3.7 PUBLIC ASSEMBLIES
RIGHTS AND LIABILITIES (source: JUSTITIA --see notes )
Public assembly is an indispensable means of expression in a free state. But do we have any right of assembly ?
LEGAL RESTRICTIONS
Under the British Law, the right for assembly is a resident right which is not legally recognized. It is because of this very cause that this imposed restriction under' the law' must be thoroughly identified.
The principle underlying such restrictions is the maintainence of peace and order.
Under the Common Law, people are free to hold an assembly provided that they do not cause an obstruction nor commit trespass nor cause breach of peace by the use of violence.
In Hong Kong, the Public Order Ordinance is a highly oppressive Ordinance "containing extensive limitations on freedom of speech and association and giving sweeping power to junior police officers, so drafted as to exclude, in many cases, redress in the courts for abuses" (1) It strictly enforced, the Ordinance would, in some cases, lead to defiance of the Rule of Law. However, new restrictions have emerged in the Ordinance. The Commissioner of Police may, when he believes it necessary, in the interests of public order, prohibit the holding of any public gathering, anywhere on any day. The Police also have powers to control or even "conduct" a public meeting. The Ordinance with other statutory provisions virtually remove the resident rights of assembly.
TYPES OF ASSEMBLY
Under section 7 (1) of the Public Order Ordinance, NO public meetings and processions can be held without a licence. However, there is no legal definition of assembly. Though commonly regarded as meeting, the application is much much wider. An unlawful assembly can be deduced as an assembly where 3 or more persons meet for the accom- plishment of a common purpose." (2).
The Public Order Ordinance defines a meeting as any gathering or assembly of persons which is convened or organised for any purpose or at which any person assumes or attempts to assume control or leadership. (3) Meetings of public bodies like the Executive Council, Legislative Council etc. are excluded. Therefore, meetings may take many forms : sit-in protests, strikes, parades, or trade union meetings, funeral services or even dinner parties.
Presumably a public meeting does not include a public procession which is "any pro- cession in, to or from a public place". Procession is not specifically defined in the Ordinance but supposedly some dearee organization is needed.
Both the holding of public meetings processions require a licence from the Police. Though no licence is required for entertainment purposes, social or business purposes in a licensed restaurant, for funeral purposes or for meetings held in a licensed place of public entertainment section7(5). Applications for permits must be made to the Commissioner of Police (or a Police Inspector or anyone with a higher rank to whom he has delegated this power under section 52(1), who shall issue a licence if he is satisfied that the public assembly is not likely to affect the maintenance of public order or be used for any unlawful or immoral purpose.section 7(2). (4)
Why a licence is required can be argued that without it the meeting will constitute a trespass against the Crown. However, should the meeting be in the form of a procession or held in a private premises, the argument for it can only be that for the sake of public order, that the Police will be prepared to prevent the commission of crimes or breach of the peace. However, some meetings considered as private may really be public, since the definition is not clearly stated in the Ordinance, thus hindering any actions that groups may wish to take.
Another loophole in the Public Order Ordinance arises when a social or business meeting turns out to be of another nature when someone raises an issue unconnected to the original matter. Would the meeting then be an illegal assembly? Moreover, it is not uncommon for a procession to stop and discuss the matter, or for the parti- cipants of a meeting to move to another place. Would two licences be required ? One for a meeting, another for a procession ?
MT 18