TNAG-2556-FCO40-3731-Hong-Kong-Bill-of-Rights-Societies-(Amendment)-Bill-1992-1992 — Page 136

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We agree (first TUR para 7) that the Chinese will probably take strong exception to the proposal to delete the existing provision in Section 6(2) (A). However, the existence of this provision is clearly incompatible with Article 18(2) of the BOR. The strength of the Chinese reaction will presumably depend on their judgement of whether robust powers are retained elsewhere in the amended ordinance for prohibiting 'undesirable'' societies, including those currently covered by Section 6(2)(A). We note that you consider that a branch of an overseas political group could be banned on security and public order grounds if the Executive considered that its existence would damage relations wtih a neighbouring country. It is not clear to us how a distinction between internal and external political organisations can be drawn under the proposed new powers. Would that power rely on the existing Section 6(2)(C) ''peace, welfare or good order''? Or do you intend to repeal this sub-section as well as Section 6(2)(A)?

the 4. Damage to relations with another country is not one of grounds on which Article 18(2) of the BOR permits freedom of association to be restricted. In most cases it is most unlikely that ''national security'' would be affected. Although ''public order Cordre public) can be interpreted rather more broadly than the mere prevention of rioting in the streets, Article 18(2) requires any restriction to be ''necessary in a democratic society in the interests of national security, etc''.

If, say, the Executive were to use the powers described to prohibit a Hong Kong branch of Amnesty International, or 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 (underline next two words) ultra vires, the powers conferred by the amended

Societies Ordinance.

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