APPENDIX 5
Memorandum submitted by the Hong Kong
Human Rights Monitor
THE
SOCIETIES ORDINANCE
99. The Societies Ordinance governs how societies
may get lawful status in Hong Kong. It was first enacted in 1949
to control both triad societies and, perhaps more importantly,
political groups at the time of the Communist takeover in China.
The enactment was a significant departure from the practice in
the United Kingdom where people could associate freely (and still
can) without the need to register with nor to notify the authorities.
It sought to restrain the activities of pro-Communist forces,
pro-Nationalist forces and other possible opposition in Hong Kong
within the same scheme as that for the triads.
100. Up until 1992, the Societies Ordinance,
provided for a draconian scheme of control and supervision inconsistent
with international human rights standards. It was amended substantially
that year in order to bring it into line with the provisions of
the Bill of Rights.
101. The pre-1992 Ordinance required all local
societies, except those registered under other statutes like the
Trade Unions Ordinance or other exempted societies, to apply for
registration or exemption with the "Registrar of Societies"
after its establishment. Societies established solely for religious,
charitable, social or recreational purposes or as a rural committee
(i.e., a villagers association in the New Territories) might be
exempted from registration, but had to specifically apply for
such an exemption. Lists of registered societies and exempted
societies were kept in two separate registers for public inspection.
No society could undertake any activities until it had been registered
or exempted.
102. The Registrar was the Commissioner of Police,
or in certain cases the Secretary for Security. The Registrar
was empowered to refuse or cancel a registration or exemption
on various grounds including:
— where the office-bearer or a group
of members within the society had been convicted of or connected
to an offence against the Ordinance;
— where the society's constitution
did not contain matters required by the Ordinance or the Registrar;
— where a local society was connected
to any political organisation established outside Hong Kong;
— where the society was likely to be
used for any purpose prejudicial to peace, welfare, or good order
in Hong Kong;
— where the society influenced or attempted
to influence the conduct of management of any school, or any teacher
or students, and such influence was political or was prejudicial
to the conduct of such school or welfare, or good order of such
teacher or student.
103. Office-bearers of a society whose registration
or exemption had been cancelled were not allowed to become office-bearers
of other societies unless approved by the Registrar. Appeal against
such decisions could be made to "the Governor in Council"
(the Governor in consultation with his Executive Council). The
Governor in Council might also dissolve a registered or exempted
society if he was satisfied that the society was being used for
purposes "incompatible with peace, welfare or good order
in Hong Kong."
104. Registered societies were subject to more
stringent controls and interference than exempted societies. The
Registrar had power to enter their offices and meeting places
at any time including their meeting time, and might even prohibit
the use of any place for their meeting or place of business.
105. All societies, registered or exempt, were
subject to many outrageous powers of the authorities to supervise,
interfere and even ultimately control them in many respects. Prior
approval by the Registrar was required for amendments to the constitution
of a society. The Registrar could also order its constitution
to be amended as he so prescribed. He had the power to require
information on constitutions and rules, its list of office-bearers
and members and their particulars, number and venues of its meetings
held, and any other information about a society which he might
specify. The Registrar could order a society to desist from activities
which appeared to him inconsistent with its objects. These powers
of control were supported by offences with stiff penalties created
to ensure compliance.
106. If the Registrar believed that a society
was being used for purposes prejudicial to peace, welfare, or
good order in Hong Kong he might, with or without force, enter
and search a place suspected to be its place of meeting or business
and search persons there or escaping from there.
107. All triad societies or societies which
used triad rituals were outlawed as unlawful societies but so
also were local societies which were not a registered or exempted
society and had not applied for registration or exemption within
14 days after their establishment.
108. Persons who were members of or assisted
an unlawful society, or attended its meeting, or knowingly allowed
its meeting on their premises committed criminal offences.
109. Any police inspector or officer of higher
rank, could, with or without force, with or without assistance,
enter and search any place including the home of any person, seize
suspected documents and other things connected to an unlawful
society, and arrest all persons there if he had reasons to believe
that a meeting of the society was being held there or its documents
and other artifacts were there. The property of an unlawful society
could be forfeited.
110. Furthermore the Registrar had the power
to summon any person whom he believed to be able to give him information
on an unlawful society. The person summoned was required by the
Ordinance to produce all documents he possessed and answer truthfully
on oath all questions put to him.
111. A foreign society was deemed to establish
as a local society and required to register under the Ordinance
if it operated in Hong Kong.
112. The registration system effectively amounted
to a requirement that the consent of the authorities be gained
in order to operate. The grounds for refusing registration, exemption
or dissolution were vague and wide leaving too much unguided discretion
to the authorities. They were totally inconsistent with international
human rights standards as laid down in the International Covenant
on Civil and Political Rights.
113. The colonial government was in a dilemma
attempting to bring the Societies Ordinance into line with the
Bill of Rights Ordinance while trying to leave as much power as
possible to itself. The uneasy compromise resulted in a 1992 Ordinance
with restrictive provisions and severe penalties, which were at
odds with international human rights standards, but which was
still the most liberal version in Hong Kong's history.
114. The registration system was replaced in
the 1992 legislation with a notification system. The Registrar
was renamed "Societies Officer" who was again the Commissioner
of Police. Within a month after the establishment or deemed establishment
of a local society, it was required to inform the Societies Officer
in writing of its name, objects, addresses of its principal place
of business and premises it occupied, and names of office-bearers
of the society. The Societies Officer would then list the name
and addresses of the society in a list of all societies open to
inspection free of charge at his office. Similar notification
was also required in setting up a branch. Every office-bearer
of a group committed an offence if it failed to notify the Societies
Officer, although the group or its branch would not automatically
become an unlawful society unless a prohibition order was made.
115. In processing a notification the Societies
Officer could require a society to change its name within a specified
time if its name was identical or similar to another group or
was misleading. The society so aggrieved might appeal to the Secretary
for Security.
116. The 1992 legislation provided that, if
the Societies Officer "reasonably believes" that a society
"may be prejudicial to the security of Hong Kong, or to public
safety or public order", he was required to notify the Secretary
for Security and might "recommend the making of an order
prohibiting the operation or continued operation of the society".
The Secretary for Security might then gazette a prohibition order
after, unless impractical, affording the society an opportunity
to be heard or to make written representations. The society or
its members could appeal against the prohibition to the Governor
in Council. All societies under a prohibition order in force,
were unlawful societies. Being members or office-bearers of an
unlawful society, inciting others to become so, assisting it financially
or by other means, attending its meeting, or knowingly allowing
a meeting of it or its members, were criminal offences.
117. The 1992 Ordinance no longer empowered
the Governor to dissolve a society. The power to prohibit any
society from having connection with any political group outside
Hong Kong was also abolished, which caused criticism by China.
118. On the recommendation of the Societies
Officer, an office-bearer of an unlawful society, whether convicted
or not, and a person convicted as a member of an unlawful society,
might be prohibited by an order of the Secretary for Security
from becoming office-bearer of any other society for a period
of five years unless with the consent of the Societies Officer.
A person aggrieved could appeal to the Governor in Council. Contravening
such prohibition was again an offence.
119. The Societies Officer's powers of entry,
search and seizure under the 1992 Ordinance provide that where
he reasonably believes that it is necessary to do so in connection
with the performance of his functions under this Ordinance, he
may at all reasonable times enter into any place or premises which
he has reason to believe is, or is kept by, any society or by
any of its members as a place of meeting or place of business.
The "necessity" required by the Ordinance is all from
his point of view and is not the objective necessity required
by international standards. The "reasonableness" so
required, perhaps except the one with respect to time, was only
reasonable to the Commissioner of Police himself. There was no
safeguard to guide the exercise of the Officer's "discretion".
The power does not require any warrant from a magistrate except
when the place is also used for dwelling purposes. The language
of the provision is so vague that it can be used to harass legitimate
societies and their members.
120. The Societies Officer's power to require
information was restricted to such information as he might reasonably
require for the performance of his functions under the Ordinance.
A new legal obligation was imposed on a society to notify the
Societies Officer of any change in its name, objects, office-bearers
or principal place of business within a month of the change. Every
one of its office-bearers committed an offence if a society failed
to do so.
121. Although the Ordinance represented a great
step forward in the realisation of the freedom to associate, its
provisions were still not up to the standards set in the ICCPR.
Some of the problems of the 1992 Ordinance are considered below
together with the 1997 amendments by the incoming administration,
which has retained most of the 1992 provisions but expanded many
of their weaknesses.
122. The 1997 amendments came against an unfortunate
background as part of a package of China's effort to emasculate
the Hong Kong Bill of Rights. Like the Public Order Ordinance,
the Chinese authorities used Article 160 of the Basic Law to justify
amendments to the Societies Ordinance on the grounds that it was
inconsistent with the Basic Law. It is hard to see the logic in
this link.
123. Also Article 23 of the Basic Law requires
the enactment of legislation in the HKSAR "to prohibit
foreign political organisations or bodies from conducting political
activities in the Region, and to prohibit political organisations
or bodies of the Region from establishing ties with foreign political
organisations or bodies". Chinese officials have repeatedly
said that Hong Kong should not be used as a base of subversion
against China. Sympathizers of Beijing have also criticised the
fact that a local society was no longer prohibited from having
connections with foreign political groups. The message was clear—China
wanted to narrow down the freedom of association in Hong Kong
in breach of the promises made to protect freedoms and rights.
124. Against this background, CH Tung, then
Chief Executive Designate, published in April 1997 a consultation
document setting out his proposals to amend the Societies Ordinance.
He proposed to reintroduce a system of registration, and to add
"public health or morals", "protection of rights
and freedoms of others", and to replace "security of
Hong Kong" in the 1992 legislation with "national security",
as grounds for prohibiting societies. Moreover, political societies
in Hong Kong having "connections" with "foreign
political bodies" or with "aliens" would be prohibited.
Political societies were widely defined to include all those whose
members included members of the Legislative Council and whose
activities included assisting those members with their functions
in political activities relating to government institutions and
comment on public affairs as their main objectives. "Connections"
were also so vaguely and broadly defined as to cover cases where
any group:
— directly or indirectly, affiliated
with foreign political groups, or received financial assistance
from any foreign organisations or individuals;
— had any of its policies determined
by, at the suggestion of, or in collaboration with foreign political
organisations; or
— had their management or decision
process controlled, directed, influenced, or participated directly
or indirectly in by foreign political bodies.
125. Foreign political organisations would include
any foreign or Taiwan government, its political subdivision and
its instrumentality, foreign political parties, and international
political organisations.
126. Such definitions would have stopped most
legitimate contacts by local societies working on issues of public
interest with international or foreign bodies and even foreigners.
A group promoting human rights standards as elaborated by UN treaty
bodies in public policy could be prohibited. The Hong Kong branch
of Amnesty International would need to sever ties with its parent
organization. A local socialist political party would find it
dangerous even to draft a joint position paper on labour rights
with a foreign counterpart. An Australian lawyer, an "alien",
practising in Hong Kong paying his subscription to his professional
body, the Law Society, would result in it being banned.
127. These proposals were so extreme and ill-thought
out that there was strong public outcry both in Hong Kong and
in the international community.
128. Contrary to what most people had expected,
the Chief Executive Designate responded to the public pressure
with quite substantial concessions particularly in relation to
the definitions of local and foreign political organisations and
that of "connections".
129. Under the amendments effected on 1 July
1997, "political body" means a political party or an
organization purporting to be one, or an organization whose principal
function is to promote or prepare a candidate for an election.
"Foreign political organization" is limited to foreign
political party or government and its political subdivision or
agent. The reference to "aliens" has been removed. "Connections"
are also narrowed down to all direct or indirect financial support
or sponsorship from, affiliation to, participation in decision
making by, or having policy determined by foreign political groups.
130. These concessions may have removed most
of the immediate threats but there are serious dangers in the
1997 amendments enacted, controversially, by the Provisional Legislative
Council.
131. One of the new grounds of prohibition introduced
by the 1997 amendments is that of being "a political body"
having "connection with a foreign political organization
or a political organization of Taiwan." Thus, societies with
foreign links may be discouraged from fielding candidates in elections
or trying to have elected representatives of their own to promote
their causes neglected by mainstream political parties. This restriction
also gives the police an excuse to inquire into the expenditure,
income, and sources of income, not only of political parties,
but of all societies allowing unnecessary intrusion.
132. The previous offence introduced by the
colonial government of failure in providing information which
the Societies Officer "may reasonably require for the performance
of his functions under [the] Ordinance" was expressly extended
to cover such financial and related information. It may well be
that the police are limited by the fact that it is unreasonable
to request information on finance from a group which is not involved
in elections. Nevertheless, unless a society is familiar with
the law and with legal assistance it is difficult to resist a
request for such information.
133. As the restriction covers not only election
contributions, it has a serious effect on political parties, especially
in a place without full democracy. A political party may be deterred
from many legitimate activities, for example, endorsing a declaration
drafted by foreign parties sharing similar platforms, or engaging
in joint projects for comparative studies to improve social services
with foreign parties funded by a better-off partner. Moreover,
as the police are empowered to monitor the activities and financing
of political parties, an authoritarian government could starve
an opposition party by contacting donors to "verify"
donation information. All societies should have the rights to
achieve its object by political and non-political means free from
unnecessary restrictions. This new restriction finds no basis
in the ICCPR.
134. Another serious problem arises from the
grounds for prohibiting societies in the revived registration
system. The 1997 amendments provide that if the Societies Officer
"reasonably believes" that the prohibition of
a society "is necessary in the interests of national security
or public safety, public order (ordre public) or the protection
of the rights and freedoms of others", he may make a
recommendation to the Secretary for Security who may then prohibit
it.
135. Under international law legitimate restrictions
of rights are limited to those necessary to meet sufficiently
important social exigencies to justify their imposition. It is
the authorities' duty to prove that there are such social needs
and legitimate aims and that they are sufficiently grave. Restrictions
must have rational connections to those needs and aims, and must
be proportional to them, and cause minimal impairment to the rights.
Such restrictions can only be prescribed or imposed by law, which
must be clear and unambiguous enough that people know how they
are affected and are able to predict the consequences of their
own decisions and acts. Falling short of any of such requirements,
a restriction is unlawful. Simple incorporation of the ICCPR grounds
into domestic laws will exaggerate the permissible scope of restriction
and is a misuse of the Covenant.
136. The use of the term "national security"
is particularly objectionable because the concept has frequently
been used in China to criminalise the peaceful exercise of the
rights of expression and to persecute those with legitimate demands
like democracy and human rights. Its inclusion raises fears of
extension of such Mainland Chinese practices to Hong Kong especially
in the light of Article 23 of the Basic Law.
137. The consensus of international jurists
as enumerated in the Siracusa Principles is that national security
"cannot be invoked as a reason for imposing limitations to
prevent merely local or relatively isolated threats to law and
order". It may only be invoked "to justify measures
limiting certain rights only when they are taken to protect the
existence of the nation or its territorial integrity or political
independence against force or threat of force". Its inclusion
in the Societies Ordinance and the Public Order Ordinance is therefore
unwarranted as it is difficult to suggest that a society or a
demonstration in Hong Kong will threaten the existence of China.
If there is any local and isolated threat to law and order it
can be dealt with under the heads of public order and public safety.
138. The Johannesburg Principles, which are
concerned more with freedom of expression, also stress the importance
of the requirement of force in imposing restrictions on the ground
of national security. They state that freedom of expression may
be punished as a threat to national scurity only if a government
can demonstrate that the expression is intended to incite violence,
that such violence is likely to be incited, and that there is
a direct and immediate connection between the expression and the
likelihood or occurrence of such violence.
139. However, the ground of "national security"
was introduced without any qualification with regard to the requirement
of violence or force despite local and international criticism.
A concession was made in respect of the definition of "national
security" in that it was defined as "safeguarding of
the territorial integrity and the independence of the People's
Republic of China" while linking its meaning to that in the
ICCPR. Logically, it is difficult to understand how the HKSAR's
intention to exclude the requirement of force could be reconciled
with the ICCPR's meaning of "national security" as outlined
in the definition. It is to be hoped that the court would be prepared
to impute the requirement of force in the light of the wording
of the definition in the 1997 amendments which link the concept
to the ICCPR. However the Hong Kong judiciary's narrow interpretation
of constitutional protection of rights reduces the prospect of
such judicial protection.
140. Yet another serious consequence of including
the national security ground is that it again fundamentally changes
the role of the police force. The police are now required to judge
whether a society is a threat to the territorial integrity and
the independence of the People's Republic of China rather than
regulating on grounds of public order and public safety with which
they are familiar. As far as the Monitor knows, "the security
of Hong Kong" ground in the 1992 legislation has been ignored
in practice. It remains to be seen whether this will be the case
under the Chinese rule. Clearly, this is very unsatisfactory because
it means societies are at the mercy of the authorities instead
of having genuine legal protection.
141. The Societies Officer has the power to
require information reasonably required for the performance of
his functions under the Societies Ordinance. Once his functions
include such political monitoring, it may be "reasonable"
for the police to require extensive information from societies
critical of China or groups having "politically controversial"
members. Societies, especially opposition political parties, will
be under serious threat if the authorities decide to be "proactive".
142. According to a news report, a spokesperson
of an association of police officers has voiced his reluctance
to take up the responsibility of deciding whether to prohibit
public gatherings on the ground of national security as front
line officer, saying such issues should only be decided by senior
management.
143. Both the 1992 and 1997 legislation suffer
from other defects. They punish equally breaches of the law by
criminal triad societies and lawful societies whose officers commit
offences through oversights. They probably do not meet the international
law requirement that any limitations on rights are required to
be proportional to the problem they are designed to meet—the
principle of proportionality—in relation to penalties for
non-triad offences. Every office-bearer of a society commits an
offence punishable by a fine of HK$10,000 on summary conviction
for simply being disorganized, i.e., if the society fails to notify
the Societies Officer of a change in its name, objects, office-bearers,
or principal places of business within a certain time. The fact
that the offence of attending the meeting of an unlawful society
(not being a triad society) can be committed without any knowledge
that the society is unlawful (as opposed to the express requirement
of knowledge in the crime of allowing the meeting of an unlawful
society on premises) seems outrageous. An office-bearer of a society
which is prohibited while he is in office might be prohibited
from becoming office-bearer to another society for five years
by the police even if he has never been convicted, which is contrary
to the principle of presumed innocence.
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