Tightening The Leash: Threats to Freedom of Association and Independent Human Rights Advocacy in the New Hong Kong

Tightening The Leash: Threats to Freedom of Association and Independent Human Rights Advocacy in the New Hong Kong

Lawyer Committee for Human Rights

Hong Kong Human Rights Monitor

June, 1997

Lawyers Committee for Human Rights and Hong Kong Human Rights Monitor

Since 1978 the Lawyers Committee for Human Rights has worked to promote international human rights and refugee law and legal procedures in the United States and abroad. The Chairman of the Lawyers Committee is Norman Dorsen; Michael H. Posner is its Executive Director. Stefanie Grant is Director of Program and Policy. George Black is Research and Editorial Director. Mehlika Hoodbhoy coordinates the Committee's Asia program.
The Hong Kong Human Rights Monitor works to promote better human rights protection in Hong Kong, particularly in light of the transfer of administration from the United Kingdom to the People's Republic of China. The Chairperson is Paul Harris. Christine Loh and Stephen Ng are Deputy Chairpersons. Mary Ignarski is Secretary. Phillip Ross is Treasurer. Law Yuk Kai is Director. Lai Wing Yiu is Executive Officer. George Edwards and Maryanne Joyce are United States Representatives. Richard Lee is Vancouver Representative. Sumithra Dhanarajan-Davies is London Representative.

Copies of this report are available from:

Hong Kong Human Rights Monitor Lawyers Committee for Human Rights

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TABLE OF CONTENTS

I. Introduction
II. From Passivity to Activism: Human Rights NGOs and the Law in Hong Kong: A. From 1949 to 1989; B. 1989-1992: The Bill of Rights and Amendments to the Societies Ordinance

III. NGOs in Hong Kong Today

A. Grassroots NGOs

B. Multi-Ethnic Advocacy Groups

C. Other Legally-Oriented Groups

D. Expatriate Special Interest Groups

E. Regionally Focussed Human Rights Groups

F. International Human Rights NGOs Present in Hong Kong

G. Other Hong Kong Special Interest NGOs

H. Women's Groups

I. Gay and Lesbian Groups

J. Refugee Groups

K. Religious Groups

L. Other Local Groups

M. Alliances of NGOs on Specific Issues

IV. The New Legal Regime

A. General Framework

B. Article 23 of the Basic Law

C. Definitions, Interpretation and Application of Terms in Article 23

V. The Consultation Document on Civil Liberties and Social Order

VI. Recommendations

Appendix I: Consultation Document on Civil Liberties and Social Order

Chapter Two: Background

Chapter Three: In Perspective

Chapter Four: Societies Ordinance

Chapter Five: Public Order Ordinance

Appendix II: Responses to the Consultation Document on Civil Liberties and Social Order

A. Response of Hong Kong Human Rights Monitor

B. Response of Lawyers Committee for Human Rights

PREFACE AND ACKNOWLEDGMENTS

This report originated in a panel discussion at a conference entitled Hong Kong: Preserving Human Rights and the Rule of Law, held at the Washington College of Law on March 18-19, 1997, and jointly organized by the International Legal Studies Program, Washington College of Law; Human Rights Watch/Asia; and the Lawyers Committee for Human Rights.

The principal author of this report was George Edwards, Associate Professor of Law at Indiana University School of Law, Indianapolis; director of the Indiana University Program in International Human Rights Law; former associate director of the Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong; and member and Washington, DC, representative of the Hong Kong Human Rights Monitor. Additional sections were drafted by George Black, research and editorial director of the Lawyers Committee for Human Rights, who also edited this report.

Law Yuk Kai and Paul Harris (for the Hong Kong Human Rights Monitor) and Mehlika Hoodbhoy, Sarah Netburn, Leslie Conner and Kaecee Conklin (for the Lawyers Committee), offered valuable assistance with the preparation and production of this report.

New York City

Hong Kong

June 1997

I.INTRODUCTION

Is this report illegal? Will the organizations publishing it be subject to prosecution? These are not questions that either the Lawyers Committee for Human Rights or the Hong Kong Human Rights Monitor is accustomed to asking. Both organizations have long published reports that are controversial or unpopular with governments. But our activities have never been declared illegal. So why should this report run that risk?

The answer may lie in the timing of its release. If this report were published at 11:59 p.m. on June 30, 1997, it would merely be part of the normal exchange and collaboration between organizations accustomed to operating under the rule of law. If, on the other hand, publication were delayed until 12:01 a.m. on July 1—the day that Hong Kong reverts to Chinese sovereignty— it is not out of the question that the report, with its critical assessment of new legislation, could be defined as a threat to the "national security" of the Hong Kong Special Administrative Region (HKSAR).

The laws that will come into force in Hong Kong on July 1 contain a number of provisions that threaten the future of the territory's vibrant and sophisticated human rights community. It will become mandatory for all associations to register with the authorities. Peaceful demonstrations will be subject to a system of prior police approval. Both associations and assemblies can be prohibited on ill-defined grounds of "national security."

As in many countries, non-governmental human rights organizations were slow to develop in Hong Kong. Just two decades ago, only a handful of human rights NGOs existed outside of Europe and the United States. Today, literally thousands of these groups are engaged in promoting and protecting human rights in almost every country of the world. Through a variety of non-violent activities—including documentation, lobbying, legal assistance and public education—these human rights NGOs seek to hold governments and powerful non-governmental forces accountable to the universal standards contained in international human rights and humanitarian law. NGOs are engaged in promoting and protecting rights across a wide spectrum. These include civil and political rights; economic, social and cultural rights; labor rights; and the rights of indigenous peoples.

Human rights NGOs provide a counterbalance to official information on human rights concerns in any particular country. They cast a spotlight on abuses which governments seek to conceal. And they give a voice to those who cannot speak for themselves. By working to create the space in which others may express themselves freely, human rights NGOs are an essential ingredient in a functioning civil society. Consequently, the extent to which a government accepts and facilitates the work of these NGOs is a measure of the sincerity of its verbal commitment to human rights and the rule of law. If governments act to curb the activities of human rights NGOs, the whole society is the poorer.

If they are to promote and protect human rights effectively, NGOs must enjoy one right above all—the right to freedom of association. The ability to defend and monitor human rights is of course intimately related to a cluster of other rights, such as freedom of expression and assembly, or the right to a fair trial. Freedom of association is meaningless unless protected within the framework of these other rights. At the same time, these other rights are insufficient on their own to safeguard groups working to promote and protect human rights. The right to freedom of association has a special significance for NGOs. Only freedom of association can offer an NGO the protective framework it needs to go about its business freely and without having to look over its shoulder. Enshrined in Article 22 of the International Covenant on Civil and Political Rights (ICCPR), and mirrored in the principal regional human rights instruments, freedom of association may be seen as the guarantor, or "gatekeeper," of the entire range of rights for which NGOs work. If governments restrict the freedom of association of human rights groups, this has serious negative implications for the enjoyment of all human rights.

Yet freedom of association remains in many respects the neglected right. While physical attacks on NGOs and individual advocates have drawn increasing attention,(1) little has so far been done to advocate for a stronger legal framework to protect freedom of association. International law on freedom of association has been only sketchily developed and interpreted. And while the killing of a human rights lawyer or the firebombing of an NGO's offices are readily understood as serious human rights violations, the often subtly restrictive legal and regulatory framework in which NGOs must operate is little discussed and poorly understood.

Precisely because of their critical importance in encouraging debate and openness in a society, many human rights NGOs have encountered the hostility of their governments, which have often resorted to intimidation and harassment to disrupt or prevent their work. Such hostility tends to take two forms. The first is open attacks on the individuals who organize and work for human rights NGOs. The second is a more subtle approach in which legislation is used to hamper or prevent the operation of these groups.

These legislative restrictions can vary widely. In some cases they go to the right of an organization to exist at all; in others, to its ability to operate effectively and without fear of retribution. They include both restrictions on the right of individuals to establish and join an organization of their own choosing and on the right of the associations themselves to pursue their goals.

It is threats of this sort that now loom before Hong Kong's human rights community. Will Hong Kong's human rights NGOs be able to go on functioning, unencumbered by excessive restrictions, after July 1, 1997? To answer that question, this report briefly surveys the evolution of human rights NGOs in Hong Kong. It examines the development of the law, including: the Societies Ordinance, which since 1949 has governed the establishment and operation of Hong Kong NGOs; Article 23 of the Basic Law of the Hong Kong Special Administrative Region, which calls for the enactment of certain legislation post-1997;(2) and other prospective legislation that may affect NGOs after 1997.

Until fairly recently, human rights NGOs in Hong Kong were few in number, and often narrow and provincial in their focus. Today they are vibrant, abundant and astute in their dealings with the international community. Despite this metamorphosis, the strong presumption exists that they are likely to face a variety of new burdens after the reversion to Chinese sovereignty. Those burdens will vary according to the character of particular groups, and the precise nature of their work. As a guide to how they are likely to fare after July 1, we have attempted to classify the principal Hong Kong NGOs into a number of broad categories, according to their membership and focus.

Hong Kong's human rights NGOs have enjoyed extensive protection under domestic ordinances, international human rights treaties and the common law. That now seems likely to change. Protection under the Societies and Public Order Ordinances is jeopardized by the repeal of those amendments, which had been introduced in 1992 and 1995 respectively, in an effort to bring Hong Kong laws into conformity with the ICCPR. Protection under international treaties and the United Nations bodies that monitor them may fail because it derives from the United Kingdom's ratification and extension of those treaties to Hong Kong, and China has so far failed to demonstrate its commitment to keeping the treaties in force—even though it is obligated to do so by the 1984 Sino-British Joint Declaration on Hong Kong, itself a treaty deposited with the United Nations.(3) Finally, NGOs stand to lose their longstanding protection under the common law, which, despite China's promises that it will remain in force after 1997, is threatened by the possible erosion of the rule of law in Hong Kong.

The incoming Administration of the Hong Kong Special Administrative Region (SAR), headed by Chief Executive-designate C.H. Tung, has made public statements suggesting that at least some human rights NGOs will be deemed "political organizations," and will therefore be obliged to sever their ties with overseas bodies, including international NGOs. One effect of this would be to deny some Hong Kong NGOs access to overseas funding, which has been vital to NGO operations.

In addition, freedom of expression for NGOs is already menaced by the growing climate of self-censorship in the Hong Kong media. Journalists have been warned that "objective reporting" will be permitted, but that "advocacy" will not—with neither term defined in law. Their news reports will be controlled on "sensitive" topics such as Tibet and Taiwan, and they will not be permitted to publish "personal attacks on the Chinese leaders" or put forward "rumors or lies."(4) In this climate, the media have begun to refrain from contacting Hong Kong human rights NGOs for comment on controversial human rights, governance or "political" topics.

Over the past decade, domestic human rights NGOs have played a critical role in Hong Kong's evolution from a politically dormant colony to a community in which the rule of law and the lively expression of diverse opinions go hand in hand. After July 1, 1997, these NGOs will be equally vital to the continued protection of the human rights of Hong Kong people. The problems and challenges that they now face are very real. Yet the prospects are not entirely bleak. Such vitality, once it takes root, is not easily silenced, and Hong Kong's human rights community has many friends. With the right combination of political will, domestic pressure and international persuasion, it may yet be possible to ward off the worst of the restrictions that now threaten the independent human rights advocates whose survival is so crucial to the continued rule of law in Hong Kong.

II. FROM PASSIVITY TO ACTIVISM: HUMAN RIGHTS NGOs AND THE LAW IN HONG KONG

A. From 1949 to 1989

Before the mid-1970s, human rights in Hong Kong were protected primarily by the common law, and by ad hoc provisions in Hong Kong government ordinances. There was no distinct body of human rights law in Hong Kong. There were also few active NGOs to promote internationally recognized human rights in the colony. Until the 1970s, Hong Kong NGOs were mostly engaged in community service rather than advocacy, and those advocacy groups that did exist confined their efforts primarily to the domestic arena.

In 1949, the United Kingdom, through the appointed Hong Kong Legislative Council, enacted the Societies Ordinance,(5) which was designed to control the creation and operation of associations in Hong Kong. In introducing the ordinance, the United Kingdom sought to prevent pro- Chinese Communist and nationalist forces from operating in Hong Kong and using it as a base of subversion.

The pre-1992 legislation required any organization that wished to operate as a society to apply to the Registrar of Societies (who was the Commissioner of Police) for registration or exemption at the moment it was established or deemed to be established (Section 5(1)). Pursuant to Section 5(2), the Registrar had the discretion to register the society if he was satisfied that it was established solely for religious, charitable, social or recreational purposes, or as a rural committee or as a federation or other association of a rural committee.(6)

The Registrar could refuse to register or exempt from registration any society on any of the following grounds:

(i) the society was a branch of or was affiliated to or was connected with any organization or group of a political nature established outside of Hong Kong;(7)

(ii) the society was likely to be used for any purpose prejudicial to or incompatible with peace, welfare, or good order in Hong Kong;(8) or

(iii)the constitution or rules of the society did not contain matters as prescribed by the ordinance or required by the Registrar.(9)

Furthermore, the Registrar had discretion to cancel the registration or exemption of a society on specified grounds (similar to those that applied to the approval of registration or exemption) and upon failure to otherwise comply with the ordinance, but the Registrar was required to afford the society an opportunity to be heard before cancellation (Section 10). Finally, any person aggrieved by a decision of the Registrar could appeal to the Governor in Council, who had the power to revoke or confirm the decision.(10)

Under the pre-1992 legislation, the Registrar could:

enter, with or without force, premises believed to be used as a meeting place for a society;
enter any meeting of any society at any time;
search the premises and persons present or leaving;
demand information about the number and places of all meetings of any society in the preceding six months;
demand that the society provide the Registrar with a membership list of the society; and demand "such other information as may be prescribed."(11)

There was no requirement that any action of the Registrar be reasonable.

NGOs fought for many years for the amendment or repeal of this draconian colonial legislation, which they deemed burdensome, unnecessary and contrary to domestic and international human rights law. Not until 1992, however, were its oppressive provisions superseded.(12)

Awareness of human rights issues grew in Hong Kong during the late 1970s, following the United Kingdom's 1976 ratification of the two principal human rights covenants—the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)—and the concurrent extension of both covenants to Hong Kong.(13) Human rights in Hong Kong now became subject to scrutiny and monitoring by the international community, notably by the United Nations treaty bodies. As individuals in Hong Kong became more aware of these new international protections, human rights NGOs in Hong Kong began to blossom, particularly in the international advocacy arena.

In 1978, the United Kingdom submitted to the Human Rights Committee its First Periodic Report on implementation of the ICCPR in Hong Kong.(14)

Though the reporting process went virtually unnoticed among NGOs, it marked the beginning of the robust, ongoing practice of Hong Kong NGO involvement in the United Nations Treaty Body reporting and monitoring process.(15)

By the early 1980s, the United Kingdom and the People's Republic of China had begun to negotiate the blueprint for the change of sovereignty—the Joint Declaration on the Question of Hong Kong. Hong Kong people became increasingly aware that "1997" was not just an Orwellian abstraction but something real that was rapidly approaching. Public awareness of human rights surged.

The United Kingdom's submission to the Human Rights Committee of its Second Periodic Report on Hong Kong in May 1988,(16) together with the November 1988 hearings on that report in Geneva,(17) attracted much greater attention. Several Hong Kong NGOs submitted comprehensive briefing papers and/or delivered oral briefings to the Human Rights Committee, and attended the 1988 hearings.(18)

However, the real upsurge in human rights activism in Hong Kong was triggered by a more tragic event: the massacre of peaceful demonstrators by the People's Liberation Army in Beijing on June 4, 1989. As a direct and immediate consequence, Hong Kong human rights NGOs exploded with unprecedented energy and vibrancy. NGOs became more deeply immersed in international advocacy, campaigning energetically before UN bodies and playing an instrumental role in lobbying before the Sub-Commission on Human Rights in the summer of 1989, an effort which resulted in a resolution condemning the People's Republic of China for its human rights practices.(19)

B. 1989-1992: The Bill of Rights and Amendments to the Societies Ordinance

In 1990, the UK submitted its Third Periodic Report on Hong Kong to the Human Rights Committee, followed by hearings in New York in April 1991.(20) By now Hong Kong human rights NGOs had become familiar with the international advocacy process, and actively prepared critiques of the government report and attended the hearings. Among the human rights NGOs that either submitted comprehensive briefing papers to the Human Rights Committee, or attended the hearings, or both, were: JUSTICE (the Hong Kong affiliate of the Geneva-based International Commission of Jurists), the United Democrats of Hong Kong, the Hong Kong Human Rights Commission, the Hong Kong Bar Association, the Hong Kong Journalists Association, the Hong Kong Council of Women, Amnesty International and the International League for Human Rights.

In the period between June 1989 and June 1991, Hong Kong NGOs also played a leading role in public debate about a British-backed bill to introduce a Bill of Rights that, as a direct result of the Beijing massacre, had been tabled in the Hong Kong Legislative Council.(21) The Bill of Rights Ordinance, with enthusiastic NGO backing, was enacted on June 6, 1991 and came into effect two days later, to "provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong."(22)

In 1992, the draconian colonial provisions of the pre-1992 Societies Ordinance were superseded, in an attempt to bring the law in line with the Hong Kong Bill of Rights Ordinance, and with the ICCPR. The 1992 Amendments will not survive the July 1, 1997 handover because the Standing Committee of China's National People's Congress (NPC) voted to not adopt them as part of the law of the Hong Kong Special Administrative Region (HKSAR).

Under the 1992 amendments, the NGO registration requirement was abandoned and replaced by a requirement of notification. Organizations were required to inform the Societies Officer(23) in writing of specified particulars within one month of the date of establishment of an organization, or the date that the organization was deemed to be established (Section 5). The notification called for the name of the organization, its objects, the names of its office bearers and the address of its principal place of business and every place or premises that it owns. After notification, the organization was listed on a "list of all societies." Only two restrictions were attached to the notification process: an organization could not be listed under a particular name if another was already listed under that or a similar, confusing or misleading name (Section 9); and notification was required within one month of any change in a society's name, objects, office-bearers or principal place of business (Section 10(1)). Societies were not required to spell out a detailed set of objectives.

Under the 1992 amendments, the Societies Officer was granted only limited powers to make inquiries of a society, or to take action against an organization. For example, the Societies Officer could ask a society for information about itself or its operations only if the request was reasonably related to discharging the functions of the Societies Officer (Section 15(1)). Although the Societies Officer was still empowered to enter a meeting, he could do so only if his entry was reasonably necessary (Sections 31 & 33). If the Societies Officer reasonably believed that the operation or continued operation of a society would be prejudicial to the security of Hong Kong or to public safety or public order, he was obliged to notify the Secretary for Security, and could recommend the publication of a prohibition order in the Gazette (Section 8). After gazetting of the prohibition order, the society was given the opportunity to be heard before any action was taken against it. Only after these procedural safeguards had been effected could a society be de-listed. Any person aggrieved by a decision of the Secretary for Security was able to appeal to the Governor in Council, who could revoke, vary or confirm the decision (Section 8(7)). Under the 1992 amendments, the Governor no longer had the power to dissolve societies.

NGO activity grew in depth and breadth after passage of the 1992 amendments. At the same time, international scrutiny of Hong Kong heightened, with the UN treaty bodies calling for extraordinary hearings on Hong Kong in the light of new human rights concerns generated by the impending transfer of sovereignty. For instance, at the conclusion of the October 1995 hearing on the Fourth Periodic Report under the ICCPR, the Human Rights Committee expressed serious concern about China's willingness to continue submitting periodic reports on Hong Kong and called for a Supplemental Report by the United Kingdom. The Committee held an extraordinary hearing to consider that report in Geneva in October 1996, and concluded by requesting another report to examine human rights in Hong Kong until June 30, 1997, the final day of British sovereignty. That report will necessarily fall due after the reversion, and it is far from certain that there will be a hearing of the Human Rights Committee to consider the report—let alone that China would attend.

Between 1992 and March 1997, nearly a dozen reports have been submitted on behalf of Hong Kong to five UN treaty bodies, each with a corresponding hearing.(24) Hong Kong human rights NGOs have been an indispensable part of the monitoring process,(25) attending hearings and briefing members of the various committees.(26)

The NGO community expanded rapidly during this period, as did receipts of contributions from overseas sources. NGOs stepped up their lobbying and briefing of foreign governments and inter-governmental organizations. Domestic advocacy was also an important part of their work, and many NGOs became more heavily involved in lobbying the executive and legislative branches of the Hong Kong government. Some NGOs worked on judicial proceedings involving human rights issues, such as immigration claims.

The period after Tiananmen brought a huge shift in Hong Kong's political culture. Historic quiescence gave way to an explosion of activism. The heightened political awareness among NGOs coincided with electoral reform and increased enfranchisement.(27) Through organized training, the NGO community grew more familiar with international human rights law. This training in turn helped inform Hong Kong people of their rights, and of the role they could play in ensuring their continued protection. NGOs learned that they could be effective in the international arena. In the final analysis, public concern for human rights was spurred by a lack of trust in China as reversion drew closer. Many people began to pose the unthinkable question: could what happened in Tiananmen Square be re-enacted at Statue Square in downtown Hong Kong after July 1, 1997?

III.NGOs IN HONG KONG TODAY (28)

. Today, a wealth of Hong Kong-based NGOs, many of which are listed under the Societies Ordinance, focus their efforts on the promotion and protection of human rights. These NGOs belong to several discrete yet overlapping categories, all of which may face particular risks and uncertainties as a result of the reversion.

A. Grassroots NGOs

A host of grassroots organizations exist, primarily providing services to the Hong Kong community. Some of these groups perform social work services for the homeless and the aged, and in the area of health. Although most of their work is service-oriented, some engage in both domestic and international advocacy. Leading grassroots NGOs include:

The Society for Community Organisation (SOCO) was established in 1976 to help the poor and disadvantaged, particularly in the area of housing. SOCO combines community organizing with human rights monitoring and education, and publishes occasional reports.
The July 1st Link is an umbrella group created in 1995 by eight Christian NGOs, with the purpose of monitoring issues related to the transfer of sovereignty. The July 1st Link publishes a bi-monthly newsletter, and organizes workshops and conferences.
The Hong Kong Welfare Society provides a wide range of services for families, including family counseling, clinical psychological services, family life education, home help, family aide service, foster care, social work in schools, services for single parent families and services for people suffering mild mental health problems.

A distinguishing characteristic of these groups is that they are comprised almost exclusively of Hong Kong Chinese, who do not hold overseas passports and who do not have the right of abode in any country or territory outside of Hong Kong. Persons who fall into this category are destined to remain in Hong Kong after the change of sovereignty.

B. Multi-Ethnic Advocacy Groups

Often composed of professionals, such as lawyers and members of the Legislative Council (Legco), these groups include some local ethnic Chinese but mostly comprise a mix of foreign nationals. Their membership, especially among ethnic Chinese, may overlap with that of the grassroots groups. These groups, which include the Hong Kong Human Rights Monitor, are few in number and conduct advocacy on a wide range of human rights issues in both domestic and international arenas. To a lesser degree, they also engage in community service. Domestically, they raise issues within the legislative, executive and judicial branches. Internationally, they engage in extensive lobbying and briefing with foreign governments and intergovernmental bodies such as the United Nations (both the treaty- and Charter-based bodies) and the European Union.

C. Other Legally-Oriented Groups

While the multi-ethnic advocacy groups often have a strong legal focus and membership, they are distinct from other NGOs which are explicitly made up of legal professionals. Some of these groups are multi-ethnic, while others are predominantly ethnic Chinese. Their advocacy tends to be both local and international in focus. Among these groups are JUSTICE (the local branch of the Geneva-based International Commission of Jurists), the Hong Kong Bar Association (comprised of Hong Kong barristers), and the Law Society of Hong Kong (comprised of Hong Kong solicitors).(29) All of these groups have been actively involved in community human rights service, as well as in lobbying and briefing the three branches of the Hong Kong government, and, to a degree, UN treaty bodies and other international entities.

D. Expatriate Special Interest Groups

These non-local groups campaign for specific rights, applicable to them in Hong Kong, that are common to the group. They embrace supporters of rights for foreign domestic helpers in Hong Kong and include: United Filipinos in Hong Kong, an umbrella group for more than 20 Filipino organizations;(30) the Mission for Migrant Workers; Friends of Thai in Hong Kong; Helpers for Domestic Helpers; Kaibigan (Friends of Filipino Migrant Workers); and many others comprised mostly of Filipinas. These groups are vulnerable because few of their members have the right of abode, rendering their immigration/visa status precarious, and because their issues sometimes include sensitive points of Hong Kong law and policy.

E. Regionally Focussed Human Rights Groups

Many multi-ethnic Hong Kong-based organizations focus on human rights issues throughout Asia, rather than on Hong Kong issues. They include: the Asian Monitor Resources Centre (AMRC); the Asian Human Rights Commission (AHRC); the Asian Migrant Workers Centre (AMWC); the Asian Domestic Workers Union (ADWU); the Asian Center for the Progress of Peoples; the Asian Regional Exchange for New Alternatives (ARENA); the Asian Pacific Mission for Migrant Filipinos (APMMF); and Documentation for Action Groups in Asia (DAGA).

These groups are in jeopardy, but perhaps less than some others. Most of their members are expatriates, whose immigration status could be compromised. However, that concern is tempered by the fact that the issues these groups tend to concentrate on do not touch as directly on human rights in Hong Kong and are thus likely to be less threatening to the incoming Administration. Other groups that could be seen as "regionally focussed" would include those that advocate independence for Taiwan or Tibet. These groups are at great risk, in that the HKSAR Administration has already announced that they will be banned.

F. International Human Rights NGOs Present in Hong Kong

Both Amnesty International and Human Rights Watch/Asia maintain offices and staff in Hong Kong, and deal with human rights concerns in both China and Hong Kong. The future of these offices is threatened because it is more than likely that they will be deemed "political" organizations. Other international NGOs, including the Lawyers Committee for Human Rights and Article XIX (which deals with freedom of expression issues), maintain active programs on Hong Kong but do not have a permanent physical presence there.

G. Other Hong Kong Special Interest NGOs

A variety of special interest NGOs exist, including: the Hong Kong Journalists Association, which works closely with Article XIX on freedom of expression issues, and the People's Council on Public Housing Policy. Also included is the Asian Resources Group, comprised mostly of Indians and other South Asians, who are longtime residents of Hong Kong who faced the risk of becoming stateless after 1997 because they did not qualify for HKSAR or British passports. (In early 1997, the United Kingdom confirmed that Asians who would otherwise have become stateless would be granted full UK citizenship.) Zuni Icosahedron is one of a number of groups campaigning for rights in the area of culture, while others campaign for language and other similar rights.

H. Women's Groups

A number of women's groups campaign for equal opportunities legislation, freedom from discrimination and a wide range of other rights. They include the Hong Kong Women's Christian Council, Hong Kong Women's Coalition for Equal Opportunities and the Hong Kong Association of Business and Professional Women.

I. Gay and Lesbian Groups

An increasing number of gay and lesbian groups campaign for, inter alia, legislation prohibiting discrimination based on sexual orientation. Some are made up of predominantly local Chinese, others are predominantly expatriate, and others have a mixed local and overseas membership. Among these organizations are the Hong Kong 10% Club, Freemen, Isvara, the Long Yang Club, the Satsanga, Horizons and the Hong Kong Gay Coalition.

J. Refugee Groups

These groups campaign for the internationally recognized rights of refugees, primarily the Vietnamese asylum seekers residing in Hong Kong. They often provide legal representation to asylum seekers in domestic and other tribunals and provide other forms of assistance. They include Refugee Concern and Legal Assistance for Vietnamese Asylum Seekers.

K. Religious Groups

Religious groups with a strong human rights focus include the Justice & Peace Commission of the Hong Kong Catholic Diocese, the Hong Kong Women Christian Council, the Christian Conference on Asia/Urban Rural Mission (CCC-URM), the Diocesan Pastoral Centre for Filipinos, and the Hong Kong Christian Institute.

L. Other Local Groups

A multitude of other local Hong Kong NGOs exist, most of them comprised primarily of ethnic Chinese.(31) Among them are:

The Hong Kong Human Rights Commission, a consortium of 10 NGOs founded in 1988 and representing the interests of labor, women, religion, the poor, communities and students. The Commission focuses on human rights monitoring and education, and has been heavily involved in the monitoring and reporting processes of the UN treaty bodies.
The United Ants, which advocates for the abolition of functional constituencies in the electoral process in Hong Kong;(32)
The University of Democracy, an educational organization established after the Tiananmen Massacre to explore the process of democratization in China. Its goals include the dissemination of democratic ideas through various means to promote democratic education and practices;
The Hong Kong Development and Strategic Research Centre, which aims to enhance public participation in public policy deliberations;
The Hong Kong Temporary Housing Area Joint District Residents Committee, set up by residents of Hong Kong's Temporary Housing Areas (THAs). The Committee is concerned with government policies affecting THAs and the right to adequate housing;
The Professional Teachers Union (PTU) is particularly influential and effective. The wealthiest of the pro-democracy NGOs in Hong Kong, the PTU provides financial and material support to many smaller NGOs.

M. Alliances of NGOs on Specific Issues

Ad hoc alliances of NGOs typically form in response to controversial issues as they arise, and are often short-lived. Such alliances in recent years have included the Joint Alliance of People's Organizations Striving for Democracy (JAPOD); Full Democracy in '95; Joint Action for the Release of Xi Yang (a Hong Kong journalist jailed in China for publishing "state secrets"); and the Hong Kong Alliance for Human Rights. Most at risk after July 1 is the Hong Kong Alliance in Support of Patriotic and Democratic Movement in China, which organized huge public demonstrations in Hong Kong in support of the 1989 democracy movement and sent significant financial and material support to students occupying Tiananmen Square.

IV.THE NEW LEGAL REGIME

The continued operation of Hong Kong human rights NGOs, particularly those such as the Monitor that strongly focus on domestic and international advocacy, is seriously at risk after the return to Chinese sovereignty. The most immediate threat is the erosion of their right to freedom of association as guaranteed by the ICCPR,(33) the Bill of Rights Ordinance and the Basic Law— as well as of the closely related rights of expression and assembly. These rights are directly imperilled by changes to the Societies and Public Order Ordinances that will take effect on July 1. As noted above, the 1992 amendments to the Societies Ordinance are scheduled for repeal at that time.

A. General Framework

In determining the reach of new laws governing freedom of association, the incoming HKSAR Administration was obliged to follow a number of general guidelines. The Basic Law, which will be the PRC-promulgated "mini-constitution" of the newly created Special Administrative Region after July 1, provides, in Article 160, that the laws previously in force in Hong Kong shall be adopted, except for those that the Standing Committee of China's NPC declare to be in contravention of the Basic Law. No criteria are defined for determining whether a pre-1997 Hong Kong law contravenes the Basic Law.

Article 27 of the Basic Law provides:

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

Article 39, meanwhile, sets the standard for defining the scope of freedom of expression and freedom of association protection, providing:

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labor conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

Thus, Article 39 sets a floor—a minimum standard—beneath which the laws of the HKSAR cannot fall in providing protections for fundamental rights such as freedom of expression and association. First, these rights must be protected at least at the level they are protected under the ICCPR as applied to Hong Kong, and no HKSAR Law may contravene the ICCPR. Second, if the rights and freedoms enjoyed by Hong Kong people are to be restricted—and there is nothing in the Basic Law to suggest that there is any need to restrict expression or association or that such restrictions are mandatory—such restriction must be as prescribed by law. Again, this is not a general call for restrictions, but only a guideline to be used to outline the manner and the means by which any restriction, should it be warranted, would be imposed.

All HKSAR laws must incorporate principles of international human rights law, as contained in the ICCPR, and as interpreted in the common law. The Privy Council(34) recently reiterated these principles, which, given the continuation of the common law in the HKSAR, should guide the Legislative Council as it enacts new laws that might tend to restrict freedoms, as well as guide the HKSAR courts as they interpret these laws. InMing Pao Newspapers Ltd v Attorney General (1996),(35) Lord Jauncey recapitulated those principles as follows:

(i) A generous and purposive interpretation must be given to any constitution that entrenches fundamental rights and freedoms to which all persons in a state are to be entitled;

(ii) Three of the essential foundations of a democratic society are freedom of expression, freedom of association and freedom of assembly. When a restriction is imposed on those guaranteed rights, those restrictions must be narrowly interpreted; and

(iii)Any restriction on freedom of association, expression or assembly must be proportionate to the legitimate governmental aims sought to be achieved by the restriction.

Similarly, the European Court of Human Rights has reiterated that any restriction of a fundamental right must not only be narrowly defined and construed, but must also be necessary to achieve the legitimate objectives that are pursued.(36) There must be a rational connection between the restriction and the goal. Furthermore, the restriction must be proportional to important governmental objectives. Thus, if a right is to be restricted, that restriction must impair the enjoyment of the right to a minimal extent, and then only as much as is necessary to achieve the important goal.

Many common law courts in other jurisdictions, in interpreting constitutional documents that protect rights, have adopted similar tests for outlining the scope of permissible restrictions of fundamental rights.(37) For example, the Canadian Supreme Court, in interpreting the Canadian Charter of Rights and Freedoms 1982, requires that if a law restricts a fundamental right, that restriction must be "demonstrably justifiable in a free and democratic society."(38) Furthermore, the restriction must satisfy the tests of rationality, proportionality and minimal impairment.(39) In the United States, expression may be restricted only if there is a "clear and present danger" to justify a "compelling state interest."(40)

B.Article 23 of the Basic Law(41)

Article 23 of the Basic Law has far-reaching implications for, and creates pressing problems for, Hong Kong human rights NGOs. It provides:

The Hong Kong Special Administrative Region 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.

It is important to note that Article 23 of the Basic Law mandates that the HKSAR shall pass these restrictive laws; Article 23 does not itself impose any prohibitions or restrictions. It states merely that the HKSAR must prohibit certain things. The HKSAR itself must decide which laws to pass. In theory, Hong Kong human rights NGOs should have no major problem with the application and interpretation of Article 23 so long as the rule of law is generally upheld. The new government is bound by Article 39 of the Basic Law not to impose new legislation in Hong Kong that is more restrictive of rights than laws currently in place. However, the first significant legislative proposals by the incoming authorities suggest that the rule of law is far from assured in the area of civil rights. Hong Kong NGOs therefore face potentially grave problems, including the imposition of over-broad definitions, interpretations and applications of the terms of Article 23.

C. Definitions, Interpretation and Application of Terms in Article 23

(i) "Treason, Secession, Sedition, Subversion" and "Theft of State Secrets"

It is unclear how the terms "treason, secession, sedition, subversion," and "theft of state secrets" will be defined. The broader the definitions, the greater the likelihood of abuse. The prospects for abuse are considerable, since ultimate interpretation over the definitions lies with the NPC in Beijing, and not with the HKSAR authorities.

The interpretation and application of these terms in China in recent years, in instances where individual freedoms were at stake, is hardly encouraging. For example, on October 30, 1996, the Beijing No. 1 Intermediate People's Court found human rights activist Wang Dan guilty of "conspiring to subvert the government" and sentenced him to 11 years in prison and two years' deprivation of political rights.(42) The October 7, 1996 indictment of Wang alleged that his criminal acts of subversion included accepting funds from organizations "hostile" to China, and "publishing anti-government articles abroad."(43) He was further charged with "colluding" with other dissidents (including Wei Jingsheng) to form discussion groups and to appeal for the rule of law, criticizing the government in articles published abroad, accepting a scholarship at the University of California for self-study in Beijing, and forming a mutual aid group with other dissidents.(44)

In 1994, Xi Yang, a Hong Kong journalist who wrote for the Chinese-language newspaper Ming Pao, was charged with "stealing state financial secrets." His crime was to have acquired and published information related to the PRC's gold reserves. He received a sentence of 12 years in prison.(45) Such interpretations and applications of amorphous terms like "subversion" and "state secrets" do little to engender confidence in the new HKSAR legal system.

(ii) "Local" Versus "Foreign" Organizations

Article 23 calls for a distinction to be drawn between local and foreign organizations. It is unclear which human rights NGOs operate in Hong Kong will be deemed "local" or "of the Region" and which will be deemed "foreign." Unfortunately, there are no definitions of these terms in Article 23. The Societies Ordinance may offer some guidance, although it is unclear that the incoming Administration will look to the ordinance for such definitional assistance.

Section 2(1) of the Societies Ordinance (in both the pre-1992 and the 1992 amended versions), provides the following definitions:

"Society" means any club, company, partnership or association of persons, whatever the nature of objects, to which the provisions of this Ordinance apply.

"Local society" means any society organized and established in Hong Kong, or having its headquarters or chief place of business in Hong Kong, and it includes any society deemed to be established in Hong Kong by virtue of section 4.

Section 4 of the Societies Ordinance provides:

A society shall be deemed to be established in Hong Kong, although it is organized and has its headquarters or chief place of business outside Hong Kong, if any of its office bearers [president, vice-president, secretary, treasurer of the society or branch, or member of the governing body/branch], or members resides in Hong Kong or is present therein, or if any persons in Hong Kong manages or assists in the management of such society or solicits or collects money or subscription in its behalf.

Furthermore, section 4 provides that a society is not a "local society" if and so long as:

(a) It is organized and is operating wholly outside Hong Kong;

(b) No office, place of business, or place of meeting is maintained or used in Hong Kong by such society or by any person in its behalf;

(d) No subscriptions are collected or solicited in Hong Kong by the society or by any person in its behalf.

Under the Societies Ordinance, most of the human rights NGOs discussed above in chapter III are "local." Again, it is not clear whether these definitions will be used when the HKSAR government legislates under Article 23. However, they do provide a sense of what has been in place in Hong Kong since 1949.

(iii)What is a "Political" Organization?

There is no definition of "political" in Article 23. Nor does any other Hong Kong ordinance define the term. To help determine which NGOs will be deemed "political," it is instructive to look at caselaw for precedent, as well as comments that suggest the intentions of the new Hong Kong authorities.

Chief Executive-Designate C.H. Tung has already told a delegation of European Parliament members in March1997 that the Hong Kong Human Rights Monitor would be considered "political." Although Mr Tung's word is not the law, it is a strong indication of the thinking of the incoming Administration. The HKSAR authorities may be tempted to rely on a case from the English Court of Appeal, decided December 17, 1996, and may choose to misinterpret it out of the very particular context in which it arose. InR v Radio Authority, ex parte Bull and Another, Lord Woolf MR ruled that Amnesty International is a "political organization" that engages in political activities.(46) Specifically, the court held that Amnesty International is political because it urges countries to change their laws or policies to conform with the human rights standards embodied in the UN Charter. Lord Woolf ruled that: "To campaign to change those laws and policies so that they do comply with the Charter is political even though it is also commendable."

What this decision does not take into account is the legal obligation of states parties to human rights treaties to bring their laws and practices into compliance with treaty provisions. NGOs which advocate this are making legal, not political, arguments. As Amnesty International argued inRadio Authority: "[A]n object will not be political if what is being promoted is the observance of human rights, since these are regarded as being fundamental in international law and recognized by art. 55 of the United Nations Charter . . . . [T]o promote their observance, even though it involves having to change the law or change the policies of governments, is merely to promote observance of the law." This position is consistent with the caselaw in many countries, and draws a more natural distinction between the activities of political parties and their appendages, and those of human rights organizations that base their work on legal principles.

If, however, the Hong Kong authorities were to treat domestic human rights NGOs as "political" organizations, this would bar any "ties" with foreign "political" organizations. Under this most sweeping interpretation, the term could apply, for example, to Amnesty International, Human Rights Watch and the Lawyers Committee. It could also apply to the Association of the Bar of the City of New York, which conducts advocacy for legal change, and has considered entering into a partnership arrangement with the Bar Association of Hong Kong. By the same token, it might logically apply to the United Nations and to all of its instrumentalities that have competence over human rights matters. The function of these bodies includes advocating the change of law and practice by governments to conform with internationally recognized human rights norms, and they could therefore be deemed political.

(iv) What are "Ties"?

Article 23 calls for legislation banning "ties" between local and foreign political organizations. But here again the term is not defined. Lian Xi is the term used in the Chinese version of the Basic Law, and its plain meaning is "contacts" in a general and broad sense. Even a conservative definition of "ties" can mean a variety of things, including direct or indirect communication, receipt or solicitation of financial assistance, influence, formalized contractual relationships or membership.

(v) "Ties Between Local Political Organizations and Foreign Organizations": The Case of the Hong Kong Human Rights Monitor

The proscription on "ties between local political organizations and foreign organizations," if not narrowly construed, is likely to have a crippling impact upon many Hong Kong NGOs. It is instructive to examine how a single organization may be affected—the Hong Kong Human Rights Monitor. Under Article 23, the Monitor, like most of Hong Kong's human rights NGOs, will likely be classified as a "political organization." It is also clearly a "local organization." Thus, the Monitor would be required to sever its "ties" with overseas political organizations. If the definition of "ties" is a broad one, a wide range of the Monitor's established and routine activities would be restricted or made illegal.(47) These would include:

Ties—including briefing, lobbying, solicitation of funds, etc.—with inter- governmental organizations. Ties would be barred with such entities as the United Nations, the European Union and the British Commonwealth;
Ties with the legislative and executive branches of all overseas governments. The Monitor has engaged in briefing missions to the US Congress and the parliaments of Australia and the United Kingdom, as well as to the US Department of State and the White House. All these activities could fall within the proscriptions of Article 23.
Ties with Monitor members overseas, whether or not they are Hong Kong residents. Although Article 23 bans ties between local and overseas politicalorganizations, this could be read to include overseas individuals who are considered "political," since the apparent intent of Article 23 is to protect China from outside destabilizing forces, whether from individuals or groups.
Ties with overseas funders. The Monitor has received substantial grants from overseas funders, including the NED, the John Merck Foundation and the European Union. Such funding is indispensable if the Monitor is to continue its work. The NED and the European Union could certainly be considered overseas political organizations. Although it is less clear that US private foundations would be defined as "political," this is certainly possible in view of public statements by the incoming Administration about undue overseas influence in Hong Kong.
Ties with overseas NGOs, including groups focussing on Hong Kong issues, such as the Washington, D.C.-based Friends of Hong Kong and Macau and the Association of Hong Kong Chinese in the United States. Although there may be no formal institutionalized "ties" between these organizations and the Monitor (or other Hong Kong NGOs), no such "ties" of any sort will be permitted if these overseas groups are deemed to be political organizations.
Ties with UN Charter-based bodies, such as the Commission on Human Rights. UN Charter-based bodies and special procedures, including the Special Rapporteurs and Working Groups appointed by the Commission, are not unlikely to be considered "political" within the meaning of Article 23. The member states of the Commission on Human Rights advance their own national positions, which either favor the furtherance of change in the human rights law and practices of other member states, or defend the maintenance of the human rights status quo in their own or other states. The Monitor would not be permitted to create or maintain any ties with the Commission or with any other UN body—such as the Economic and Social Council—that was deemed a political organization.
Internet links with overseas organizations. The Monitor maintains a web page on the Internet.(48) This is "linked" to the sites of several organizations and can potentially be "linked" to the Internet sites of overseas organizations. Given any reading of Article 23, any "links" between the Monitor website and that of an overseas political organization would be forbidden. Furthermore, Article 23 might draw within its scope any links between the Monitor's Internet connection and any local organization that has "ties" (through the Internet or otherwise) to an overseas political organization.

(vi) Other Results of Interpretation and Application of Article 23

The imposition of legislation enacted under Article 23, if not narrowly tailored, would lead to a number of consequences that can only be described as absurd. For example:

Amnesty International (Hong Kong) would not be allowed to receive funding from the International Secretariat of Amnesty International in London, because both organizations would be deemed political, with the former being "local" and the latter "foreign." In this case, the tie is an institutional one, and could be banned under any reading of Article 23. The same restrictions would apply in the case of Human Rights Watch. The Hong Kong office of Human Rights Watch/Asia would be prohibited from maintaining "ties" with its parent organization in New York. Again, the former group is local, the latter is overseas, and both would be deemed political.
The Bar Association and Law Society of Hong Kong would be prohibited from maintaining a relationship with the Bar Association of the City of New York (New York Bar). In 1995, the Committee on International Human Rights of the New York Bar sent a mission to Hong Kong to inquire into the future of the justice system and the rule of law after July 1, 1997, and published a report containing its findings and recommendations.(49) The report, after acknowledging that "the rule of law in Hong Kong will require careful world-wide monitoring," proposed an "on-going relationship" in the form of a "special committee of the Association to deal with matters of mutual interest to the New York and Hong Kong legal establishments."(50) This would, among other things, "hold joint conferences, perhaps biannually, alternately in Hong Kong and New York" to discuss matters such as those raised in the report. Although the "leaders of both the Hong Kong Bar Association and the Law Society of Hong Kong expressed great enthusiasm when this proposal was tentatively advanced," such enthusiasm may be misplaced, since it is entirely possible that Article 23 will be broadly interpreted to proscribe such a relationship.

V. THE CONSULTATION DOCUMENT ON CIVIL LIBERTIES AND SOCIAL ORDER

The worst fears of Hong Kong's human rights NGOs appeared to be realized in the early weeks of 1997, with the reversion still several months away. The first warning signs came as early as January 20, when the legal sub-group of the Beijing-appointed Preparatory Committee(51) adopted key recommendations of the now defunct Preliminary Working Committee to abolish articles 2(3), 3, and 4 of the Bill of Rights Ordinance, which stipulated that no law enacted before or after it could supersede or violate it. The sub-group ruled that these provisions contravened the Basic Law, and that only the Basic Law had the power to override other legislation. The sub-group also recommended that the future HKSAR authorities reinstate the original versions of the Societies Ordinance and the Public Order Ordinance,(52) repealing amendments that had been enacted in 1992 and 1995 respectively.

On February 23, the National People's Congress resolved that the 1992 amendments to the Societies Ordinance would not be adopted as the laws of the HKSAR, since they contravened the Basic Law. The NPC has never offered any explanation, either in its resolution or later, of why this was the case. As a result, after July 1, the new HKSAR authorities were left with two choices: either to enact, or to refrain from enacting, new legislation governing NGOs.(53) However, any new legislation would be obliged to comply with the international human rights protections embodied in Article 27 and Article 39 of the Basic Law.

In the weeks following the NPC resolution, members of the legal profession and human rights communities, both in Hong Kong and internationally, voiced fears that the resolution had cast serious doubt on prospects for the rule of law and the "high degree of autonomy" promised to Hong Kong by the 1984 Joint Declaration. Many made public statements pointing out that the laws already in force made adequate provision for the maintenance of public order and requested an explanation of how existing ordinances contravened the Basic Law. No explanation was given. In addition, there were widespread calls for the office of Chief Executive-designate C.H. Tung to open up a transparent consultation process that would allow the new authorities to gauge public attitudes to the proposal for new legislation on freedom of association and assembly.

Mr. Tung sought to reassure the public that there was no threat to civil liberities in Hong Kong after July 1, but argued that, "We have to seek the right balance between maintaining public order and complying with the international human rights covenants."(54) During this period press reports revealed that the legal unit of Mr. Tung's office had studied how NGOs, as well as demonstrations, were regulated in other countries; the unit advised the Chief Executive-designate that almost all Asian countries, and some Western ones, required protesters to get approval from the authorities for demonstrations.(55) This caused alarm in the Hong Kong human rights community as it suggested that the new authorities were looking not to international human rights standards, but rather to national legislation that did not necessarily embrace such international legal principles.(56)

On April 9, the Office of the Chief Executive-designate issued a "Consultation Document on Civil Liberties and Social Order." (See appendix for exerpts.) This proposed amending provisions of the Public Order Ordinance dealing with public demonstrations and provisions of the Societies Ordinance governing the establishment and operation of associations and political parties. The public was given just three weeks to offer its views on the 36-page document.

Despite this unreasonably tight deadline, the principal institutions and representative individuals in Hong Kong's legal and NGO communities submitted detailed comments to the Chief Executive-designate, as did a number of international organizations.(57) Virtually without exception, these responses condemned the proposals as placing unwarranted restrictions on the rights of freedom of assembly and association, and depicted them as a thinly veiled attempt to stifle the nascent democracy and human rights movement in Hong Kong.

The changes proposed in Mr. Tung's Consultation Document would have amounted to a serious blow to human rights NGOs in Hong Kong that rely upon support from overseas entities. The Consultation Document, which proposed that the Chief Executive rather than the courts act as the final arbiter on matters affecting civil liberties, recommended mandatory registration for all NGOs with the police. The police were to be granted sweeping powers, including the authority to deny an application for registration in the interests of national security, public safety or public order. Furthermore, the police were to be able to deny registration to an NGO engaging in "political activities" or which had "ties" to foreign organizations, such as accepting financial contributions from foreign groups or "aliens" or allowing them to influence its activities. All "political organizations" would be prohibited from soliciting or accepting financial assistance from overseas.

The Consultation Document defined "political organizations" sweepingly, as: "those societies which directly participate in political activities relating to government institutions and comment on public affairs as their main objectives." Domestically, as feared, this all-encompassing pronouncement would capture groups such as Amnesty International (Hong Kong), Human Rights Watch/Asia, the Hong Kong Human Rights Monitor, the United Ants and others. Internationally, as feared, the proposed legislation would encompass many organizations and institutions, such as the parent bodies of Amnesty International and Human Rights Watch, as well as the United Nations, the European Union and foreign governmental bodies. It would also have captured the Hong Kong Bar Association and Law Society, and other professional groups with members in the Legislative Council, as well as other "alien" members who paid annual subscriptions. These grossly overreaching proposals attracted widespread condemnation and even ridicule.

The incoming HKSAR Administration sought to justify its proposals in three ways. Echoing earlier statements by Mr. Tung, officials stated that the new legislation would serve to "strike the balance between civil liberties and social stability"; that the new laws were required in the interests of "national security"; and that steps must be taken "to prevent Hong Kong from being used for political activities against China." These claims were not supported by any facts or arguments sufficient to overcome the high hurdle of necessity, rationality and proportionality that must be shown in order to justify, under international human rights law, legislation that would restrict fundamental rights such as freedom of association, assembly or expression.

Respondents to the Consultation Document highlighted five principal concerns:

(i) the proposed changes were unnecessary, and the claim that they were required to harmonize Hong Kong's ordinances with the Basic Law had not been substantiated;

(ii) the proposed amendments were based on a generally flawed interpretation of the ICCPR;(58)

(iii)proposed amendments to the Societies Ordinance, by reinstating a mandatory registration system for NGOs and limiting contact with foreign political organizations, would subject the exercise of the right of freedom of association to prior government approval, in violation of Article 22 of the ICCPR. Under the 1992 amendments of the ordinance, such groups were merely required to notify the government of their existence. The amendments announced by the Chief Executive- designate would have required the Societies Officer, in consultation with the Secretary of Security, to determine whether or not the purposes or activities of a group would pose a threat to "national security" before allowing them register. There was also widespread concern that the ultimate power to "confirm, vary or reverse" a decision made by the Societies Officer would rest with the Chief Executive in Council, with no provision for judicial review.

(iv) proposed changes to the Public Order Ordinance, subjecting peaceful demonstrations to prior police approval, would be in breach of Article 21 of the ICCPR, which guarantees the right to freedom of assembly. Respondents to the consultation document pointed out that a proposed requirement for the Commisioner of Police to issue a "notice of no objection" to a demonstration was tantamount to a permit system. The legislation proposed by Mr. Tung would also permit the Commissioner of Police to refuse to allow a demonstration if he "reasonably considers" that a threat to "national security" exists.

(v) the concept of "national security," cited in the Consultation Document as grounds for restricting peaceful demonstrations and the existence and activities of NGOs, was defined much too broadly and could be used to restrict otherwise lawful participation in public affairs. "National security" is frequently cited by authorities in the PRC as a reason for imprisoning persons for the peaceful expression of their political views. The future leaders of Hong Kong now proposed to define "national security" as "the safeguarding of the territorial integrity and the independence of the People's Republic of China." This definition conflicts sharply with the consensus of a number of eminent international jurists, as expressed in the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, which stipulate that national security can be invoked only in those situations in which the existence of a nation or its territorial integrity or political independence isendangered by force or by threat of force.

On May 15, 1997, the office of the Chief Executive-Designate announced eleven revisions to the original proposals set forth in the Consultation Document, claiming that the new authorities had "considered public opinions genuinely and made the amendments."(59) The revisions were submitted to the Beijing-appointed Provisional Legislature on May 17. Contrary to the expectations of most observers, the revisions did represent a substantial change from the Consultation Document. The definition of "political organization" was narrowed to include only organizations which put up candidates for election to public office. The ban on financial assistance from "aliens" or from international organizations was dropped, so that it was limited in effect to a ban mainly on foreign political organizations funding political parties in Hong Kong. Approval would still have to besought for demonstrations, but if no response was received from the police within a specified time, approval would be deemed to have been granted—very much as at present. On the negative side, mandatory registration of associations remains, as does "national security" as a ground for refusing registration or for banning a demonstration.

Much will depend now on the spirit in which the new changes are implemented. The new HKSAR administration does not speak with one voice peaceful expression of their political views. The future leadon this. Some senior officials have made it clear to members of the Hong Kong Human Rights Monitor that they want to see as little change from the present law and practice as possible. Others, including Mr. Tung himself, show an alarming lack of understanding of legal principles in their public pronouncements.

It is now clear that the incoming administration does have some sensitivity to public opinion. Faced with the threat of draconian restrictions to freedom of association and assembly, the local and international communities spoke out forcefully, and to some degree their criticisms were heard. This episode has been deeply instructive. It has shown the essential need for Hong Kong human rights NGOs and their supporters, both at home and internationally, to continue to mobilize effectively for the other major battles which surely lie just ahead.

VI.RECOMMENDATIONS

The Lawyers Committee for Human Rights and the Hong Kong Human Rights Monitor make the following recommendations:

A. TO THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA

· The Chinese government should accede immediately to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and assume full obligations under these treaties with respect to Hong Kong, including the reporting requirements. Until this happens, the Chinese government should devise satisfactory alternative mechanisms that will allow the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and other relevant UN treaty bodies to continue receiving periodic reports on human rights in Hong Kong.

B. TO THE HONG KONG SPECIAL ADMINISTRATIVE REGION (HKSAR) AUTHORITIES

· As an important indicator of the incoming authorities' commitment to the rule of law and Hong Kong's standing as an international city, they should encourage local and international human rights organizations to maintain and develop their activities in Hong Kong and build relationships with their counterpart organizations sharing similar goals outside Hong Kong. Such relationships should include the right to seek and receive foreign funding.

· Any legislation to be enacted pursuant to Article 23 of the Basic Law should comply fully with the provisions of the International Covenant on Civil and Political Rights (ICCPR).

Any future legislation that implicates treaty obligations under the ICCPR or other human rights treaties should be submitted to an open and transparent process of public consultation which grants adequate time for the presentation, review and incorporation of qualified legal commentary, considering relevant international human rights standards.
The HKSAR authorities should introduce no legislation with retroactive effect, and should explicitly affirm their adherence to Article 15 of the ICCPR, which enshrines the principle ofnullum crimen sine lege.

C. TO THE UNITED NATIONS

The Human Rights Committee should take the first available opportunity to re- emphasize the continued obligation of the HKSAR and PRC authorities to uphold the provisions of the ICCPR in their future legislation and practice in Hong Kong after July 1, 1997, and should continue to stress the need for adequate reporting arrangements that will allow for the continued submission of periodic reports on human rights in Hong Kong under Article 40 of the ICCPR.
The Human Rights Committee and other relevant UN treaty bodies should take every available opportunity to emphasize the importance of freedom of association, assembly and expression for NGOs in Hong Kong following the transfer of sovereignty. Whichever entity takes responsibility for future periodic reporting to the Human Rights Committee—whether the Chinese government, the HKSAR authorities or some other mechanism yet to be determined—should be encouraged to consult actively with local NGOs in preparing its reports.
The Human Rights Committee should continue actively to seek out opportunities to familiarize itself with the situation of human rights in Hong Kong after July 1, 1997, including continued on-site fact-finding visits.
The High Commissioner for Human Rights should establish a critical dialogue with the PRC and HKSAR authorities with a view to securing respect for all human rights, and ensuring that the recommendations and suggestions previously made by UN human rights bodies are given effect. At the earliest possible opportunity, the High Commissioner should visit Hong Kong to familiarize herself with the human rights situation.
The Special Rapporteurs and Working Groups appointed by the Commission on Human Rights, of which China is a member, should sensitize themselves to alleged violations in Hong Kong of rights relevant to their mandates. Of particular relevance to Hong Kong are the Special Rapporteur on Freedom of Opinion and Expression, whose mandate includes the right to receive information, and the Special Rapporteur on the Independence of Judges and Lawyers, who is mandated to report on the harassment of judges and lawyers.

D. TO OTHER GOVERNMENTS

The international community, including the US Administration, should emphasize the importance of the PRC and HKSAR authorities adhering to their treaty obligations under the ICCPR, other international human rights treaties, and the Sino- British Joint Declaration on Hong Kong, and should support the efforts of the Human Rights Committee and other treaty bodies to monitor future human rights developments in Hong Kong.
The international community, including the U.S. Administration, should issue public statements condemning key provisions of legislation due to be enacted on July 1, 1997, drawing attention to the fact that the proposed restrictions on freedom of association and assembly are in clear violation of international human rights law and invoke definitions of "national security" which have no basis in international law.
The international community, including the U.S. Administration, should encourage non-governmental organizations, bar associations, legal professionals and others to engage in active exchange and cooperation with counterpart organizations in Hong Kong.

E. TO THE US LEGAL PROFESSION

· State and local bar associations in the United States, and other representative bodies of the legal profession, should seek out opportunities to promote active exchange and cooperation with legal organizations in Hong Kong, develop joint efforts to monitor the future compliance of the PRC and HKSAR with their international treaty obligations, and design programs to further knowledge and awareness of international human rights law in the Hong Kong legal and non-governmental human rights communities.

APPENDIX I:

CONSULTATION DOCUMENT ON CIVIL LIBERTIES AND SOCIAL ORDER

(selected extracts)

Chief Executive's Office, Hong Kong Special Administrative Region, People's Republic of China, April 1997

²²²

CHAPTER TWO: BACKGROUND

The Basic Law

2.1 The continued protection of human rights in the HKSAR is guaranteed under the Basic Law. Article 27 provides for the freedom, among others, of association of assembly, of procession and of demonstration. Under Article 39, the provisions of the ICCPR as applied to Hong Kong are guaranteed to remain in force and shall be implemented through the laws of the HKSAR. The texts of the two Articles are produced below:

Article 27

Article 39

The provisions of the ICCPR, the International Covenant on Economic, Social and Cultural Rights, and international labor conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.

The rights and freedoms enjoyed by HK residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

The ICCPR

2.2 The ICCPR is an important component in the framework of human rights protection in Hong Kong. In 1976, the British Government ratified the ICCPR in respect of the United Kingdom and its dependent territories, including Hong Kong, subject to certain reservations and declarations. Articles 21 and 22 of the ICCPR, which govern the right to freedom of peaceful assembly and freedom of association, are relevant to the present consideration, and are reproduced below:

Article 21

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, the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22 (Extract)

Everyone shall have the right of freedom of association with others, including the right to form and join trade unions for the protection of his interests.
No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

2.3 Like any other international covenants, the ICCPR is couched in general terms so that the principles can be applied universally. There is considerable flexibility for individual signatories regarding the extent to which, and the means by which, the ICCPR provisions are to be implemented, having regard to the social, economic and political situations of each territory.

2.4 The ICCPR recognizes at the outset that rights and freedoms are not absolute. They may be restricted subject to the provisions in the ICCPR. Specifically, Articles 21 and 22 of the ICCPR allow restrictions to be imposed in conformity with the law and necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

The Hong Kong Bill of Rights Ordinance (Cap 383)

2.5 Until 1991, the provisions of the ICCPR were implemented in Hong Kong through a combination of common law, local legislation and administrative measures. The Hong Kong Bill of Rights Ordinance (BORO) was enacted on June 8, 1991. The BORO gives effect in local law specifically to the provisions of the ICCPR as applied to Hong Kong. Following the enactment of BORO, 38 amendment ordinances or subsidiary legislation were introduced, including amendments to the SO and POO.

2.6 The Standing Committee of the NPC decided that three sections(60) of BORO were in contravention of the Basic Law and should not be adopted as the laws of the HKSAR. This relates only to the debate on whether BORO has an overriding status above the Basic Law, but does not affect the rights and freedoms enjoyed by the people of Hong Kong as guaranteed in the ICCPR.

2.7 Article 8 of the Basic Law guarantees the continued application of the common law system in the HKSAR. An established common law principle is that subsequent law will prevail over previous ones. As such, all pre-existing legislation before the commencement of BORO have been repealed to the extent of their inconsistency with BORO. In addition, Article 39 of the Basic Law guarantees the continued application of the provisions of the ICCPR, with which future legislation must be consistent.

2.8 Thus the decision of the Standing Committee of the NPC to repeal the three sections of BORO will not lead to any legal vacuum, nor will individual rights and freedoms be diluted. It is therefore not necessary to enact laws to replace the repealed sections.

CHAPTER THREE: IN PERSPECTIVE

Civil liberties

3.1 Hong Kong has become a free society with legally protected rights. There is freedom of speech and a free press. People enjoy freedom of assembly and freedom of association. There is also freedom of movement and religion.

3.2 As a community, we take great pride in the fact that, to a large extent, people of Hong Kong have exercised their rights and freedoms in a sensible and responsible manner. We are also remarkably accommodating of different viewpoints, and tolerant of occasional aberrations from what is widely regarded as acceptable social behavior.

3.3 Nonetheless, the fact remains that the public were concerned when protesters intruded into a foreign consulate against established international protocol; when demonstrators blocked the traffic in the heart of the business center to voice their grievances; and when petitioners besiege commercial premises, disrupting the work of the offices there, etc. Incidents such as these beg the question as to whether we should not, at the same time as the discussion on individual rights and freedoms gets underway, re-focus the community on the "restrictions" which the ICCPR places on the rights under Articles 21 and 22.

Social stability

3.4 Hong Kong has enjoyed remarkable social stability, which is fundamental to the economic success of the territory over the years. Stability is indeed the bedrock of prosperity. Having had both for a very long time, it is easy to forget that being a small and open economy, Hong Kong is extremely vulnerable to external forces. As a community, we must ensure that there are sufficient safeguards in our system to maintain law and order at all times, and to react to unforeseen circumstances swiftly and effectively.

3.5 The rights and freedoms espoused in the ICCPR are to be respected, but they are not absolute. They have to be balanced against a host of considerations, such as national security, public safety and public order. Furthermore, one must not trample on other people's rights and freedoms in exercising one's rights and freedoms.

The SARG's Commitment

3.6 As Hong Kong moves away from British rule to the high degree of autonomy promised in the Basic Law, it is time to reflect on how we want the Hong Kong society to develop. The HKSAR Government is committed to the continued protection of human rights and personal freedoms as provided for in the Basic Law and in the international covenants which are applicable to Hong Kong. We are also determined to uphold the rule of law, and maintain the institutions which underline the success of Hong Kong over the years.

3.7 However, we must also strike a balance between civil liberties and social stability, personal rights and social obligations, individual interests and the common good. Within the generality of this commitment, we seek to establish broad consensus among the people of Hong Kong as to where the balance should lie.

Basic Principles

3.8 In reviewing the SO and the POO, we have adopted the following guiding principles:

(a) The amendments must be consistent with the Basic Law and the ICCPR as they are applied to Hong Kong;

(b) The protection of human rights must not be compromised, nor should social stability be put to unnecessary risk, having regard to social and political development in the HKSAR; and

(c) A clear message should be sent to the people of Hong Kong and the international community that the rule of law will prevail in Hong Kong, and that Hong Kong will remain a free, peaceful and responsible society.

CHAPTER FOUR: SOCIETIES ORDINANCE

The 1992 Amendments

4.1 The Societies Ordinance was amended in July 1992 with a total of 32 amendments and 10 consequential amendments.

4.2 The two amendments which have created the most controversy are:

(a) removal of the provision to refuse to register a society which is connected with any political group established outside Hong Kong; and

(b) replacement of the registration system with a notification system.

Foreign connections

4.3 Article 23 of the Basic Law(61) prohibits political organizations or bodies in the HKSAR from establishing ties with foreign political organizations or bodies. This provision has been made on the basis of the terms of the Societies Ordinance before its amendments and is aimed at preventing societies in Hong Kong from being controlled by foreign political forces. Such restriction is not unreasonable and is necessary for national security. Restrictions on the political activities of aliens is acceptable by international standards.(62)

4.4 Hong Kong is an international cosmopolitan city. Coupled with freedom of movement both in and out, Hong Kong is open to influences and opinions from different directions. Indeed, we attach importance to developing and international outlook among the people of Hong Kong, and in building social, economic and cultural ties with other countries. This is essential to our economic growth. On the other hand, we must also take steps to prevent Hong Kong from being used for political activities against China. This has been a long-standing policy of the Hong Kong Government. This policy should be maintained after the establishment of the HKSAR.

4.5 It should be noted that Article 23 of the Basic Law does not prohibit the setting up of political organizations or bodies in the HKSAR. Article 23 only prohibits these organizations from establishing ties with foreign political organizations or bodies. It will be difficult to come up with a precise, or exhaustive definition of "political organizations or bodies." They were not defined in previous versions of the Societies Ordinance either.

4.6 However, for the sake of clarity and for the purposes of this Ordinance, we propose to define "political organizations" as those societies which directly participate in political activities relating to government institutions and comment on public affairs as their main objective. In other words, political parties taking part in elections to the three tiers of government are all political organizations. However, these do not include organizations which participate in the elections to functional constituencies, as their primary objective relates to the development of their own professions, but not participation in elections.

4.7 To prevent foreign political forces from influencing or controlling political societies on Hong Kong, we propose to prohibit political organizations or bodies in Hong Kong from establishing the following ties with foreign countries:

(a) soliciting or accepting financial assistance or loans of any kind, directly or indirectly, from aliens and foreign organizations or direct or indirect affiliation with foreign political organizations;

(b) any of the society's policies being determined by or at the suggestion of or in collaboration with foreign political organizations; or

(c) the management or the decision making process of the society being controlled, directed, dictated, influenced or participated directly or indirectly by foreign political organizations.

4.8 Foreign political organizations or bodies will be defined as:

(a) a foreign government or a political subdivision of a foreign government; or

(b) an instrumentality of a foreign government or a political subdivision of the instrumentality; or

(d) an international political organization.

For the purposes of the Societies Ordinance, a reference to an alien, a foreign organization and a foreign political organization also applies to a person resident in Taiwan and an organization or political organization formed or based in Taiwan, respectively.

Notification

4.9 The 1992 Amendment Ordinance replaced the registration system with one of notification. As a fallback against any abuse, the Amendment Ordinance empowers the Secretary for Security to prohibit the operation of a society if he considers it necessary in the interests of security, public safety and public order.

4.10 Without a registration system, it will be more difficult for the Societies Officer to obtain additional information where there are doubts as to whether a society should be allowed to operate in Hong Kong. The likelihood of omission and non-enforcement of the requirement is also higher.

4.11 On the other hand, we do not see any impediment to freedom of association by re- introducing the registration system. The procedures for registration are simple and therefore should not discourage people from forming societies if there is a genuine reason to do so. Furthermore, any restriction to registration must be in compliance with Article 22 of the ICCPR.

Proposed Amendments

4.12 On the basis of the foregoing considerations, we propose the following amendments to the Societies Ordinance:

(a) to re-introduce registration of societies, but restricting the grounds for refusal of registrations to those which are provided for in the ICCPR, namely national security, public safety, public order, protection of public health or morals, and protection of the rights and freedoms of others;

(b) to include a provision which prohibits societies from establishing ties with foreign political organizations or bodies. "Political organizations" should be defined as set out in paragraph 4.6 above. Societies breaching the Ordinance are liable to refusal for or cancellation of registration. As regard "foreign ties" and "foreign political organizations," they should be defined as suggested in paragraphs 4.7 and 4.8 above;

(c) all societies which have been formed and are applying for registration may operate until their applications for registration are rejected by the Societies Officer on the grounds listed in (a) or (b) above; and

(d) similarly, as a transitional arrangement, societies which have been formed and duly notified to the authorities before the commencement of the proposed amending Ordinance will be deemed to have been registered. The Secretary for Security may, on the grounds listed in (a) or (b) above, prohibit the continued operation of the societies concerned, but must duly notify them.

Annex A sets out the previous versions of the relevant sections of the Societies Ordinance and our present proposal.

4.13 In line with paragraph 4.12 (b) above, Part XIIIA of the Companies Ordinance (Cap 32), which provides for the evasion of the Societies Ordinance, should be amended so that when the Registrar suspects that an organization is registered under the Companies Ordinance because that organization does not comply with the restrictions on ties with foreign political organizations, the Chief Executive in Council, if satisfied that the suspicion is justified, will have powers to order the Registrar to refuse registration of the company or to order the company to be struck off.

CHAPTER FIVE: PUBLIC ORDER ORDINANCE

The 1995 Amendments

5.1 Part III of the Public Order Ordinance was amended in July 1995 to update the provisions dealing with public meetinging ties n� 7� m�$n�So�So� Ív ��u ��E��&�6jh��V�� u<�l��ط�D$reasons.

5.3 Under the existing notification system, the organizer of a public procession must notify the Commissioner of Police at least seven days before the procession takes place. The Commissioner has the power to prohibit or impose conditions on notified public processions. It is also a criminal offense to publicize an intended public procession which has not been notified and to knowingly participate in a public procession not previously notified without lawful authority or reasonable excuse.

Present Considerations

5.4 There is a need to strike a balance between personal freedoms and social stability. We must ensure, on the one hand, that people of Hong Kong are not deterred from organizing or participating in public processions because of elaborate administrative controls and requirements. On the other hand, the Commissioner of Police must be given sufficient time and information to assess thoroughly the implications of any event from the point of view of national security, public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others.

Proposed Amendments

5.5 On the basis of the foregoing considerations, we propose to introduce the following modifications to the present system in respect of public processions:

(a) in normal circumstances, the Commissioner of Police must be notified of a public procession at least seven days before the procession. The Commissioner of Police must reply, stating clearly whether he has any objection to, and whether he will impose conditions on, the procession;

(b) in exceptional circumstances, the Commissioner of Police may accept shorter notices which, however, must not be less than 48 hours prior to the procession.

5.6 Under this proposal, public processions can be held as scheduled only after the Commissioner of Police has issued a "Notice of No Objection." The commissioner must give a clear reply no later than 48 hours before the procession so that the organizers will know clearly of the procession can take place as scheduled and whether any conditions have been imposed. This will give the organizers a fair degree of certainty in making arrangements for the processions by balancing different considerations. This will in turn facilitate the smooth running of the processions.

5.7 In case the Commissioner of Police objects to the procession, he must similarly inform the organizers, with reasons for objection, no later than 48 hours before the scheduled procession. His reasons for objection must comply with the provisions of Article 21 of the ICCPR. Should the organizers be aggrieved by the Commissioner's decision, they may appeal to an independent appeal board.

5.8 The Commissioner of Police may, in exceptional cases, accept notices of less than seven days. But such notices may in no case be less than 48 hours. This is to give the Commissioner of Police sufficient time in assessing the implications of any proposed processions. In case the Commissioner deems it necessary to impose conditions on the processions, the organizers will also have sufficient time to make corresponding arrangements for the compliance of such conditions. Annex B sets out the previous versions of the relevant sections of the Public Order Ordinance and our proposal.

APPENDIX II

RESPONSES TO THE CONSULTATION DOCUMENT ON CIVIL LIBERTIES AND SOCIAL ORDER

A. RESPONSE BY HONG KONG HUMAN RIGHTS MONITOR

1. This submission has been prepared in response to the document "Civil Liberties and Social Order" issued by the Chief Executive's Office. In preparing this response, Human Rights Monitor has taken account of comments by staff of the Chief Executive's Office at a meeting with the Human Rights Monitor and Amnesty International Representatives on April 19, 1997.

Preliminary Observations

The NPC decision to disallow the existing laws:

2. Paragraph 1.1. of the document states that on 23 February, 1997 the Standing Committee of the National People's Congress resolved under Article 160 of the Basic Law that "major amendments" to the Societies Ordinance and Public Order Ordinance introduced in 1992 and 1995 should not be adopted as laws of the Hong Kong Special Administrative Region.

3. The document does not enter into the question of why these laws have been disallowed under Article 160 of the Basic Law. Article 160 states that the laws previously in force in Hong Kong shall be adopted except for those which the Standing Committee of the National People's Congress declares to be in contravention of the Basic Law. It is quite unclear on what basis the existing Public Order Ordinance and Societies Ordinance can be said to be in breach of the Basic Law. We do not believe that any provision of the Basic Law is breached by either of these laws in their existing form and the Chief Executive's office has confirmed that they are unable to identify any such breach.

4. As para. 2.7 of the document points out, Article 8 of the Basic Law guarantees the continued application of the common law system in the HKSAR. Under the common law system a decision by a decision making body which is irrational or perverse is a nullity. No matter how wide the powers given to a body by a statute those powers must be exercised rationally or the exercise of power is invalid. It is our view that the purported disallowance of these two ordinances as being inconsistent with the Basic Law, but without saying why, is arguably irrational and a nullity and that therefore on 1 July 1997 the Ordinances will remain part of the law of Hong Kong. It should be borne in mind that while under Article 158 of the Basic Law the power of interpretation of the Basic Law is vested in the Standing Committee of the People's National Congress, under the same article the Hong Kong courts are to be authorised to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the region. Public order and the law relating to Hong Kong societies are obviously within the limits of autonomy of the region.

5. It follows that in our view there will be no legal vacuum on 1 July. There is therefore no urgency about any new legislation in these important and sensitive areas.

6. However, the purported declaration by the NPC has caused confusion and will result in legal challenges either to the validity of the old legislation or the validity of any new legislation. For this reason we believe that the Chief Executive should seek to persuade the Standing Committee of the NPC that it has made a mistake both in legal and practical terms, and urge it to countermand its earlier decision.

7. In disallowing the laws in question the Standing Committee of the NPC acted on the recommendation of the legal sub-committee of the Preparatory Committee. We would suggest that if that sub-committee is to remain in existence its operations and staffing should be reviewed to improve the quality of its output.

Adequacy of Existing Law

8. The existing regulation of public order and societies in Hong Kong works well. There are no significant problems which require changes in the law. We consider that the American expression "If it ain't broke don't fix it," describes the correct attitude towards changes in this field.

Inadequacy of Consultation Period

9. We likewise believe that this is an area where if there are nevertheless to be any changes they should first be the subject of full and extensive consultation with the very wide range of organisations which would be affected. A three-week consultation period is not enough for this purpose. We believe that to allow time for everyone concerned to respond a consultation period of two months would be appropriate.

Drafting of Consultative Document

10. The consultation document is drafted in an unhelpful and confusing manner, in that the detailed amendments contained in the Annexes do not correspond to the changes proposed in the text. In several key areas the amendments are much wider than the text indicates. We understand from the Chief Executive's Office that this was not intended. We comment below on the details of the amendments.

11. The document is described as a consultation document. However it nowhere sets out any alternative proposals or options. It is written as if it is a blueprint for legislation. This, combined with the very brief period for responses, led us to question the Chief Executive's Office as to whether it represents a genuine attempt at consultation, or is merely a public relations exercise which will not lead to any alteration of decisions which have already been taken. We were assured that it was a genuine attempt at consultation. In the hope that this is right we offer the following more detailed comments.

Chapter 3

12. The suggestion in paragraph 3.3 that recent incidents suggest that the law should be changed to be more restrictive of rights under Articles 21 and 22 of the ICCPR is based on mistakes of facts and fundamental misunderstanding of existing law.

13. We understand from statements from the Chief Executive's office that the reference to demonstrators blocking the traffic in the heart of the business centre is a reference to a demonstration outside the Hong Kong Convention Centre on 21 December 1996 when a number of demonstrators were arrested after they lay down in the road. What the author of the consultation document appears not to know is that at the time the road in question was closed to traffic. There was therefore no question of the demonstrators "blocking the traffic." If they had been blocking traffic they would have been committing the offence of obstructing the highway and could have been prosecuted. There is no need for any change in the law to prevent roads being blocked by demonstrators. Lying down in a closed road as a way of making a protest may be thought by some to be objectionable. However if there is no obstruction it does not harm anyone and is not a crime. If the arrest of those demonstrators shows anything therefore, it is a need for reform of police training and the police complaints system to ensure that the police do not exceed their powers and make unlawful arrests.

14. There are also a wide range of existing laws which deal with the other two situations described in this paragraph—intruding into a foreign consulate or disrupting the work of business premises. Trespass and intimidation are both torts giving rise to civil actions. A constable may arrest anyone whose conduct is liable to cause a breach of the peace. Reasonable force can be used to remove a trespasser. Disorderly conduct is an offence under the existing Public Order Ordinance. Present powers to deal with disorderly conduct in a public place are ample.

15. In addition there is in fact so little disorder in Hong Kong that existing powers are rarely invoked. Human Rights Monitor recently inquired of the secretary to the appeals board set up under the Public Order Ordinance how many times the Board had met to deal with appeals against the banning of demonstrations or the impositions of conditions to which the organisers objected. The response was that the board had never met because there had been no appeals, and as far as the Board was aware the Commissioner of Police had not banned any demonstrations since the Board was set up in 1995. During that period there have been over a thousand peaceful demonstrations. Disorder from demonstrations is hardly a serious social problem in these circumstances.

Chapter 4

16. Paragraph 4.3 refers to Article 23 of the Basic Law as prohibiting political organisations or bodies in the SAR from establishing ties with foreign political organisations or bodies. It states that this reflects an earlier similar restriction in the old Societies Ordinance before that was amended in 1992. It is true that under the old Societies Ordinance the registrar of societies could refuse to register a society if he was satisfied that the society was affiliated to or connected with any organisation or group of a political nature established outside Hong Kong. However, the whole system of registration of societies was abolished in 1992 because it was recognised to be in breach of Article 18 of the Hong Kong Bill of Rights, which provides for the right of freedom of association, reflecting identical wording in Article 22 of the International Covenant on Civil and Political Rights. Article 18 of the Bill of Rights will continue to be part of the law of Hong Kong after the transfer of sovereignty. The same legal obstacles and objections to a system of compulsory registration of societies will therefore continue to apply after 1 July 1997. Article 39 of the Basic Law also states that the provisions of the ICCPR as applied to Hong Kong shall remain in force.

17. The abolition of the power to deregister a society because of foreign connections has not left the Government powerless to control societies which develop genuinely harmful foreign connections. It is possible for a society to be prohibited from operating under Section 8 of the present Societies Ordinance where the Societies Officer reasonably believes that its operation might be prejudicial to the security of Hong Kong. This power is rarely used but is available if required. If a society has a foreign connection which is not prejudicial to the security of Hong Kong there is no reason for stopping its operation.

18. It should also be noted that the provision in the old Societies Ordinance referred to an affiliation or connection with a foreign organisation. The changes proposed in the Consultative Document go even wider, prohibiting mere financial assistance of any kind, not merely from foreign organisations but from "aliens." This also goes much further Article 23 of the Basic Law, which merely refers to " ties with foreign political organisations."

19. The implicit justification for the changes contained in paragraph 4.2, namely that it is merely restoring the pre-1992 position is therefore misguided as well as factually wrong. The pre-1992 law, although narrower than what is proposed, was abolished because its provisions infringed human rights law and were unnecessary. The same applies all the more strongly to the present proposals.

20. The comparision drawn at para. 4.3 with the provisions of the European Convention on Human Rights is also misconceived. Article 16 of that Convention provides that the Convention shall not be regarded as preventing the contracting parties from imposing restrictions on the political activity of aliens within the territory of the state. The proposal in this chapter goes much further in that it restricts the political activity of Hong Kong permanent residents by preventing them from soliciting or accepting donations from overseas.

21. The document asserts that such a restriction is necessary for national security. No evidence or examples are put forward to substantiate this assertion. As already explained if there were a real problem of that kind power exists to deal with it under Section 8 of the present Ordinance. In reality, a far more pressing and urgent problem with regard to the security of Hong Kong society is the risk of Hong Kong political organisations being controlled from mainland China in a way that imperils the operation of "One Country, Two Systems." The primary thrust of any new legislation designed to prevent Hong Kong political organisations being controlled from elsewhere should be tackling that problem, on which this document is silent.

22. Paragraph 4.4 states that steps must be taken to prevent Hong Kong from being used for political activities "against China." This begs the question as to whether support for political change in China is to be regarded as "against China" because it is opposed by the current Chinese leadership. Hong Kong has many Chinese citizens, who will be citizens of a Special Administrative Region of the People's Republic of China after July 1, who regard themselves as patriotic, and who wish China to be a liberal democracy with more political freedom than it has today. Some of these citizens are members of a well-known political organisation, the Alliance in Support of the Patriotic Democratic Movement in China. If the Consultative Document is implying that the activities of this organisation or others like it will not be permitted on "national security" grounds or on the grounds that their activities are "against China" this would be a gross breach of the rights of those citizens to speak, assemble and associate freely, as provided for by Articles 19, 21 and 22 of the ICCPR; Articles 16, 17 and 18 of the Hong Kong Bill of Rights; and Article 27 of the Basic Law. Any restriction on political activity because of national security must be strictly limited to organisations which are actively trying to bring about the violent overthrow of the state.

23. In paragraph 4.6 a definition is proposed of political organisations as "those societies which directly participate in political activities relating to government institutions and comment on public affairs as their main objective." It is not clear whether this means that to be a political organisation an organisation must be one that both directly participates in political activities relating to government institutions and comments on public affairs, or one that does either of these things. The natural meaning of the sentence would suggest the former and it is hoped that this is what those drafting the document have in mind. Any definition which adopted the latter meaning would transform into political organisations many organisations which speak out on public affairs but have absolutely no intention of participating in politics, such as Amnesty International, Friends of the Earth, Hong Kong Human Rights Monitor or the Better Hong Kong Foundation. We have been assured by the Chief Executive's Office that this is not so. However the amendments proposed in the annex have the effect of defining such organisations as political organisations. In addition the amendment proposed would have the effect of defining the Hong Kong Bar Association as a political organisation. The proposed amendments concerned are explained more fully below.

24. Paragraph 4.7 is highly objectionable. It is totally abhorrent to prohibit any society from operating if any of its policies are determined "at the suggestion of or in collaboration with foreign political organisations." This would mean that a mere suggestion originating from a foreign political organisation, if acted on by a Hong Kong group, would result in that group being liable to be suppressed if it engaged in political activities.

25. This paragraph is made even more unacceptable by the wide definition of political organisation. It is objectionable to equate influence with control. Every person and organisation is influenced by a wide range of contacts and pressures. Influence alone is impossible to avoid, is often wholly unobjectionable, and is in any case very difficult to define. While the passage of control to a foreign political group, in the sense that directive power over the organisation is no longer in Hong Kong, may be objectionable, there is no reason to attempt to prevent mere influence.

26. Paragraph 4.8 sets out a definition of "foreign political organisation" which is both vague and wide. 4.8(a) refers to a "a foreign government or a political subdivision of a foreign government." This presumably means that a "non political subdivision of a foreign government" would not be affected. Presumably an example of the latter might be a state-run university, or the national post office. However the vagueness of the phrase will generate enormous uncertainty. The phrase "instrumentality" is even wider and vaguer. An instrumentality, if it means anything at all, means something used as an instrument. Therefore if a private organisation is encouraged by a government to give funds to a Hong Kong organisation that gift will be political because the organisation is being used as an instrument for providing funds. We understand that the term instrumentality has been lifted from a United States statute. As far as we are aware the term has not been used in English or Hong Kong statutes.

27. An "international political organisation" at (d) would include the United Nations, the European Union, ASEAN, or the British Commonwealth. The proposals in paragraphs 4.7 and 4.8 would thus, among other things, prevent any organisation which comments on public affairs from ever receiving a grant from any United Nations organisation.

28. In addition the term "alien" used in these paragraphs would have ridiculous consequences if applied literally. "Alien" is defined in the Interpretation and General Clauses Ordinance as a person who is not a citizen of the United Kingdom or of a commonwealth country or of the Republic of Ireland. It bears no relationship to the various definitions in the Immigration Ordinance of persons having the right of abode in Hong Kong. Large sections of the Hong Kong population are aliens under this definition. If, as proposed in the annex, the definition is amended to mean that aliens are persons who are not citizens of the People's Republic of China the results will still be absurd, as they will mean that any organisation within the wide definition above which accepts a financial assistance, including a donation or a subscription, not merely from a visitor to Hong Kong, but from a Hong Kong permanent resident who is not citizen of the People's Republic of China, will be liable to be suppressed.

29. Representatives of the Chief Executive have suggested that some of the more extreme effects of the wording used in these proposed amendments is not intended, and that no action would be taken against most of the organisations which would be caught by such wording. If this is correct, then the wording must be drastically revised. It would be a particularly insidious form of repression to enact a law which criminalised large numbers of organisations, but was only actually used against a few of them.

30. The singling out of "persons resident in Taiwan" (presumably excluding those who have the right of abode in Hong Kong) and organisations based in Taiwan for special restrictions while Taiwanese citizens are regarded as citizens of the People's Republic of China under Chinese law is discrimination on the basis of ethnic origin and of status. It is unlawful under Article 26 of the ICCPR, and Articles 1 and 22 of the Hong Kong Bill of Rights and Article 39 of the Basic Law. Nor is there any evidence put forward that the various Taiwan linked organisations which have operated in Hong Kong for many years constitute a national security problem which would provide a justification for derogating from normal human rights protection.

31. Any restrictions on the rights of freedom of association must, if they are to comply with the ICCPR, the Bill of Rights and the Basic Law, be both :-

(a) necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others (see Article 22 of the ICCPR quoted at para. 2.2 of the consultative document);

(b) proportionate to the seriousness of the problem which they are designed to tackle. The United Nations Human Rights Committee has ruled that the principle of proportionality requires a precise balancing of the intensity of a measure limiting the right of freedom of association with the specific reason for interference, and that a total prohibition of an association is permissible only for organisations which threaten the state, advocate race hatred or war, or aim to destroy the freedoms of others. This principle has been recognised by the Hong Kong courts as being applicable to Hong Kong (see R v Sin Yau Ming1992 1 HKLR 127).

32. The justification given in paragraph 4.10 for restoring a registration system for societies instead of the present notification system is that without it it will be more difficult for the Societies Officer to obtain additional information where there are doubts as to whether the society should be allowed to operate in Hong Kong. This justification is not remotely sufficient to provide a legal basis for removal of normal human rights protection. There is no evidence in the document of any necessity at all for imposing restrictions in this area. No organisations or even types of organisations are suggested which are now under non-Hong Kong control or in danger of falling under such control. There is no problem which requires a departure from Hong Kong's existing human rights law.

33. More generally, this part of the consultation document appears to have been mindlessly copied from the United States Treason, Sedition and Subversive Activities Act, which restricts political activities by organisations subject to foreign control (but does not ban them) and from the United States Federal Election Campaigns Act, which makes it unlawful for a foreign national to contribute to an election campaign.

34. However the United States is exceptional in having laws of this kind. There are no equivalent restrictions in the UK. Mr C.H. Tung was acting entirely legally under English and Hong Kong law in making a donation some years ago to the British Conservative Party. Nor are there equivalent restrictions in Canada or Australia. It should be noted that the United States only acceded to the ICCPR in 1993 and the conformity of the two American laws described above with the ICCPR has not yet been tested in the American courts. It would be ironic indeed for Hong Kong to copy those American provisions only for one or other of those provisions to be struck down shortly afterwards as being illegal.

35. However, the American restrictions do not go anywhere near those proposed in the Consultative Document. The requirement to register under the US law is very narrow. It applies to organisations subject to foreign control which engage in political activity, defined as any activity the purpose of which includes the control by force or overthrow of the Government of the United States or a part of it. Few political organisations would fall into that category. Most US organisations are therefore not required to register even if they are subject to foreign control.

36. If the present proposals proceed at all , which we think would be wrong, their worst effects could be removed if they were revised to limit political organisations to those which campaign for elected office, and if they substituted for a requirement not to accept foreign donations a requirement for political organisations to file annual accounts. This would ensure that information was publicly available about the sources of funding of political parties. If the accounts showed that a political organisation was under the control of an organisation outside the Hong Kong Special Administrative Region, it might then, depending on the circumstances, be justifiable for the Societies Officer to consider exercising his existing powers relating to the security of Hong Kong— if in fact the control was of a kind which endangered that security.

37. Such an alternative should, incidentally, be acceptable to the Central People's Government of China, which permits foreign organisations to give financial assistance relating to legislative functions and elections in China. The Ford Foundation has recently given a grant of US$75,000 to the National People's Congress Legislative Affairs Commission to "develop reform proposals for China's major administrative laws," while the European Union is funding a programme to increase women's participation in local elections. Both these programmes, if they were in Hong Kong, would be stopped by the proposals in the Consultative Document, but would not be affected by the alternative proposal in the preceding paragraph.

Chapter 5: Public Order

38. As indicated above , the underlying assumption behind the proposed changes to the Public Order Ordinance, namely that there is a problem with public order in Hong Kong now, is wrong.

39. The effect of the proposed introduction of a requirement to obtain a "Notice of No Objection" from the police, which the police need not issue until 48 hours before a demonstration, would have the opposite effect of the stated aim of the authors of the documents which is to promote social stability.

40. Large demonstrations require considerable organisation. If the organisers have only 48 hours from police approval to the occurence of the demonstration there is much more likelihood that the demonstration will be badly organised, and that in turn will increase the risk that it will become disorderly.

41. Demonstrations are a reflection of strongly held feelings on the part of the participants. They are often held in immediate reaction to major events. The police recognise this reality and normally do not object if the demonstration is otherwise unobjectionable. A provision, such as that suggested in paragraph 5.8, that in no case can a demonstration be given without 48 hours notice, will be bound to lead to demonstrations which are by reason of this restriction automatically illegal. If these are then broken up by force Hong Kong's streets will become a scene of violent confrontations in a way which does not occur at present.

Annexes: Proposed Amendments

42. The definition of " political activities " ( pages A4 and A5) includes "facilitating its members who are members of the Legislative Council, Urban Council, Regional Council or a District Board in executing their functions as members of those bodies (including provisional bodies), other than the activities of a functional constituency organisation."

43. Under Article 73 of the Basic Law the functions of the Legislative Council of the Hong Kong Special Administrative Region shall exercise functions including not merely enacting, amending or repealing laws, but also raising questions on the work of the Government, and debating any issue concerning public interests.

44. It follows that any organisation which helps a member of the Legislative Council who is one of its members to ask a question or prepare a speech will be a political organisation within the proposed definition.

45. The effect of this amendment is made even more far-reaching by the wording of the proposed definition of a functional constituency organisation (page A7) as "an organisation that is an elector in a functional constituency." This means that organisations in old style pre-1995 functional constituencies, where an organisation is an elector, are exempted from the proposed restrictions, but organisations in the present day functional constuencies, whose members vote as individuals, such as the Bar Association, the Law Society, the Hong Kong Institutes of Architects, Surveyors, and Planners, will be within the definition if they involve themselves in any way in assisting their functional constituency member with a speech or a Legco question. Most of these organisations receive membership subscriptions from persons who would be aliens under the proposed definition, and will therefore be liable to be refused registration and suppressed under these proposals.

46. This problem could be overcome by simply deleting the second paragraph from the definition of political activities contained in the annex. If the proposals are not abandoned in their entirety we urge that that deletion be made.

47. The transitional changes proposed to the Public Order Ordinance would have the consequence, perhaps unintended, of prohibiting all demonstrations between 4 and 9 July of which notice has not been given before 27 June i.e. up to 11 days in advance. This means that if some major event after 27 June precipitates a demonstration in that period the demonstration would be illegal, no matter how strong the public feeling giving rise to it. This proposal will have to be revised to provide some arrangement for legal demonstrations during this period with a shorter notification period if the risk of potential serious disorder is to be avoided.

48. This difficulty is another example of the unintended and undesirable effect of altering present legislation. The present legislation permits the Commissioner of Police to accept shorter notice of demonstrations provided at least 48 hours notice is given. Simply continuing this provision would avoid the problem described in the preceding paragraph.

Conclusion

49. The proposed changes are unnecessary and damaging. They are badly drafted, and would open a Pandora's box of unforeseen and unintended consequences. If enacted in their present form they will reduce freedom, increase social disorder, and provide no advantages of any kind. Even if they are revised in line with the suggestions included in this document it will still send a message to the world that the first major action of Hong Kong's new Government is to curb civil liberties. This is the opposite of the confidence boosting message that is the Chief Executive's stated aim. The best course, as stated at the start of this response, is to leave alone a system that is obviously working well and has the support of the people.

April 24, 1997

Chief Executive-Designate C.H.Tung

The HKSAR Chief Executive's Office

1111 Asia Pacific Finance Tower

Citibank Plaza, 7th Floor

3 Garden Road

Hong Kong

Dear Chief Executive-Designate Tung:

The Lawyers Committee for Human Rights is an internationally focused non- governmental human rights organization based in the United States. Our work is impartial, holding each government to the standards affirmed in the International Bill of Human Rights. The Lawyers Committee welcomes the consultation process initiated by your office in connection with proposed amendments to the Societies Ordinance and Public Order Ordinance for Hong Kong, to take effect after July 1, 1997. This letter seeks to contribute to that process by drawing your attention to a number of conflicts between the proposed amendments and international human rights law.

1. We welcome your concern to uphold the individual rights enshrined in the International Covenant on Civil and Political Rights (ICCPR), expressed in paras. 3.6 and 3.8 of theConsultation Document on Civil Liberties and Social Order. In this context the Consultation Document correctly notes that freedom of association and assembly are rights guaranteed to individuals by the ICCPR. It distorts the spirit and letter of the Covenant, however, in its treatment of the "restrictions which the ICCPR places on [these] rights" [para. 3.3]. The intent of the ICCPR is to protect the rights of individuals against the state. Restrictions on these rights, while permitted in certain circumstances, are to be narrowly drawn and strictly interpreted. In particular, the ICCPR permits (not "places") certain, limited restrictions to be placed on some of the rights.

This mischaracterization of the limitations permitted under Articles 21 and 22 unfortunately reflects the tenor of theConsultation Documentas a whole. The emphasis is placed on narrowing the rights guaranteed to the individual. By contrast, the spirit of the ICCPR is clearly a bias in favor of the individual's rights. That, after all, was the reason behind the drafting of the Bill of Rights—to guarantee to all persons certain basic human rights. While it is clear that in some circumstances limits may be placed on these rights because of overriding public interests, the burden is on the government to justify these limits as being in conformity with international law, and only such limits as are strictly needed to achieve the necessary aim pursued are legitimate.

2. Articles 21 and 22 of the ICCPR note that any restrictions must be (a) prescribed by law,and (b) necessary in a democratic society,for(c) one of the following public policy interests: 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. All three conditions must be fulfilled for a restriction to be in conformity with the ICCPR. Jurisprudence from the European Convention on Human Rights (ECHR), which has broadly similar limitations clauses and has often been relied upon by other international and regional human rights supervisory bodies, is useful in interpreting this language. For a limitation to be "prescribed by law" it must be sufficiently precise to enable people to regulate their conduct. (Sunday Times v. UK) .

As discussed below, many of the proposed modifications to the law include language so broad and vague that it is hard to determine what actions do and do not fall foul of the proposals. Second, to be "necessary in a democratic society," limitations must be more than merely "useful" or desirable," and must be appropriate and proportional to the legitimate aim pursued. (Handyside v. UK). While the justification cited for making the proposed amendments to the Societies Ordinance (to prevent Hong Kong from being controlled by foreign political forces) is not objectionable on its face, (a) the restrictions proposed go far beyond what is required to meet the need, and (b) this fails to reflect the reality that the greater danger facing Hong Kong is that mainland China will exercise undue influence over the Special Administrative Region and thus undermine the principle of "one country, two systems."

Similarly, the reasons cited for amending the Public Order Ordinance—intrusion into a foreign consulate, blocking of traffic and disruption of the work of commercial enterprises—are simply insufficient to justify the proposed restrictions on holding demonstrations. All of the above "incidents" could be dealt with by other provisions in both civil and criminal law. None warrants the exceptional measures proposed in the Consultation Document.

3. The proposed amendments to the Societies Ordinance are over-broad, ill-defined, and leave the fate of societies covered by the Ordinance to the discretion of the executive with no provision for an independent appeal process. In particular, while a registration requirementper se may not be contrary to the ICCPR, the procedures should be simple, quick, inexpensive and subject to independent judicial review in order to conform with Article 22. If these criteria are not met, the process of registration runs the risk of being so burdensome as to effectively deny the right to freedom of association.

(i) In the case of Hong Kong, the Consultation Document does not explain why a registration system (as opposed to notification) is required at all. It is not clear why it should be more difficult for the Societies Officer to "obtain additional information" under a notification system. Instead, the proposed modification, which greatly expands the grounds on which a society may be refused permission to establish, raises the specter of an executive seeking to control the non- governmental sector. In particular, the proposed grounds for justifying refusal to register are broad and poorly defined. This vagueness effectively leaves the decision of whether to register a society or not to the discretion of the executive. Such arbitrariness is contrary to the spirit of the ICCPR.(63)

(ii) The sweeping prohibition on societies "which engage in political activities" from having financial links with any alien or foreign organization, or from having any "connection" with "foreign political organizations" is objectionable for several reasons.

First, the reasons cited for introducing these amendments, in particular those referring to national security (para. 4.3), are not explained and appear to be insufficient justification for the amendments proposed. In particular, the reference to national security seems to reflect a misunderstanding of the way in which international human rights law has interpreted this term. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, which were adopted in May 1984 and reflect the consensus of a number of international jurists, stipulate that national security relates only to those situations in which the existence of a nation or its territorial integrity or political independence is endangered by force or threat of force.

Second, the definitions leave it unclear: (a) which societies are covered (the definition of political activities in the text of the document does not correlate to the definition in Annex A, and appears to include groups such as human rights organizations); (b) what relations, if any, with any foreign "political organization" might be permitted—for example, would an exchange of materials fall foul of the amendment, or a telephone call, or a visit to or from such an organization? (c) what the phrase "foreign political organization" covers—for example, it would appear that a body such as the Human Rights Committee of the United Nations, which is the supervisory body of the ICCPR, would be prohibited from contacting a human rights NGO in Hong Kong. Similarly, the term "instrumentality of a foreign government" is highly subjective, and open to a wide variety of interpretations, and an "international political organization" could be interpreted to include international human rights groups.

(iii) Refusal to register a society (or cancellation of registration) is the most serious punishment which can be imposed on a society and, at least in the case of having a connection (as defined so broadly) with a foreign political organization, is not proportional to the aim pursued.

(iv) The prohibition on establishing ties with foreign organizations appears to rule out a society in Hong Kong affiliating itself to a larger, international society pursuing the same ends. Many human rights groups throughout the world are affiliated to larger, international groups. The amendments would appear to prohibit such a relationship. This appears to be in violation of at least the spirit and intention of Article 25 of the ICCPR, which deals with political rights, as explained in a General Comment by the Human Rights Committee. The Committee specifically noted that:

the right to freedom of association, including the right to form and join organizations and associations concerned with political and public affairs, is an essential adjunct to the rights protected by article 25.

We believe that this is also a violation of Article 22.(64)

(v) No provision is made for an independent appeals process from a refusal to register a society. The lack of an independent judicial review process probably renders the procedure incompatible with the ICCPR. (65)

4. The amendments to the Public Order Ordinance are similarly disquieting in their vagueness and potential for abuse. The justification cited for the changes—"a need to strike a balance between personal freedoms and social stability"—(para. 5.4) does not conform to the limited circumstances in which the ICCPR permits restrictions on the right of assembly. The importance of this was highlighted in a recent case before the Human Rights Committee, when a requirement to notify police of a meeting ahead of time was held to be unjustified as it was not required for one of the reasons explicitly laid down in the Covenant.(66)

For the reasons outlined above, we strongly urge you to reconsider the amendments that your office has proposed making to the Societies Ordinance and the Public Order Ordinance, to give careful consideration to any comments and opinions you may receive in response to theConsultation Document, especially from knowledgeable and representative members of the Hong Kong legal profession, and to ensure that legislation on these matters in force in Hong Kong after July 1 continues to reflect both the concerns of the people of Hong Kong and an informed interpretation of international law. We appreciate your attention to our concerns.

Sincerely,

Michael H. Posner

Executive Director

The Lawyers Committee for Human Rights

Since 1978, the Lawyers Committee for Human Rights has worked to protect and promote fundamental human rights. Its work is impartial, holding each government to the standards affirmed in the International Bill of Human Rights, including

the right to be free from torture, summary execution, abduction and "disappearance";
the right to be free from arbitrary arrest, imprisonment without charge or trial, and indefinite incommunicado detention; and
the right to due process and a fair trial before an independent judiciary

The Committee conducts fact-finding missions and publishes reports which serve as a starting point for sustained follow-up work within three areas: with locally-based human rights lawyers and activists; with policymakers involved in formulating U.S. foreign policy; and with intergovernmental organizations such as the United Nations, the Organization of American States, the Organization of African Unity and the World Bank.

The Committee's Refugee Project seeks to provide legal protection for refugees including the right to dignified treatment and a permanent home. It provides legal representation, without charge, to indigent refugees in the United States in flight from political persecution. With the assistance of hundreds of volunteer attorneys, the Project's staff also undertakes broader efforts—including participation in lawsuits of potential national significance—to protect the right to seek political asylum as guaranteed by U.S. and international law.

If you would like more information about the Lawyers Committee, please write to us at:

Publications Department

Lawyers Committee for Human Rights

330 Seventh Avenue, 10th Floor

New York, NY 10001

USA

Tel: (212) 629-6170 E-mail: comm@lchr.org Fax: (212) 967-0916

Hong Kong Human Rights Monitor

The Hong Kong Human Rights Monitor works to promote better human rights protection in Hong Kong, both in terms of law and of practical daily life, and encourages greater human rights awareness. The Monitor is particularly concerned that human rights should be protected in the light of the transfer of administration from the United Kingdom to the People's Republic of China. The Monitor focuses on human rights law, as contained in international human rights instruments that apply to Hong Kong, and on domestic Hong Kong law that incorporates international human rights norms. The Monitor engages in community service and assists in resolving community and individual problems and promoting education and awareness of human rights issues in Hong Kong. The Monitor also engages in domestic and international advocacy—before governmental and inter-governmental bodies—on Hong Kong human rights concerns.

The Monitor was founded in 1995 by individuals drawn from the legal profession (law academics, solicitors and barristers, and legislative council members), community human rights leaders and advocates, and others. Founding members of the Monitor are: Professors Andrew Byrnes and Johannes Chan, (Faculty of Law, University of Hong Kong); Philip Dykes, QC, chief architect of the Hong Kong Bill of Rights; Ho Hei Wah (active with the Society for Community Organisation and the Hong Kong Human Rights Commission); Stephen Ng and Charles Mok (former Chairman and Vice-Chairman of the Association of Hong Kong Chinese in the United States); John Kamm (a businessman with long experience of promoting uman rights in China); P.Y. Lo (member of the Hong Kong Bar Council and an expert in international human rights law); Christine Loh (Legislative Councillor); and Phillip Ross (a noted Barrister and human rights worker). Its founding chairperson is Paul Harris, an English Barrister who was the first Chairman of the English Bar Human Rights Committee.

The Monitor has approximately 120 members from all walks of life. Non-founder members who are also members of the Hong Kong Legislative Council (raising the total of Legco members to 11) include Elizabeth Wong, Lau Chin Shek, Andrew Cheng, Bruce Liu, Leung Yiu-Chung, Zachary Wong, Albert Ho, Emily Lau, Lee Cheuk Yan and James To. Many members have long experience of human rights advocacy. There are no formal requirements for Monitor membership, which is open to anyone with a commitment to the rule of law and to human rights. Approximately 90% of Monitor members live in Hong Kong. The remaining 10% live in a variety of countries, including the United Kingdom, Malaysia, the United States of America, Australia, the Philippines, and Canada. The Monitor has representatives in Washington, DC, New York and Canada. Some of the overseas members act as liaisons between the Monitor and overseas Governments and NGOs, and other concerned entities. Approximately 70% of Monitor members are Hong Kong Chinese.

The Monitor's principal activities since its inception have consisted of: monitoring the actions of the Hong Kong government on human rights matters, and speaking out on those issues; conducting human rights research; investigating allegations of abuses; publishing and distributing human rights information in English and Chinese; and participating in the United Nations system for the protection of human rights by lobbying, briefing and appearing before UN Committees.

Monitor staff include Mr. Law Yuk Kai and Mr. Lai Wing Yiu.

(1) See, for example, reports prepared by Mr. Louis Joinet, for the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1992/25 of June 15, 1992, and E/CN.4/Sub.2/1993/25 of July 30, 1993. Internationally focussed NGOs have also paid increasing attention to this phenomenon. See, for example, Attacks on Justice, the annual publication of the International Commission of Jurists—Center for the Independence of Judges and Lawyers, the annual publicationIn Defense of Rights, issued by the Lawyers Committee for Human Rights from 1989 to 1993, and entries in the annual Human Rights WatchWorld Report, which includes a section on the situation of human rights defenders in each country with which it deals. The US Department of State has also devoted increasing space to the topic in its annualCountry Reports on Human Rights Practices. 0

(2) The Basic Law is the "mini-constitution" that will come into force in Hong Kong on July 1, 1997. The Basic Law was promulgated by China on April 4, 1990, pursuant to the Joint Declaration on the Question of Hong Kong, which is an international treaty entered into by the United Kingdom and China, by which the parties agree, inter alia, that China will resume sovereignty over Hong Kong on July 1, 1997. See Basic Law of the Hong Kong Special Administrative Region, Decree of the President of the People's Republic of China, No. 26, (April 4, 1990), reprinted in 29 ILM 1511 (1990); see also Joint Declaration of the Government of the United Kingdom of Great Britain and the Government of the People's Republic of China on the Question of Hong Kong (1985) UKTS No. 26, Cmnd 9543; reprinted in 23 ILM 1371 (1984)

(3) See Nihal Jayawickrama, Human Rights in Hong Kong: The Continued Applicability of the International Covenants, 25 HONG KONG L. J. 171 (1995); Johannes Chan, State Succession to the Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights, 45 INT'L & COMP. L. Q.97 (1996). But, the PRC has announced that she will ratify the ICESCR by the end of 1997. See Fung Wai-king, China Urged to Sign Covenant— Backing Political Rights, SOUTH CHINA MORNING POST, Apr. 9, 1997, at 6; Edward A. Gargan, Right to Protest in Hong Kong to Be Cut Back, N.Y.Times, Apr. 10, 1997, at A1.

(4) Owners Expected to Turn Screw, Anxious Not to Upset Beijing: Will There be Increasing Censorship, SOUTH CHINA MORNING POST, Apr. 21, 1997, The Media at 3.

(5) The Societies Ordinance, which was contained in Ordinance No. 28 of 1949, is found at Chapter 151 (1950) of the Laws of Hong Kong. After 1949, the Societies Ordinance was amended numerous times, with the more significant amendments occurring in 1957, 1961 and 1992: Societies (Amendment) Ordinances No. 31 of 1957, No 28 of 1961, and No 75 of 1992. Before the Societies Ordinance was enacted, Hong Kong people were free to associate with whomever they chose, without restriction, as was the case (and still is) in the United Kingdom. This ordinance, and its multiple iterations between 1949 and 1991, are referred to hereinafter as the "pre-1992 legislation" because they represent the widening and tightening of social control imposed on Hong Kong NGOs during the period commencing in 1949, and ending in 1992 with the adoption of liberalized amendments to the Societies Ordinance. Other legislation that governs the creation and operation of different types of groups in Hong Kong includes the Companies Ordinance and the Trade Unions Ordinance.

(6) Introduced by Societies (Amendment) Ordinance No. 28 of 1961.

(7) Societies (Amendment) Ordinance No. 33 of 1952

(8) Id.

(9) Section 5(c), Societies (Amendment) Ordinance No. 28 of 1961.

(10) The Governor in Council could, at his discretion, order that any exempted or registered society be dissolved where he was satisfied that such society was being used for purposes "prejudicial to or incompatible with peace, welfare or good order in the Colony." (Societies (Amendment) Ordinance No. 28 of 1949, s 16). Appeal was once allowed to the Supreme Court of Hong Kong, but such appeals were later disallowed. See, e.g. Societies (Amendment) Ordinance No. 28 of 1961, s 5(g)(1).

(11) See Societies (Amendment) Ordinance No. 28 of 1949, s 7(1)(d).

(12) Societies (Amendment) Ordinance No. 75 of 1992.

(13) The United Kingdom extended both covenants to Hong Kong on May 20, 1976.

(14) UN Doc. CCPR/C/1/Add. 37 (1978).

(15) NGOs were involved with other Treaty Body reports during this period, such as the First Report on Hong Kong under the ICESCR which was submitted to the UN Economic and Social Council (the predecessor to the Economic Committee) on April 13, 1981. U.N. Doc. E/1980/6/Add.35 (1980).

(16) UN Doc. CCPR/C/32/Add. 14, Annex F, pp. 62-101 (1988). That report was supplemented by UN Doc. CCPR/C/32/Add.15, Annex F, pp. 6-9 (1988).

(17) CCPR/C/SR 855-887 (1988).

(18) Among those groups was the Hong Kong Journalists Association, JUSTICE, and the Professional Lobby Group.See Nihal Jayawickrama, Hong Kong and the International Protection of Human Rights, in HUMAN RIGHTS IN HONG KONG 120, 134 (Raymond Wacks ed, 1992, Oxford University Press).

(19) The Sub-Commission on Human Rights is the Charter-based body of the United Nations that meets each August in Geneva, and in which many human rights abuse complaints against nations are first officially lodged within the UN system. Although the resolution was not directly related to Hong Kong, Hong Kong people participated instrumentally in the NGO team that lobbied for its passage. The international community has attempted to have a resolution passed each of the past seven years in the UN Commission on Human Rights, but China has managed to muster sufficient political support to defeat these efforts.

(20) UN Doc CCPR/C/58/Add. 6 (March 6, 1990); UN Doc CCPR/C/58/Add.11 (March 18, 1991) (supplemental report). Other reports that were submitted to UN Treaty Bodies, and for which hearing were held in the early 1990s, included the United Kingdom's Tenth Periodic Report to the Race Committee, which was heard at the Race Committee's March 1991 Session. See UN Doc. CERD/C/SR.907 (1991); UN Doc CERD/C/SR.908 (1991); UN Doc CERD/C/172/Add. 16 (1991).

(21) Nihal Jayawickrama, The Bill of Rights, in HUMAN RIGHTS IN HONG KONG 37, 67 (Raymond Wacks, ed., Oxford University Press 1992). Among the NGOs involved in Bill of Rights discussions and debates were the Bar Association of Hong Kong, JUSTICE, the Law Society of Hong Kong, the Civic Association of Hong Kong, and the Human Rights Commission. See id. at 67, 71.

(22) Hong Kong Bill of Rights Ordinance (Chap 383 of the Laws of Hong Kong) (Preamble), reprinted in Public Law and Human Rights: A Hong Kong Sourcebook 218 (Andrew Byrnes & Johannes Chan eds., Butterworths Asia 1993)

(23) The "Registrar", under the pre-1992 legislation, was replaced by a "Societies Officer". However, in both cases, that individual is the Commissioner of Police.

(24) Among the respective Committees, reports and corresponding hearings are: the Economic, Social and Cultural Committee (two periodic reports; hearing November 1994 and 1996); the Human Rights Committee (one periodic report and one supplementary report; hearings October 1995 and 1996); the Committee Against Torture (one report; hearing November 1995); the Race Committee (one report ; hearing March 1996); and the Committee on the Rights of the Child (one report; hearing September 1996).

(25) See, e.g., Peter Burns, The Convention Against Torture and the Work of the Torture Committee (in TORTURE IN HONG KONG: IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST TORTURE & OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT) (Eds. A Byrnes, G Edwards, & S Wilkens, Center for Comparative and Public Law, University of Hong Kong: 1995) (The Torture Committee "finds the materials supplied to it by NGOs to be of the most vital significance. ... [S]pecifically directed NGO material related to the particular country that we are dealing with has provided us with the most useful check against the information contained in the government report. Without that, I suspect we just could not function effectively at all.")

(26) The Center for Comparative and Public Law of the Faculty of Law, University of Hong Kong, has traditionally invited members of the various treaty bodies to Hong Kong, following the publication of particular Hong Kong periodic reports, and before hearings on them. Hong Kong NGOs have also accompanied Committee members to prisons, refugee detention centers, "cage homes," the courts, etc., to talk to victims of human rights abuses, to listen to concerned members of the public and to meet with government officials.

In October 1995, the Human Rights Committee held hearings on the United Kingdom's Fourth Periodic Report on Hong Kong. (UN Doc. CCPR/C/95/Add. 5 (1995).) NGOs attending the hearings included the United Ants, the Hong Kong Human Rights Commission, the Hong Kong Human Rights Monitor, the Hong Kong Bar Association, the Hong Kong Journalists Association and JUSTICE. Representatives of the Center for Comparative and Public Law also attended the hearings and presented submissions by several Hong Kong NGOs who were unable to travel to Geneva.

In October 1996, the Human Rights Committee held hearings on a United Kingdom Supplemental (Extraordinary) Report to the Fourth Periodic Report on Hong Kong. The hearings, also held in Geneva, were attended by the Hong Kong Human Rights Monitor, the United Ants, the Hong Kong Bar Association, the Hong Kong Human Rights Commission, JUSTICE, the Hong Kong Journalists Association and the Society for Community Organisation. The Center for Comparative and Public Law was also present.

(27) Enfranchisement has been slow in coming to Hong Kong. Until recently, all Hong Kong Legislative Council members were appointed by the Governor of Hong Kong, who in turn was appointed by the Queen. Democratic elections for Hong Kong Legislative Council members began in 1991, with a small portion of members being elected by universal and equal suffrage. By 1995, all 60 members of the Council were "elected," although the electoral system remained defective in many ways.

(28) This list is not intended to be comprehensive. Likewise, the inclusion of a group or groups under a particular heading does not imply that such groups would necessarily categorize themselves in the same manner, or that they would even consider themselves to be "Hong Kong human rights NGOs."

Labor groups are not included in this list of NGOs with a human rights focus. Approximately 20% of the Hong Kong workforce belongs to a trade union or organization. The majority fall into three main factions: the pro-Beijing Federation of Trade Unions; the pro-Taiwan Hong Kong and Kowloon Trade Union Council; and the non-aligned Hong Kong Confederation of Trade Unions. Thirty-six percent of labor organizations are unaffiliated to any of the three. Labor groups have been heavily involved in advocacy, and they are at risk post-1997. They are likely to be adversely affected by the Societies Ordinance and Article 23 of the Basic Law, even though they are subject to a separate legislative regime. Some labor groups, considering the trade union regulatory scheme to be too burdensome, have chosen to register under the Societies Ordinance rather than the Trade Union Ordinance. This imposes a compulsory registration process, and the Registrar of Trade Unions has the power to monitor union activities through supervision of union rulebooks, accounts and related papers. The Registrar even has authority to monitor the internal administration of trade unions. Furthermore, the Trade Union Ordinance restricts the right of workers to organize.

(29) The legal profession in Hong Kong follows the English tradition, whereby barristers are permitted to appear on behalf of clients in the higher courts and solicitors are not.

(30) For a list of the UNIFIL organizations and their mandates, see George Edwards, FOREIGN DOMESTIC HELPERS—FILIPINAS AND OTHER ASIAN DOMESTIC WORKERS IN HONG KONG AND THE ASIAN REGION: A SURVEY OF LITERATURE & ANNOTATED BIBLIOGRAPHY 38-41 (Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong) (1996). See also Mission for Migrant Workers, Migrante (last modified Nov. 29, 1996) <http://www.hk.super.net/~migrant/mission.htm>.

(31) In addition to those listed here, other local groups include the Movement Against Discrimination (MAD); Against Child Abuse; the Council on Smoking and Health; Friends of the Earth; the Joint Council for the Physically and Mentally Handicapped; and the Humanist Association of Hong Kong.

(32) The functional constituency system in Hong Kong is a proportional system in which some members of the public are given two votes for representatives in the Hong Kong Legislative Council. Some members of the public would be able to vote for one representative based on the geographical area in which the voter lives, and would be permitted to vote for another representative of the voter's profession. Many people are entitled to two votes, but persons without a profession (such as unemployed persons, students or housewives) have only a single vote.

(33) Article 22 of the ICCPR, which is reproduced virtually verbatim in Article 18 of the Bill of Rights, provides:

(1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

(2) No restrictions may be placed on the exercise of this right other than those which are prescribed by 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. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

(3) Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

Paragraph 3 of Article 18 of the Bill of Rights is adapted to Hong Kong, as follows:

(3) Nothing in this article authorizes legislative measures to be taken which would prejudice, or the law to be applied in such a manner as to prejudice, the guarantees provided for in the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to organize as it applies to Hong Kong.

(34) The Privy Council, which sits in London, is the UK tribunal that serves as the court of last resort for Hong Kong cases. It will be replaced on July 1, 1997 by the Hong Kong Court of Final Appeal, which will sit in Hong Kong.

(35) 6 HKPLR 103 at 110

(36) Handyside v United Kingdom, 1 EHRR 737 (1976). Hong Kong Courts have looked for guidance to the jurisprudence of the European Court of Human Rights, the European Human Rights Commission and the United Nations Human Rights Committee.See R v Sin Yau-ming (1991) 1 HKPLR 88 at 107-108;see also Hong Kong Bar Council, Submission of the Council of the Hong Kong Bar Association on the Consultation Document on Civil Liberties and Social Order (Hong Kong: April 23, 1997), at paragraph 8 et seq (discussing standards in different countries regarding restricting fundamental freedoms) (on file at the Lawyers Committee).

(37) Decisions of other common law jurisdictions have been looked to by Hong Kong courts for guidance, particularly to overseas jurisdictions with constitutionally entrenched Bills of Rights, such as Canada and the United States.See R v Sin Yau-ming (1991) 1 HKPLR 88.

(38) Canadian Bill of Rights, Section 1.

(39) See, e.g.,R v Oakes [1986] 1 SCR 103, 26 DLR (4th) 200, 24 CCC (3d) 321

(40) See Cox v Louisiana, 379 U.S. 536, 13 L. Ed. 2d 471 (1965). See alsoBoos v Barry, 485 U.S. 312, 99 L. Ed 2d. 333 (1988).

(41) The Basic Law contains several articles that address the issue of "ties" between local NGOs and foreign NGOs post-1997. Unfortunately, these articles do not explicitly include Hong Kong human rights NGOs. Thus, it is unclear whether the human rights groups will be included within the limited protections contained therein. However, it is likely that Hong Kong human rights NGOs will be excluded from protection, because they will be deemed political, and thus restricted, under Article 23. The Basic Law contains a number of explicit references to NGOs, although these are unlikely to apply to human rights NGOs. For example:

The Government of the Hong Kong Special Administrative Region shall maintain the policy previously practiced in Hong Kong in respect of subventions for non-governmental organizations in fields such as education, medicine and health, culture, art, recreation, sports, social welfare and social work. Staff members previously serving in subvented organizations in Hong Kong may remain in their employment in accordance with the previous system. (Article 144)

On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs. (Article 145)

The relationship between non-governmental organizations in fields such as education, science, technology, culture, art, sports, the professions, medicine and health, labor, social welfare and social work as well as religious organizations in the Hong Kong Special Administrative Region and their counterparts on the mainland shall be based on the principles of non-subordination, non-interference and mutual respect. (Article 148)

Non-governmental organizations in fields such as education, science, technology, culture, art, sports, the professions, medicine and health, labor, social welfare and social work as well as religious organizations in the Hong Kong Special Administrative Region may maintain and develop relations with their counterparts in foreign countries and regions and with relevant international organizations. They may, as required, use the name 'Hong Kong, China' in the relevant activities. (Article 149)

(42) See News Update, CHINA RIGHTS FORUM, Winter 1996, at 43

(43) Id.

(44) See Human Rights Watch, Human Rights Watch World Report 1997 at 148 (1996).

(45) Mr Xi was released from prison in early 1997, and permitted to return to Hong Kong .

(46) .Judgment of December 17, 1996,The Times, January 1, 1997. The case arose after the Radio Authority of the United Kingdom banned Amnesty International (United Kngdom) from advertising on commercial airwaves "a campaign to bring the plight of people in Rwanda and Burundi to the notice of people in the United Kingdom." The Radio Authority banned the ads on the ground that the Radio Authority Advertising Code prevents advertising "by, or on behalf of, any body whose objects are wholly or mainly of a political nature." The Authority ruled that:

Advertisers which fall foul of this requirement include those which seek to influence public opinion on issues determined by a government or seek to promote a particular political philosophy in relation, for example, to the organization of society. The plight of political prisoners must . . . involve campaigning in order to influence the policies of governments around the world. [W]e are unable to satisfy ourselves that the objects of Amnesty International cannot be said to be "mainly of a political nature." We conclude, therefore, that advertising by the organization may not be accepted.

(47) A narrower definition of "ties" might be "institutional links," rather than the broader definition found in the Chinese version of the Basic Law. If such a definition is employed, "ties" would be interpreted more narrowly, and would not capture some of the relationships outlined in this section. The Monitor does not have any "institutional links" with overseas organizations in the same way as other Hong Kong NGOs, such as JUSTICE, the Hong Kong affiliate of the Geneva-based International Commission of Jurists. If "ties" is defined as "institutional links," then the Monitor would not be caught within the proscriptive scope of Article 23. However, it is possible that "ties" will be more broadly defined, and will sweep within its scope overseas connections of groups such as the Monitor, even though those groups may not have traditional "institutional links" with overseas organizations.

(48) The web page can be found at www.freeway.org.hk or members.hknet.com/~hkhrm.

(49) The mission, which took place from October 24-31, 1995, was headed by Senior United States District Judge Leonard B. Sand of the Southern District of New York, and included three members of the Committee: R. Scott Greathead (a member of the board of the Lawyers Committee for Human Rights), Monica McCabe and Maurice Nessen. The report was published in April 1996. Committee on International Human Rights of the Bar of the City of New York,Preserving the Rule of Law in Hong Kong After July 1, 1997: A Report of a Mission of Inquiry, 51 The Rec. of the Bar of the City of N. Y. 357 (1996).

(50) Id at 388.

(51) The NPC Preparatory Committee was created on January 26, 1996, pursuant to a resolution of the NPC, to prepare for the establishment of the HKSAR and to prescribe the specific method for the formation of the first HKSAR government and legislative council. Previously, the Preliminary Working Committee (PWC) had been established on July 2, 1993 to begin preparatory work for the resumption of sovereignty. The PWC, which put forward many suggestions to the Preparatory Committee (including recommendations to strip Hong Kong law of numerous human rights protections) became defunct when the latter was established in 1996.

(52) Under the current Public Order Ordinance, peaceful demonstrators must in many cases notify the authorities of their intent to demonstrate.

(53) Non-adoption of the 1992 Amendments would not automatically result in reinstatement of the pre-1992 legislation. If no new legislation were enacted as of July 1, there would be a vacuum, in that no extant legislation would expressly address the creation and operation of Hong Kong human rights NGOs. Whether this would constitute a real problem is in practice doubtful.

(54) South China Morning Post, April 1, 1997.

(55) South China Morning Post, March 26, 1997.

(56) Also, in the weeks before the publication of the Consultation Document, human rights NGOs received calls from the Hong Kong Policy Research Institute, which was founded by C.H. Tung's special adviser, Paul Yip Kwok-wah, inquiring about their structure and activities and asking for details of their registration.

(57) For responses by the Hong Kong Human Rights Monitor and the Lawyers Committee for Human Rights,see appendices II and III. Responses from the Bar Council of the Hong Kong Bar Association, the Law Society of Hong Kong, 24 members of the Faculty of Law at the University of Hong Kong, and a number of prominent legal professionals, are on file at the Lawyers Committee.

(58) For a detailed exposition of this argument,see appendix II.

(59) Comments by Michael Suen Ming-yeung, Secretary for Policy Coordination. South China Morning Post, May 15, 1997.

(60) s.2(3) In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong and for ancillary and connected matters.

s.3 Effect on pre-existing legislation:

(1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction.

(2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.

s.4 Interpretation of subsequent legislation:

All legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong.

(61) Article 23: "The HKSAR shall enact laws on its own to prohibit any act of treason, succession, sedition, subversion against the Central People's Government, or theft of state secrets to prohibit 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."

(62) See Article 16 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: "Nothing in...shall be regarded as preventing the High Contracting Parties form imposing restrictions on the political activity of aliens."

(63) 0 Jurisprudence from the International Labour Organisation (which has dealt extensively with freedom of association issues) has determined that when registration of a trade union is at the discretion of the government this amounts to a violation of ILO Convention 87.

(64) 0 Article 5 of ILO Convention #87 makes it clear that national trade unions must be permitted affiliations with international trade union organizations: ?Workers' and employers' organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers."

(65) 0 The ILO's Committee on Freedom of Association (CFA) has noted that appeals against refusal of registration to the relevant minister are insufficient and fail to guarantee the necessary objectivity; Case No. 1633, General Survey of the Reports on the Freedom of Association and the Right to Organize Convention (no. 87) 1948, and the Right to Organize and Collective Bargaining Convention (no. 98), 1949, ILO, Geneva, 1994.

(66) 0 Kivenmaa v. Finland, Communication No. 412/1990, March 31, 1994.