brave face on the growing demands for a review of the ordinance, Chief Executive Tung Chee-hwa said on television that he did not think the mounting pressure was a "time bomb" waiting to explode. The Government would not be selective or politically motivated, he said, when considering whether or not to prosecute protesters.
While the overall assessment by the Department of Justice on the April demonstration appears to have involved non-political considerations, it seems unlikely the administration would not have taken on board public pressure when deciding to take no action against the students.
Bear in mind the apparent clear breach of the legal requirement for prior approval to be obtained from the police before the rally over tuition fees went ahead.
The Public Order Ordinance in its present form was amended in accordance with a draft formulated by Mr Tung when he was Chief Executive-designate before the handover. The law prior to the change was one of the legacies of former governor Chris Patten, which Beijing ruled unconstitutional and said must go after the change of sovereignty.
Rubber-stamped by the provisional legislature in the form of midnight legislation immediately after the handover, the law says police approval is required for marches of more than 30 people or sit-ins of more than 50. Approval must be sought seven days in advance. The amendment followed a relaxation in 1996 that merely required a notification to police in advance.
Despite persistent calls from human-rights advocates for a reinstatement of the law to its colonial version, there had been no strong political pressure for an amendment. This is not because of a social consensus on the rationality of the prior permission requirement, but mutual understanding of the spirit to strike a reasonable balance between the right to demonstrate freely and the need to maintain social order.
Under the social contract, it is commonly held that police will in effect turn a blind eye to illegal demonstrations if they do not pose any serious disruption to social order. This is what the authorities have done with regard to about 300 rallies which have been held without prior notification. Over the past year, it appears the law enforcement agencies have felt a need to toughen their stance on rallies and demonstrations and redefine the balance.
A confidential internal police report revealed by the South China Morning Post on Friday shows fears among some senior officers that failure to arrest "troublemakers" would demoralise frontline police. The report said: "Some officers are concerned about the increasing hostility of protesters who have openly challenged frontline officers deployed to control their demonstrations."
The mention of growing pressure on frontline officers is understandable, though concerns about hostility are not necessarily reasonable. Over the past year, the "city of protests" saw increasing numbers of rallies and demonstrations by a variety of different groups. The rise in the number of rallies, however, must be distinguished from any increase in hostility and violence.
With the exception of some protests by right-of-abode seekers, it is fair to say most, if not all, of the demonstrations have been conducted peacefully.
Fears of a deterioration of social order in the early months of the SAR, that prompted Mr Tung and Beijing to tighten restrictions on rallies, have largely dissipated.
Ironically, the degree of self-restraint and mature conduct shown by protesters has contrasted sharply with the seemingly growing distrust of the authorities over the public's ability to behave themselves.
Pressure for the Government to change a bad law is building. It has chosen a bad time and the wrong group of protesters to signal a change in its tactics.
Mr Tung, together with his senior aides and advisers, has been quick to rule out any false hope for an amendment to the ordinance. The government-friendly Democratic Alliance for the Betterment of Hong Kong (DAB) has opposed demands for change while the Liberal Party appears to be more open-minded.
Spearheaded by leaders of the Hong Kong Federation of Students, calls for an amendment to the Public Order Ordinance have become entangled with fears that tougher government action was an attempt to suppress the student movement and the expression of dissent.
The resurgence of this social movement has, not surprisingly, coincided with a deepening feeling among pro-democracy forces of a loss of direction and strategy. In an article published in the Chinese-language Ming Pao last week, a key Democrat leader called for a return to the street protest movement of the 1980s now that the powers of the legislature were curbed by the Basic Law. He was referring to restrictions on the powers of lawmakers to initiate and move amendments to bills relating to policies and voting requirements.
"The new legislature has begun," said Cheung Man-kwong, head of the Professional Teachers' Union, who called on teachers to support the students. "The democracy camp should no longer have blind faith in the legislature. The civil disobedience of the Hong Kong Federation of Students has triggered off a lot of repercussions. Let us return to the days of resistance from within the society [outside the legislature] in the 80s, and open up a new battle-line in the democratic movement."
Mr Cheung was also among leaders of the Democratic Party, including Martin Lee Chu-ming and Szeto Wah, who joined the "unlawful demonstrations" last Monday against the ordinance. The Democrats will hold a roundtable discussion with like-minded allies and human-rights and student groups today to decide the next move in the campaign to abolish the requirement for prior permission from the police for demonstrations.
It follows signs of diminishing zeal of Democrats in pursuing an independent inquiry into the saga concerning University of Hong Kong pollster Robert Chung Ting-yiu's allegations that the Chief Executive's office was involved in attempts to interfere with his work, and a separate inquiry on the case of former DAB legislator Gary Cheng Kai-nam, who gave up his seat after admitting failure to declare his business interests. They will instead be determined to assert their uncompromising stance inside and outside the new legislature through the campaign against the Public Order Ordinance.
Apart from the British colonial legacy behind the ordinance, there are high stakes for the Tung administration in the imminent battle over the rights ordinance. They include concerns among police and security officials. Mr Tung also firmly believes rights and freedoms are never absolute and must be balanced against the collective good and social responsibility. He has cited cities such as New York, London and Sydney which have similar laws to regulate public assemblies.
More than three years after the handover, a fresh debate on the fundamentals behind the Public Order Ordinance, whose content was tainted by the Sino-British rows, would be welcome. The point of balance between rights and social order should be determined by what people value most, after considering the overall and changing needs of society. A society that is free and tolerant towards dissent should be in the interests of all. But as the issue has now become sharply politicised and romanticised, it looks more unlikely that there will be a calm, rational debate and an early consensus.
Chris Yeung (
) is the Post's political editor and is currently a visiting fellow at Brookings Institution in Washington.