Hong Kong Bar Association Opposes Article 23 Draft Bill

The Hong Kong Bar Association formally expressed its views on the Article 23 draft bill on the 11th of April 2003. On the widely opposed proscription mechanism, which is believed to target Falun Gong, the Bar Association stated: "The proposed amendments to the Societies Ordinance are not mandated by Article 23 of the Basic Law." The Association also said that the proscription mechanism "dilutes the principle of 'One Country, Two Systems' and may be inconsistent with Article 4 of the Basic Law, which obliges the HKSAR to safeguard the rights and freedoms of the residents of the Region in accordance with the Basic Law. The Secretary for Security is supposed to exercise an independent judgement on facts related to national security. There is no justification for the link to a state of affairs in the Mainland."

In addition, the Bar Association make the following points:

• The Bar notes that the definition of "local organisation" in the proposed section 8A(5) of the Societies Ordinance is wide, which includes limited companies, unincorporated trusts and credit unions, which are not at present under the scheme of control of the Societies Ordinance.
• The Bar considers that the proposed section 8A(3) of the Societies Ordinance, which provides for a certificate to be conclusive of proof of the banning of a Mainland organisation, should relate only to the administrative act. The Secretary for Security should be required to prove the relevant act of the proscription in the Mainland on any appeal as a fact in the ordinary way and should not be allowed to rely only on the certificate.
• The HKSAR Government should confirm that an appeal to the Court of First Instance against a decision to proscribe a local organisation is a civil cause or matter within the meaning of section 13(1)(a) of the High Court Ordinance so that there can be further appeals to the Court of Appeal and the Court of Final Appeal.
• Conferring a right of appeal to the Court of First Instance directly engages Article 35 of the Basic Law, which guarantees the rights of access to the courts and to choose a lawyer for timely protection of lawful rights and interests or for representation in the courts. If rules made under the proposed section 8E of the Societies Ordinance provide for the exclusion of the appellant and his lawyer from the appeal proceedings and the appointment of a legal representative to represent the appellant's interests in their stead, then it is the Bar's belief that such rules would be unconstitutional as being inconsistent with Article 35. The situations in Canada and the United Kingdom are not sure guides to the constitutionality of a law in Hong Kong since those jurisdictions do not have a constitutional guarantee equivalent to Article 35 of the Basic Law. The HKSAR Government should rather devise court procedures that would enable the person affected and his lawyer to have access to all the materials relied on to support the administrative act of proscription. Giving effect to Article 35 would not affect the common law rules on public interest immunity or the ability of the court to sit in camera.
• Rules that limit access to a court should be in the form of primary legislation. The Chief Justice should not be placed in the invidious position as the maker of such rules, which would almost certainly be subject to a constitutional challenge in due course.