Provisional Legislative Council
PLC Paper No. 375/96-97
Ref.: PLC/BC/04
Paper for House Committee Meeting
on 7 June 1997
Report of the Bills Committee on Societies (Amendment) Bill 1997 and Public Order (Amendment) Bill 1997
Purpose
This paper reports on the deliberations of the Bills Committee on the Societies (Amendment) Bill 1997 and Public Order (Amendment) Bill 1997 and seeks the support of the House Committee on its recommendation that with the approval of the President, the Second Reading debate of the Bills should be resumed at the Council meeting to be held on 14 June 1997, subject to Committee Stage amendments (CSAs).
Background
The Bills
2.On 23 February 1997, the Standing Committee of the National People ' s Congress (NPC) of the People ' s Republic of China resolved, under Article 160 of the Basic Law, that among other things, major amendments to the Societies Ordinance (Cap 151) and the Public Order Ordinance (Cap 245) introduced in 1992 and 1995 respectively should not be adopted as laws of the Hong Kong Special Administrative Region (HKSAR). The NPC Standing Committee also resolved that HKSAR should enact laws on its own to avoid any resultant legal vacuum on 1 July 1997.
3.The Bills were introduced into the Council on 17 May 1997. The Societies (Amendment) Bill 1997 seeks to reinstate the registration system for societies which was repealed in 1992, and provides that a local society (or its branch) to which the Societies Ordinance applies must apply to the Societies Officer for registration or exemption from registration within one month of its establishment. In this regard, the Bill has made provisions for:
- application for registration or exemption from registration; appeal against refusal to register or to exempt; and offences in relation to registration;
- cancellation of registration or exemption from registration; appeal against such cancellation and offences of continued operation;
- prohibition of operation of societies; and
- other consequential and technical amendments.
The Bill also provides for new definitions of the terms of "connection", "election", "exempted society", "foreign political organization", "political body", "political organization of Taiwan", ' specified form" and "national security", and specifications in respect of the interpretation of the expressions of "public safety", "public order (ordre public) and "the protection of rights and freedoms of others".
4.The Public Order (Amendment) Bill 1997 seeks to modify the notification system introduced in 1995 for organizing public procession. It provides that a public procession may take place if the Commissioner of Police (CP) is notified of the intention to hold such public procession. CP may object to a public procession being held if he reasonably considers that the objection is necessary in the interests of national security or public safety, public order, or the protection of the rights and freedoms of others. If CP objects to a public procession being held, he must, within the stipulated time, notify the organizer of his objection together with reasons. Should CP fail to do that within the stipulated time, it will be deemed that he has no objection to the procession. CP must not exercise his right to object to a public procession being held if he considers the interests of national security or public safety, public order, or the protection of the rights and freedoms of others could be met by imposing conditions. Transitional arrangements are also provided for in the Bill.
The Bills Committee
5.At the House Committee meeting held on 17 May 1997, it was decided that a Bills Committee should be formed to study these two Bills. 15 members joined the Bills Committee, among whom Hon TAM Wai-chu, Maria, was elected Chairman and Hon WONG Ying-ho, Kennedy, Deputy Chairman. The membership list of the Bills Committee is at Appendix I. The Bills Committee has met three times, including two meetings with members of the Chief Executive ' s Office.
6.The Bills Committee issued press releases to the media of Hong Kong and placed notices on the internet to invite public views on the Bills, and received two submissions. The Bills Committee has taken note of the views expressed in these submissions.
Findings and Deliberations of the Bills Committee
7.The gist of findings and deliberations of the Bills Committee on the Bills is summarised in the following paragraphs.
The Societies (Amendment) Bill 1997
The registration system
8.The Bills Committee notes that the notification system, which replaced the registration system since 1992, is regarded by NPC as a major amendment to the Societies Ordinance. Therefore it shall not be adopted on and after 1 July 1997 and hence the Chief Executive is recommending the re-instatement of the registration system in this regard. The registration system as provided for in the Bill seeks to register all kinds of societies, with exemption for a society (or a branch) if the Societies Officer is satisfied that it is established solely for religious, charitable, social or recreational purposes or as a rural committee or a federation or other association of rural committees (New section 5A provided for under Clause 4 of the Societies (Amendment) Bill 1997 refers). The Bills Committee has ascertained from the Chief Executive ' s Office that the underlying principle as well as the actual provisions of the amending Bill in respect of the registration system are in compliance with the decision of the NPC, the provisions of the Basic Law and the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong, have sought to strike a right balance between civil liberties and social order, and will enable the authority to prevent the establishment of triad societies. It will also enable the public who wish to form a society to undergo an academic exercise with regard to the aims and objectives of such a society in the course of registration, and would cause little inconvenience to the public.
9.Three members of the Bills Committee are not entirely in agreement with the design of the registration system as provided for in the Bill, although basically they are in support of the principle that the notification system introduced in 1992 should be repealed. Hon LIU Sing-lee, Bruce, regards that there should be a provision for automatic exemption of registration of a society (or its branch) if it is established for the purposes stated in new section 5A provided for under Clause 4 of the Bill and if its membership does not exceed a ceiling. Hon WONG Ying-ho, Kennedy, on the other hand, regards that the registration system could be replaced by a reporting for record system. Upon establishment, a society (or its branch) should supply the necessary information as stipulated in the Ordinance to the Societies Officer for record purpose. Only when the Societies Officer considers that such establishment is in contravention with the Basic Law or other relevant stipulations, he will return the report to the society (or its branch), with reasons, and the society (or its branch) is entitled to appeal. Hon CHAN Choi-hi is also in favour of a reporting system which would allow a society (or its branch) to report to the Societies Officer within two months of its establishment.
10.After considering the views of the two members and those of the Chief Executive ' s Office, as well as considering the relevant provisions in the Bill, the majority of members of the Bills Committee expresses agreement with and support to the registration system as provided for in the Bill, on the grounds that it would ensure social order, would minimise confusion, would be in accordance with the decision of NPC, and would not cause unnecessary inconvenience to the public.
The definition of "national security"
11.New section 2(4) provided for under Clause 3(4) of the Bill provides that "national security" means the safeguarding of the territorial integrity and the independence of the People ' s republic of China. The Bills Committee notes that the definition has nor referred to the use or the threat of use of force. The Chief Executive ' s Office explains that so far no conclusion has been drawn in the international arena on the appropriateness of including such element in the definition. It also informs the Bills Committee that relevant administrative guidelines will be issued to the CP on the application of the "national security" consideration which must be consistent with what is necessary in a democratic society after the enactment of the Bill.
12. Hon LIU Sing-lee, Bruce, points out that there must be certainty of law regarding the definition of "national security" and he is doubtful of the legislative effect of the administrative guidelines. He regards that the definition of "national security" must be confined to situations where the territorial integrity and political independence of the People ' s Republic of China is not to be endangered. He will move CSA in this respect. Hon CHAN Choi-hi also points out that administrative guidelines are internal documents and their formulation is not subject to public scrutiny.
13.The majority of members of the Bills Committee, however, agrees that the concept of national security should be written in law. They also agree with the definition as provided for in the Bill. They regard that it is a matter of principle to ensure the integrity of the territory and independence of the government as a whole, without confinements.
The definition of "foreign political organization" and "political organization of Taiwan"
14.The Bills Committee has considered the concept of "foreign political organization" and "political organization outside Hong Kong" as suggested by some members. After consideration, the majority of members opts for the concept as provided for in the Bill which mainly deals with "foreign" and "Taiwan" as two entities separated from Hong Kong, and which does not distinguish PRC from HKSAR. They regard that it is a fact that HKSAR is part of PRC and their benefits are interlocked and interchangeable, especially under the concept of "one country, two systems", and it will serve no purpose to distinguish PRC from Hong Kong. Hon LIU Sing-lee, Bruce, however regards that there should be a distinction. He will move CSA in this regard.
The definition of "connection"
15.At the suggestion of the Bills Committee, the Chief Executive ' s Office agrees that the application of the concept of participating should be confined to the decision making process of a society, and should not applied to its management. Therefore, it will move CSA to amend the definition of "connection" to exclude such concept of participating in the management of a society.
The definition of "election"
16.The Chief Executive ' s Office informs the Bills Committee that the intention of the term "election" is to cover elections to government institutions which are currently subject to electoral laws in Hong Kong. In order to be consistent with such intention, the Chief Executive ' s office agrees to move CSA to exclude "the Provisional Legislative Council" from its definition.
The expressions of "public safety", "public order (ordre public)" and "the protection of rights and freedoms of others"
17.The Bills Committee notes that Clause 3(4) of the Bill provides that the expressions of "public safety", "public order (ordre public)" and "the protection of rights and freedoms of others" are to be interpreted in the same way as ICCPR and notes the explanations of the Chief Executive ' s Office that the amendment will restrict the scope of interpretation of these expressions as such accordingly. Hon LIU Sing-lee, Bruce, will move CSA to subject the Ordinance not to be construed in such a way as to limit or restrict the rights and freedoms provided in ICCPR as applied to Hong Kong.
Confirmation of the Societies (Amendment) Ordinance 1992
18.In the light that the NPC has declared that major amendments to the Ordinance introduced in 1992 shall not be adopted as laws of the HKSAR, the Bills Committee regards that it is important to ensure that the Ordinance, as amended by the Bill, shall have continual legal effect on or after 1 July 1997. In response, the Chief Executive ' s Office has agreed to amend Clause 17 of the Bill to read as follows:
" Subject to the amendments made in this Ordinance, the Societies (Amendment) Ordinance 1992 (No. 75 of 1992) and any amendments to the Societies Ordinance made since the Societies (Amendment) Ordinance 1992 are, to avoid doubt, adopted as laws of the Hong Kong Special Administrative Region and continue to have legal effect."
The Bills Committee agrees with such an amendment.
Other technical amendments
19.There are some other technical amendments on the Bill which the Chief Executive ' s Office has agreed to move, by way of CSAs.
The Public Order (Amendment) Bill 1997
The definition of "national security"
20.The majority members of the Bills Committee agrees with the definition of "national security" in the Bill, which is also used in the Societies (Amendment) Bill 1997. Hon CHAN Choi-hi regards that the definition should be deleted and all references to the term made in the Bill should be deleted and substituted by "the territorial integrity and independence of the People ' s Republic of China, without the interference and threat of external force".
General powers of the Commissioner of Police
21.The Bills Committee considers amended section 6(2) provided for under Clause 3(2) of the Public Order (Amendment) Bill 1997 and suggests to the Chief Executive ' s Office that the phrase "to prevent an imminent threat to" should be restored, since it is not the intention of the Bill to lower the standard of triggering point at which CP could intervene during meetings, processions and gatherings. The Chief Executive ' s Office agrees with the suggestion and will move CSA to such effect.
Power of Commissioner of Police to prohibit notified public meeting
22.Amended section 9(4) provided for under Clause 4(2) of the Bill provides that CP shall not exercise the power to prohibit notified public meeting if he considers that the interests of national security or the interests of public safety, public order (ordre public) or the protection of the rights and freedoms of others could be met by the imposition of conditions. Since section 9(1) has a standard of "reasonableness", members suggest and the Chief Executive ' s Office agrees to move CSA to insert the same standard in amended section 9(4) as well. Similar amendment will also be made to new section 14(5) provided for under Clause 7.
Written Notice of No Objection to be issued by the Commissioner of Police
23.The Bills Committee notes that under new section 14(4) provided for under Clause 7, if CP does not object to a public procession being held, he shall notify the person who gave notice in writing of his having no objection as soon as practicable within the stipulated time. Should CP fail to do so, it will be deemed that he has issued such a notice. Hon CHAN Choi-hi does not regard such arrangement as necessary and will move CSA to delete the provision as well as all other relevant provisions.
Confirmation of Public Order (Amendment) Ordinance 1995 and Public Order (Amendment) Ordinance 1996
24.As it is essential to ensure that the Ordinance as amended by this Bill will have continual legal effect on or after 1 July 1997, and at the request of the Bills Committee, the Chief Executive ' s office has agreed to amend Clause 15 of the Bill to read as follows:
"Subject to the amendments made in this Ordinance, the Public Order (Amendment) Ordinance 1995, the Public Order (Amendment Ordinance 1996 and any other amendments made to the Public Order Ordinance since the Public Order (Amendment) Ordinance 1995 are, to avoid doubt, adopted as laws of the Hong Kong Special Administrative Region and continue to have legal effect."
Transitional arrangements
25.At the suggestion of the Bills Committee, the Chief Executive ' s Office agrees that the transitional arrangements provided in Clause 16 of the Bill should be amended so that the existing procedures adopted by the Hong Kong Government will remain until before 1 July 1997.
Other technical amendments
26.There are some other technical amendments on the Bill which the Chief Executive ' s Office has agreed to move, by way of CSAs.
Committee Stage amendments
27.A set of draft Committee Stage amendments proposed by the Chief Executive ' s Office is at Appendix II, that proposed by Hon LIU Sing-lee, Bruce, is at Appendix III, and that proposed by Hon CHAN Choi-hi at Appendix IV.
Recommendation of the Bills Committee
28.The Bills Committee recommends that with the approval of the President, the Second Reading debate of these Bills be resumed at the Council meeting to be held on 14 June 1997, subject to CSAs to be moved by the Chief Executive ' s Office.
Advice sought
29.Members' advice is sought as to whether the Second Reading debate of the Bills be resumed at the Council meeting on 14 June 1997.
Provisional Legislative Council Secretariat
5 June 1997
