|
Orderly Discussion On Public Order
The Deputy Secretary for Security's ("the
Deputy Secretary") effort in bringing out some of the more
important issues relating to the Public Order Ordinance
("the Ordinance") in his article printed in the SCMP on
14th December 2000 ("the Article") must be applauded.
He has demonstrated convincingly that important constitutional
and public issues can be publicly discussed in a calm and
rational manner in the absence of political rhetoric, which,
I am saddened to note, has so often marred the current debate
on the Ordinance.
Take, for example, some of the submissions
received by LegCo at its Panel hearing on Security from
some "private organizations". Not only they are highly politically
charged, but some of them are word for word identical! A
phrase which I see time and again appearing in these submissions
is that "the law should be strict, but application thereof
can be lax". It is said that this is a "basic and guiding
principle" of enacting laws and enforcement of laws. I beg
to differ.
It is a fundamental cornerstone of the
Rule of Law that laws must be fairly and consistently applied.
It is particularly dangerous if laws are allowed to be applied
selectively by the police, the executive arm of the state.
A particular law will command no respect in a society if
it can be applied loosely or not at all to people in power
or those who have the "right" political background but strictly
and harshly on the ordinary people or people with the "wrong"
political inclinations.
The Deputy Secretary at the end of the
Article said the administration could not see grounds on
which the current law could be faulted. After all, he rhetorically
asked, "with more than 6,000 public rallies having been
held since reunification ......... does anyone seriously
believe the Public Order Ordinance has stifled or threatened
the right to take part in such rallies?"
The answer is: not before 1st
October 2000. But the highly publicized arrest of the students
changed all that. Whereas some people before the arrest
rightly or wrongly think that the notification requirements
of the Ordinance was a dead letter and thus posed no threat
to the right of assembly or demonstration, everyone now
has to sit up and take notice of the strong warnings from
both the Police and the Security Bureau. It also helps everyone
to focus on the constitutionality of some of the provisions
of the Ordinance.
The Bar Association's submission paper
on the Ordinance, which can be viewed from our website (www.hkba.org),
draws attention to, amongst other things, the apparent iniquity
of threatening a participant of a peaceful demonstration
with a heavy penalty of up to five years imprisonment simply
on the ground that the organizers of the demonstration may
not have strictly adhered to the notification requirements
of the Ordinance. The Deputy Secretary seems to think that
this is necessary since it will be difficult to find out
who are the organizers if the latter do not give the requisite
notice to the police.
This argument is unreal. First, even if
notice is given, under the current law, a demonstration
is unauthorized if the 7-day notification requirement had
not been complied with. Secondly, I have yet to hear of
a demonstration which is not organized by some organization
or body of individuals which people can identify. Thirdly
and in any event, with respect, it puts the matter on its
head to suggest that peaceful demonstrators should be heavily
punished because it would make the detective work of the
police easier.
It is then said that the maximum penalty
will rarely be applied. That is correct. But the threat
is always there. Furthermore, the severity of an offence
is directly reflected by the ceiling of the penalty. Let
us compare the penalty faced by a peaceful demonstrator
with other penalties in the Ordinance: disorder in public
places, 12 months (s. 17B); possession of offensive weapon
at public meetings and processions, 2 years (s. 17C); behaving
in a disorderly, intimidating, insulting or provocative
manner in an originally lawful assembly, 5 years (s. 18);
rioters obstructing any vehicle, aircraft, train or vessel,
3 years (s. 22); forcible entry of a building, 2 years (s.
23); forcible possession of premises, 2 years (s. 24); fighting
in public place, 12 months (s. 25); inciting or inducing
others to kill, do physical injury to people and destroy
or damage property, 5 years (s. 26). Is a peaceful demonstrator
a more dangerous criminal than people who commit the crimes
set out above? If not, is the heavy penalty at least a deterrent
if not a threat to an ordinary citizen who wishes to exercise
his constitutional right to participate in a peaceful assembly?
That is the question we all have to grapple with. I do not
profess to know the answer but I do know that we stand alone
in the world in maintaining such a heavy penalty is necessary
in our World Class City.
The Bar Association submission paper draws
attention to a number of well settled constitutional principles
and legal authorities from a number of jurisdictions around
the world. The administration so far has not addressed any
of these weighty legal arguments. The Deputy Secretary does
attempt, however, to distinguish on the facts one of the
cases cited: De Jorge v. Oregon, a 1937 U.S. Supreme
Court decision. He did not attempt to distinguish the other
more recent U.S. Supreme Court decisions or other equally
persuasive decisions of other jurisdictions relied on by
the Bar. But the point is, we are not seeking to draw any
factual parallel with these decisions. These cases are living
testimony to the principle that the universally recognised
right of peaceful assembly and demonstration is not a gift
of the state or a policeman. It is a man's basic right.
The exercise of such a right, by our constitution, while
not totally unrestricted, should not be restricted by factors
of convenience or expediency. Or political considerations.
Dated 14th December 2000
Ronny K.W. Tong, S.C.
Chairman
Hong Kong Bar Association
|
