The Bar Council on HKSARG's Thinking about Legislating Against Cults
1. The Bar Council is very concerned at the news that the HKSAR Government is currently studying legislation or measures in foreign countries regulating or prohibiting "cults" or "sects" (hereinafter referred to as "cults") and seriously considering introducing laws against "cults" so that any organization labeled as such will, like a triad society, be an unlawful body.
2. Any proposal to legislate against "cults" will invariably threaten freedoms of conscience and religion guaranteed to residents of the HKSAR by our constitution.
3. Article 32 of the Basic Law provides: -
"Hong Kong residents shall have freedom of conscience.
Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public."
4. Article 32 is reinforced by Article 39 of the Basic Law, which provides: -
"The provisions of the International Covenant on Civil and Political Rights 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."
5. Article 15 of the Hong Kong Bill of Rights applies to HKSAR Article 18 of the ICCPR, which states:
"Freedom of thought, conscience and religion
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. ..."
6. The expressions "religion" and "religious belief" are to be broadly construed. They should not apply only to the traditional religions.
7. It can be seen from the article that, whilst limitations may be imposed on the right to manifest expressions of religion and belief, no limitations whatsoever may be imposed on the right to freedom of thought, conscience and religion. The reason for this is obvious. If Governments were allowed to suppress or modify personal thoughts and beliefs, an individual would lose that which makes him a human being. That is his personal autonomy, meaning the right to choose how best to develop his humanity according to a set of beliefs or principles freely chosen by him.
8. Any restriction imposed on the right to manifest expressions of religion and belief, in order to be compatible with the Basic Law and ICCPR, must be rational, proportionate and non-discriminatory in its application, that is to say, it should satisfy the following conditions: -
(a) The restriction must be "prescribed by law". This condition is not satisfied just by the Administration promulgating the relevant statutes. The formulation of such restriction must be sufficiently precise and unequivocal so that people manifesting their thought and religion will know what they cannot do;
(b) The restriction must be necessary for the protection of public safety, order, health or morals or the fundamental rights and freedoms of others. Any such restriction must be directly related and proportionate to the specific need it is addressing; and
(c) The restriction must not be imposed for discriminatory purposes or applied in a discriminatory manner.
9. It is virtually impossible to objectively define a "cult". The very word "cult" is pejorative. Labeling a group a "cult" is to suggest at the outset that the beliefs, religious or moral values, of its members are not merely atypical but are unacceptable to society as a whole. The lack of objective definition permits arbitrariness and abuse in the implementation of any legislation against "cults".
10. No case of necessity has been made out for legislating against "cults" in HKSAR. The personal safety of Hong Kong people is not threatened by any "cult". No "cult" represents a threat to public order. No "cult" represents a threat to the moral values of the people of HKSAR. If "cult" members do threaten personal safety, public order or morals, then HKSAR has an impressive array of law, including statutes and the common law, to deal with such matters. Notable examples are sections 8 and 18 of the Societies Ordinance (Cap. 151) dealing with triad and unlawful societies, section 33B of the Offences Against the Person Ordinance (Cap. 212) dealing with criminal liability for complicity in another’s suicide and the common law offences of incitement and attempt to commit any criminal offence.
11. Any legislation proposed for regulating or prohibiting "cults" or certain activities of "cults" will have a grave impact not only on the constitutionally guaranteed freedoms of thought, conscience, belief and religion in Hong Kong but also on freedoms of expression, assembly and association similarly guaranteed.
12. The Bar Council urges the HKSAR Government to preserve the rule of law by not legislating against an illusory threat when the legal armory it commands is sufficient to handle any "cult" and its activities. HKSAR’s autonomy under "One Country, Two Systems" must not be perceived as weakened. Plurality, tolerance, respect for the rule of law and freedoms of expression, religion, thoughts, conscience, assembly and association are hallmarks of a free and democratic society, which HKSAR cannot afford to compromise given its aspiration to become "Asia's World City".
Dated 25 May 2001
Hong Kong Bar Association