CODE 18-77
Reference
CONFIDENTIAL
HKC
241/4
From:
Jill Barrett Asst Legal Adviser K174
270 3381
CM
Date:
24 April 1992
19
Dr Harkin, HKD
277.
HONG KONG BILL OF RIGHTS: REVIEW OF LEGISLATION: PROPOSED AMENDMENTS TO SOCIETIES ORDINANCE
1.
I refer firstly to Hong Kong telegram number 506, which responds to our comments on their proposals. I am content with their responses in paragraphs 1-6, but remain concerned by the arguments in paragraphs 7-9. I do not think that Article 18(2) of the BOR would permit the banning of a society (whether affiliated or connected to an overseas political group or not) merely on the grounds that its existence would seriously damage Hong Kong's relations with China, notwithstanding that China is regarded as "crucial to Hong Kong's security" and "well-being". It is important to bear in mind that for a ban on a society to be compatible with Article 18(2), it must not only be genuinely "in the interests of national security" but also "necessary in a democratic society". The displeasure of the host government or of a neighbouring government cannot be sufficient to invoke "national security"; if it were, any repressive government could justify the banning of any society on the basis of its own intolerance.
2.
It would follow from Hong Kong's arguments that they could use the power in the amended Ordinance to prohibit a society on grounds of security against a Hong Kong branch of Amnesty International or other human rights group, or of an international Chinese students' organisation, for example, on the basis that the Chinese are or might be annoyed by them. I do not think that such action would be lawful under the Ordinance, or compatible with Article 18 BOR. It is true that UK courts are usually reluctant to question the government's judgments as to the needs of security. Nevertheless, a mere assertion that security interests are involved is not sufficient; the court would expect to see evidence that, at the very least, those interests existed and were relevant to the decision. It is possible that in a BOR case the courts would look more closely at the evidence than they do in the kinds of cases which have arisen so far in the UK. I would not be confident that a court would be satisfied merely by reference to "relations with another State" or that such an argument would sound reputable in a public forum. HKG should therefore be advised to exercise their powers in this area extremely sparingly, and never on the sole ground that China does or might disapprove of the organisation in question.
FIFABN
CONFIDENTIAL