SCMP Tuesday, October 10, 2000
Sleeping dog wakens to intimidate community
The argument that the students must be prosecuted does not wash. By their own admission, of the 6,000 or so demonstrations which have taken place in the three years since reunification with the mainland, in only five cases have the police either prohibited the demonstration or objected to an application for one to be held. Hundreds of demonstrations have taken place without any notification being sent to the police or the so called "notice of no objection" being issued by the Commissioner of Police.
The decision of the Secretary for Justice, Elsie Leung Oi-sie, not to prosecute five students for their April demonstration against higher tuition fees has averted strong - and justified - criticism of the Government for curtailing the freedom of expression and peaceful demonstration. But this does not remove the need to repeal a bad provision in the Public Order Ordinance.
The reasons are simple. First, the provision is wrong. The right to peaceful demonstration is a fundamental human right guaranteed by the Basic Law. It does not mean the police are not allowed to carry out any control and regulation necessary to protect public order and safety. But the present Public Order Ordinance makes demonstrating without prior notification and permission a criminal offence in itself. Section 17A(2) describes a demonstration without prior notification and permission as an "unauthorised assembly". Section 17A(3) makes the organisers and participants of an "unauthorised assembly" guilty of an offence punishable by imprisonment for up to five years.
This applies quite independently of whether there is any unruly conduct, refusal to obey the orders of the police, or other breach of the peace. You can be as peaceful as you like, but if you failed to give notification beforehand your peaceful demonstration becomes a crime.
This is plainly wrong. The thousands of demonstrations which took place without mishap shows there is no correlation between notification and orderly demonstration. Making the failure to notify a crime is wholly unnecessary for public order or safety. Such provisions therefore contravene Article 39 of the Basic Law which protects human rights, and must be repealed.
As long as the Government does not enforce these provisions and nobody is ever prosecuted for demonstrating without notification, it may be that the community would prefer to let sleeping dogs lie. But the recent incidents show that this is not a sleeping dog. It can be unleashed to bark and intimidate and bite.
The knowledge that such a dog is prowling and growling at the end of the leash in the hands of the Government will make people nervous about exercising their rights. That someone is actually bitten, and publicly bitten, will send a chill through the community. Such an effect is sometimes worse than the crushing of rights itself.
Notifying the police may seem a small thing and easy to do. But this is not a reason for making the failure to notify a criminal offence. There is no reason to impose such a requirement. Nor was there any justification for it in April-May 1997, when it was proposed by the Chief Executive-designate, Tung Chee-hwa, and approved by the Provisional Legislative Council. It was strongly objected to by the Bar and the Law Society, human rights and numerous other groups, and roused the concern of the international community.
The requirement of notification formerly in the ordinance had been repealed in 1995 by the Hong Kong Government as part of its review of laws which contravened the Bill of Rights Ordinance. The 1995 repeal was declared to be inconsistent with the Basic Law by the National People's Congress (NPC), simply because the NPC considered certain parts of the Bill of Rights Ordinance inconsistent with the Basic Law. On the pretext that this NPC decision left a "legal vacuum" which had to be filled, the present provisions were proposed and approved.
This is not only the time to repeal the provisions which turn non-notification into a crime. It is also the right time to renew previous objections to a more fundamental change to the law. Under the law that existed in 1995, it was only lawful for the police to interfere with a demonstration in the interests of public safety or public order. Where, for example, amplification of music or speech was concerned, they could only intervene "to prevent an imminent threat to public safety or order".
These grounds have now been changed to "in the interests of national security or public safety, public order or the protection of the rights and freedom of others".
Not only are these criteria broader and more abstract, but they also introduce the concept of "national security" for the first time. The suggestion is that even if there is no imminent threat to public safety or order, the police can interfere if they believe interests of national security are involved.
Speaking on Mr Tung's behalf in early 1997, his then secretary for policy co-ordination, Michael Suen Ming-yeung - now the Secretary for Constitutional Affairs - explained the amendment was intended to provide a legal basis for preventing demonstrations in support of Taiwan or Tibetan independence. This means that the Public Order Ordinance was amended as a prelude to action on Article 23 of the Basic Law, which requires the SAR Government to enact legislation outlawing treason, secession, subversion and sedition.
For the purposes of the ordinance "national security" is defined as "the safeguarding of territorial integrity and the independence of the People's Republic of China". This was lifted from the definition of the United Nations Special Rapporteur's Study on Article 29 of the Universal Declaration of Human Rights, but with the second half of the UN definition omitted, which states ". . . this requirement should not be used as a pretext for imposing arbitrary limitation or restrictions on the exercise of human rights and freedoms". One fears that this is precisely how the ordinance is going to be used.
If that time should come, as Mr Suen had forewarned, could the people of Hong Kong rely on the courts to interpret the law in a way which would let freedom win?
Maybe they could. But the elected representatives of Legco should not count on this happening. Vague laws are bad laws. Vaguely threatening laws with which officials threaten the public are the enemy of freedom of expression and the rule of law.
Legco should not wait for heroes or martyrs or our bright-eyed youths to put it to the test by chancing their limbs and liberty. Instead, Legco should start the process of amending the law. Mr Tung should support the call for the law to be reviewed and amended. To do otherwise is to court greater public discontent and censure.
Margaret Ng Ngoi-yee is a legislator representing the legal profession.