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.
Hong Kong Bar Association