PLC Paper No. CB(2) 6/97-98
(These minutes have been cleared
with the Chairman)
Ref : CB2/PL/HA+SE
LegCo Panel on Home Affairs
and LegCo Panel on Security
Minutes of Joint Meeting
held on Friday, 25 April 1997 at 10:30 am
in Conference Room A of the Legislative Council Building
Members present :
- LegCo Panel on Security
- Hon James TO Kun-sun (Chairman)
- Hon CHEUNG Man-kwong
- * Emily LAU Wai-hing
- * Hon Zachary WONG Wai-yin
- Hon Andrew CHENG Kar-foo
- LegCo Panel on Home Affairs
- Hon LEE Wing-tat
- Hon Ambrose LAU Hon-chuen, JP
- Hon NGAN Kam-chuen
- Dr Hon John TSE Wing-ling
- Hon Mrs Elizabeth WONG, CBE, ISO, JP
Members absent :
- LegCo Panel on Security
- Hon Mrs Selina CHOW, OBE, JP
- Hon Fred LI Wah-ming
- Dr Hon Philip WONG Yu-hong
- Hon Howard YOUNG, JP
- * Hon CHEUNG Hon-chung
- * Hon Albert HO Chun-yan
(Chairman, Home Affairs Panel)
- Hon IP Kwok-him
- Dr Hon LAW Cheung-kwok
- * Hon Bruce LIU Sing-lee
- * Hon LO Suk-ching
(Deputy Chairman, Home Affairs Panel)
- Hon Margaret NG
- Hon TSANG Kin-shing
- Hon Lawrence YUM sin-ling
- LegCo Panel on Home Affairs
- Hon Christine LOH Kung-wai
- Hon LEE Cheuk-yan
- Hon LAW Chi-kwong
(*also a member of LegCo Panel on Home Affairs)
Public Officers attending :
- Mr Philip CHAN
- Principal Assistant Secretary for Security E
- Mr Ian DEANE
- Senior Assistant Solicitor General
Attendance by invitation :
- The Law Society of Hong Kong
- Mr Christopher CHAN
- Mr Patrick MOSS
- Secretary General
- Hong Kong Bar Association
- Ms Audrey EU, QC
- Mr Philip DYKES, QC
- Council member
- Mr Johannes CHAN
- Council member
- Mr P Y LO
- Member of Special Committee on Human Rights
and Constitutional Affairs
- Hong Kong Human Rights Commission
- Mr HO Hei-wah
- Miss PANG Wai-sum, Diana
- Miss KWOK Hoi-yee, Rita
- Miss WONG Ka-ling
- Hong Kong Human Rights Monitor
- Mr Paul HARRIS
- Mr LAW Yuk-kai
- Dr Nihal Jayawickrama
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
Staff in attendance :
- Mr Alan YU
- Senior Assistant Secretary (2) 1
I. Election of Chairman
Mr James TO Kun-sun was elected Chairman of the joint Panel meeting.
II. Public hearing on the "Civil Liberties and Social Order Consultation Document" issued by the HKSAR Chief Executives Office
Presentation by deputations
The Hong Kong Government
2. Principal Assistant Secretary for Security E outlined the Administrations comments on the Consultation Document as set out in the Executive Summary of the paper.
The Law Society of Hong Kong
3. Mr Christopher CHAN, President of the Law Society of Hong Kong apologised for not having a written submission available for the meeting but agreed to provide the Panels with a copy when it had been finalised. However, he made the following points :
- The Law Society supported the basic principles behind the amendments but it was not convinced that there would be a legal vacuum if the relevant legislation was repealed.
- The proposed amendments introduced new grounds to restrict freedoms of assembly and association such as national security, public health, public moral, etc. allegedly based on those permitted by the International Covenant on Civil and Political Rights (ICCPR). It was a matter for consideration whether such restrictions were necessary, whether the measures to be taken were justifiable, and whether the limitations imposed on the basic rights were commensurate with the extent of the problem.
- On registration, whilst the Law Society was not fully convinced that a legal basis was necessary, it considered that there should be a "deeming" provision on applications for registration. An independent body should be set up to consider appeals.
- The Law Society did not wish to see foreign control over Hong Kongs political organizations. However, it considered that "foreign" should include territories across the border. On the question of financial contributions, the Law Society considered it to be more appropriate to require organizations to disclose their source of donations so that the public could judge for themselves whether these organizations were subject to undue foreign influence.
- On the Public Order Ordinance, the Law Society considered that the number of people in public and private places for assembly and procession should be extended to a realistic figure which the Police could control. Moreover, there should be a deeming provision that if no notice of objection was issued within a certain period of time, the Police should be deemed to have no objection.
(Post-meeting note : The Law Societys submission was sent to members vide LegCo Paper No. CB(2) 2114/96-97 on 2 May 1997.)
The Hong Kong Bar Association
(LegCo Paper No. CB(2) 1982/96-97(01))
4. Ms Audrey EU, QC, Chairman of the Hong Kong Bar Association referred to recent advertisements in the press protesting against or pledging support for the proposed legislative amendments and pointed out that consultation was not a statistical game. She stressed that the aim of the present consultation was to seek publics views, not on whether a balance should be struck between the protection of civil liberties and the need to maintain social order, but on how this could be achieved. Another major principle was foreign influence on local politics but the emphasis should not be on whether a society should be subject to foreign influence, but on what bad influence was and how to prohibit it. She said that the Bar Association had just finalised a submission a copy of which had been forwarded to the Chief Executive (Designate)s Office. Copies of the submission were tabled at the meeting. Mr Johannes CHAN then outlined the main points of the submission.
Hong Kong Human Rights Commission
(LegCo Paper No. CB(2) 1982/96-97(03))
5. Mr HO Hei-wah, Chairman of the Hong Kong Human Rights Commission said that he did not wish to repeat the contents of their submission or the arguments put forward by the Hong Kong Bar Association. He pointed out that the existing legislation did not comply with the spirit of ICCPR because it had given too much power to the Government. He briefed members on a recent meeting which members of his Commission had attended with the Secretary for Justice (Designate) and the exchanges of views on some of the concepts and principles relating to the proposed legislation, in particular the proposed amendments vis-a-vis the ICCPR.
The Hong Kong Human Rights Monitor
(LegCo Paper No. CB(2) 1982/96-97(04))
6. Mr Paul HARRIS, Chairperson of the Hong Kong Human Rights Monitor referred to their submission which was published on that day. He said that the proposals put forward by the Chief Executive (Designate)s Office would impose tighter restrictions on the people of Hong Kong than the people in China were subject to at present. He cited a number of examples indicating that organizations in China were currently receiving funding for political activities. The Monitor saw nothing wrong with the existing legislation in either area and considered that the proposed amendments would make matters worse. The proposals had been extremely ill-thought out and had the effect of banning most, if not all, the organizations present at the meeting that morning.
(LegCo Paper No. CB(2) 1982/96-97(05))
7. Dr Nihal Jayawickrama, Chairman of Justice briefed members on his associations views as set out in the submission.
8. The Chairman invited members to seek clarifications from the deputations or to make any comments if they so wished. In reply to Mr Andrew CHENGs questions, Mr Johannes CHAN opined that Articles 23 and 39 of the Basic Law were not necessarily in conflict. He said that any legislation made by the HKSAR on the basis of Article 23 must be bound by Article 39. On the question of notice of no objection, he confirmed that the Bar Associations view was that if no notice of objection was issued by the Police within a certain period of time, the Police should be deemed to have no objection. At the request of the Chairman, Mr CHAN clarified that the Commissioner of Police could not prohibit a public demonstration in itself; he could regulate only on the time, place and manner of public demonstrations. An example was in Queensland of Australia where an injunction would have to be sought to prohibit a public demonstration. With regard to Article 23 of the Basic Law, Mr CHAN said that the basic principle of the Bar Association was that foreign political organizations should be prohibited from participating directly in the political decision process.
9. Mrs Elizabeth WONG commented that the current consultation exercise would be like making voices in the wilderness considering the number of members present at the meeting who would no longer be serving in the Legislature after 30 June 1997. Under the sovereign power of the Chinese Government, there was very little that people could argue unless the real essence of ICCPR was understood. She asked what the Panels would do with the comments received. The Chairman pointed out that a similar exercise had been held previously on the Garrison Law issue. He suggested that comments of the deputations be sent to the Chief Executive (Designate)s Office. Members of the joint Panels might suggest views on the issue if they so wished.
10. Ms Emily LAU asked whether deputations had any views on the Provisional Legislature commencing legislative process before 1 July 1997 as that was a related issue of controversy. Ms Audrey EU said that the Bar Association had already expressed its views previously on a number of issues including the Provisional Legislature and the abrogation of local legislation by the Peoples Congress. The present submission was aimed at providing the Bar Associations views on the specific proposals of the Chief Executive (Designate)s Office to amend the Public Order Ordinance and the Societies Ordinance. The views expressed in the submission would not in any way affect the stance of the Bar Association on the various issues mentioned, which remained unchanged. Mr Christopher CHAN pointed out that the Law Society had not considered the question of the Provisional Legislature passing legislation before 1 July 1997 when formulating its views on the present issue. However, it had all along held the view that the Provisional Legislature had no legal basis. It also considered that there would not be any legal vacuum even if part of the Bill of Rights Ordinance, the Societies Ordinance and the Public Order Ordinance had been abrogated.
11. Mr Zachary WONG asked how to avoid being prosecuted for accepting unknowingly donations from an alien. Ms Audrey EU commented that according to the proposed amendments, accepting financial contributions from an alien would not be an offence. It might only result in the Societies Officer refusing to register the society if the Officer considered that such acceptance of financial support was not in the interests of national security or public safety, public order or the protection of public morals in the absence of evidence to the contrary. The Bar Associations view was that the proposed amendment was unreasonably wide and vague and that too much discretion was given to the Societies Officer.
12. Dr John TSE referred to the comments made earlier by Professor HARRIS regarding organizations in China accepting overseas funding for political activities. He asked whether more information was available as that was worthy of reference for considering the issue under discussion. He wondered whether anything could be done from the legal point of view if the proposed amendments were enacted. Professor HARRIS said that the list of projects could be made available to members after the meeting. (Post-meeting note : The list is attached as Annex to these minutes.) On the second question, Mr Johannes CHAN said that any legislative provisions which were considered to be in violation of the Basic Law would face legal challenges in court.
13. The Chairman said that the joint Panels would not make any conclusions on the issue in the absence of a quorum. He thanked the deputations for their views and undertook to forward their submissions to the Chief Executive (Designate)s Office.
(Post-meeting note : The submissions of the deputations were sent to the Chief Executive (Designate)s Office on 29 April 1997.)
III. Close of meeting
14. The meeting ended at 12:35 pm.
Provisional Legislative Council Secretariat
3 July 1997
Last Updated on 21 August 1998