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Link to UNCHR
(E/CN.4/2001/NGO/67)
COMMISSION ON HUMAN RIGHTS
Fifty-seventh Session
Item 11(c) of the Provisional Agenda
CIVIL
AND POLITICAL RIGHTS
THE
QUESTION OF FREEDOM OF EXPRESSION
Written
statement submitted by the Asian Legal Resource Centre
a
non-governmental organization with general consultative status
Freedom
of assembly, the Public Order Ordinance and
academic
freedom in Hong Kong SAR
1.
On August 15, 2000, five university students in Hong Kong Special
Administrative Region (Hong Kong SAR) of the People's
Republic of China were arrested under the Public Order Ordinance
legislation. They were accused of taking part in, and helping
organise, an illegal assembly and obstructing police duties on
June 26, 2000. On 28 September 2000, five university students
were arrested for unauthorised assembly and for their part in a
protest against tuition fees on April 20, 2000. Three of them
were also among the five students arrested in the former case.
2.
The arrests of these students aroused widespread public concern.
Many local human rights organizations, the Hong Kong Bar
Association and scholars made statements against the arrests and
questioned whether they were a politically motivated attempt to
target people protesting against the government. They expressed
concern over the use of the Public Order Ordinance to suppress
dissent. They pointed out that the Public Order Ordinance is a
violation of freedom of assembly and should be amended.
3.
The provisional legislature amended the Public Order Ordinance in
the middle of the night, several hours after power was
transferred from the British colonial administration to the SAR
Government of China in 1997. This law is extremely important in
ensuring people's freedom of expression and assembly. Its
rapid change gave the impression that the desire and intent of
the incoming administration was to alter the Public Order
Ordinance to use in control of demonstrations, rallies, and
organisations that it feels might be politically threatening.
4.
The amendments to the Public Order Ordinance mean that:
a.
Organizers of demonstrations with more than 30 persons are
required to obtain a "notification of no objection"
from the police at least seven days before a demonstration. This
notice requirement is very harsh, although police may exercise
discretionary power. In effect, it is an indirect permit system,
although the government denies this. It empowers the police to
reject an application on national security grounds. Under the
guidelines, the subject matter of a demonstration - for
example, whether it advocates independence for Tibet or Taiwan
- can be taken into account. Thus, political conviction,
rather than conduct, is made grounds for limits to the freedom of
expression.
b.
Police have a wide range of powers to impose conditions on and
stop demonstrations. Article 15(2) states that, "The
Commissioner of Police may, where he reasonably considers it
necessary in the interests of national security or public safety,
public order or for the protection of the rights and freedoms of
others, impose conditions in respect of any public procession
notified..." Though most demonstrations have been allowed
to proceed, they have experienced excessive policing.
Demonstrators have often been restricted to "designated
demonstration areas", out of sight and hearing ranges of
their targets, behind heavily guarded barricades. Demonstrators
usually find this unacceptable, which has often resulted in
conflict, arrest and prosecution.
c.
The maximum penalty for failure to notify the police of a
demonstration or rally is five years imprisonment. This is too
harsh for an offense that should be decriminalised. Such an
excessive penalty goes against all internationally accepted
practices. It cannot be emphasised enough that there should be no
prison sentence for such an infraction: the only "crime"
is failure to get permission from the police to exercise one's
freedom of expression and assembly.
5.
Although the Department of Justice finally gave in to public
pressure and decided not to prosecute the students charged under
the Public Order Ordinance, the legislation in its present form
denies people the right to express themselves and peacefully
assemble. It transforms this right into a privilege granted by
the police. The requirement to notify the police of a
demonstration or rally must be separated from the giving to
police the power to approve or disapprove of people's right
to express their views.
6.
A second area of concern for freedom of expression in Hong Kong
SAR is threats to academic freedom by political agents. On July
7, 2000, Dr. Robert Chung Ting-yiu, Director of the Public
Opinion Programme of the Journalism and Media Studies Centre at
Hong Kong University (HKU), claimed that he had been politically
pressured by Chief Executive Tung Chee-hwa, through a "special
channel", to discontinue public opinion polls on Tung's
popularity and the Hong Kong government's credibility. A
week later Chung revealed that the "special channel"
was the head of the university, Vice Chancellor Cheng Yiu-chung,
and his deputy, Pro Vice Chancellor Wong Siu-lun. Although the
two HKU administrators quickly denied the allegations,
controversy immediately erupted over questions of government
interference in the work of academics. As a result, the
university set up a three-member panel to investigate Chung's
claims. In August, the panel heard that Andrew Lo Cheung-on, a
senior special assistant to the chief executive, had met with
Vice Chancellor Cheng to discuss Dr. Chung's public opinion
polls. Later Professor Wong met twice with Dr. Chung, and
allegedly pressured him to stop the polls.
7.
The panel report of September 1 stated that they found Robert
Chung to be "an honest witness who was telling the truth in
relation to the matters he is complaining about." However,
the panel found the chief executive's senior special
assistant to be a "poor and untruthful witness" and
that neither he nor the vice chancellor "disclosed the full
and truthful extent of what was said in [their] meeting..."
They argued, "It is this failure to have open discussion
through recognised channels that weighs heavily with the panel
when considering whether these were illicit endeavours to silence
Dr. Chung because of political considerations. We have no doubt
that political consideration was the principal reason that
motivated the [meetings]." The vice chancellor and his
deputy resigned just before the university council met to vote on
whether or not to accept the panel's report. But because of
Chief Executive Tung's refusal to testify and the lack of
credibility attributed to Lo by the panel, questions remain
unanswered about their roles.
8.
Naturally, this episode has evoked concerns about academic
freedom as well as guarantees to freedom of speech in Hong Kong
three years after its sovereignty was transferred to China. Do
academics, for instance, have the space to conduct opinion polls
about the government and its leader? Is a mechanism for gauging
the views of the people of Hong Kong, of feeling the pulse of the
community, being restrained? Is an avenue for expressing one's
views being suppressed? Most worrisome is that features of
Mainland China's political culture are perhaps being
imported, consciously or unconsciously, by Hong Kong's
officials: a political culture built on suffocating control of
dissent, giving the false appearance of political stability and
consensus.
9.
The Asian Legal Resource Centre calls upon the Commission to
encourage the HKSAR Government to amend the Public Order
Ordinance such that a notice of no objection from the police be
no longer required before holding a public demonstration, and to
limit the power of the police in regulating demonstrations.
Posted on 2001-01-30
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