Reference.....
has also been prohibited on one of the grounds specified in Article 18. This needs clarification.
6. It would be helpful to see the proposed amendments in draft as soon as possible, even if only an early working draft. It is impossible to give a definitive view before then. However, on the basis of the limited information given in TUR, I would think that the proposed notification system would, in principle, be capable of withstanding challenge. under the BOR.
7.
Referring to paragraph 7 of TUR, I agree that the Chinese will probably take strong exception to the proposal to delete the existing provision in section 6(2)(A) which allows the CP to refuse to register a society if satisfied that it is connected with an organisation of a political nature outside Hong Kong. However, the existence of this provision is clearly incompatible with Article 18(2) BOR. Unfortunately, I do not think that this problem will be as easily solved as HKG suggest. I doubt very much that the executive could necessarily prohibit "undesirable" societies, including those currently covered by section 6(2)(A), on grounds of security and public order, where their activities are likely to damage seriously our relations with China. Nor is it clear to me how "a branch of an overseas political group can be banned on security and public order grounds if the executive considers that its existence would damage relations with a neighbouring country". Damage to relations with another country is not one of the grounds on which Article 18(2) BOR permits freedom of association to be restricted. In most cases it is most unlikely that "national security" would be affected. Although "public order (ordre public)" can be interpreted rather more broadly than the mere prevention of rioting in the streets, must be borne in mind that Article 18(2) requires any restriction to be "necessary in a democratic society". say, the executive were to use the powers described to prohibit a Hong Kong branch of Amnesty International, or of a Chinese students' organisation, it might be very difficult to justify under Article 18(2) The prohibition might also be successfully challenged by judicial review as ultra vires the powers conferred by the amended Societies Ordinance.
If,
8. I see no easy way out of this corner. Deletion of section 6(2)(A) now as part of a package of amendments would certainly be preferable to having it struck, down in a high-profile BOR Court action later; but went tell the Chinese that the revised legislation contains essentially the same power as the existing provisions.
Will Bautt
Jill Barrett
it
CODE 18-77
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