| The Administration's response to the issues raised and information sought
at the joint meeting of the Panel on Security and Panel on Administration
of Justice and Legal Services on 15 February 2003
Introduction
This note sets out the Administration's response
to a number of issues raised and information
sought at the joint meeting of the Panel on Security
and Panel on Administration of Justice and Legal
Services on 15 February 2003 in relation to proscription
of local organizations, as listed in Appendix
I of the Background brief on the Bill prepared
by the Legislative Council (LC Paper No. CB(2)1378/02-03(03)).
Response
| A1. |
To explain the basis for empowering the
Secretary for Security to proscribe any local
organization if she reasonably believes that
the proscription is necessary in the interests
of national security and is proportionate
for such purposes, without a requirement
for the organization to commit an offence.
Administration's response to A1
Due to the highly serious and reprehensible
nature of organized crimes that endangers
national security, specific and focused measures
are necessary to deal with such activities.
It is possible for activities that threaten
national security without necessarily amounting
to criminal offences, e.g. preparing people
in terrorism. It is therefore necessary for
the Secretary for Security to be given the
power to proscribe an organization if he
reasonably believes that this is necessary
in the interests of national security, in
accordance with the standards of international
human rights covenants. |
| A3. |
To explain the inadequacies of the existing
provisions in the Societies Ordinance in
terms of proscription of local organizations
and why additional proscription power is
needed.
Administration's response to A3
The Societies Ordinance in section 8(2)
gives the Secretary for Security the power
to make an order prohibiting the operation
or continued operation of a society or the
branch of a society.
"On the recommendation by the Societies
Officer under subsection (1), the Secretary
for Security may by order published in the
Gazette prohibit the operation or continued
operation of the society or the branch in
Hong Kong."
| 2. |
Under section 8(1)(a), the Societies
Officer may recommend to the Secretary
for Security that an order be made if,
inter alia - |
| |
"he reasonably believes that
the prohibition of the operation or continued
operation of a society or a branch is
necessary in the interests of national
security or public safety, public order
(ordre public) or the protection of the
rights and freedoms of others;" |
| 3. |
We consider that these existing powers
are inadequate. First, the existing powers
are not focused on any particular type
of threat to national security. Unlike
the existing provisions, the Bill clearly
specifies the factual circumstances one
of which must be satisfied before the
measure of proscription could be considered
applicable. Such circumstances are1 - |
| |
| (a) |
the objective, or one of the objectives,
of the organization is to engage
in treason, subversion, secession
or sedition or commit an offence
of spying; |
| (b) |
the organization has committed
or is attempting to commit treason,
subversion, secession or sedition
or an offence of spying; or |
| (c) |
the organization is subordinate
to a mainland organization the operation
of which has been prohibited on the
ground of protecting the security
of the People's Republic of China,
as officially proclaimed by means
of an open decree, by the Central
Authorities under the law of the
People's Republic of China. |
|
| 4. |
This provides a clearer stipulation
regarding the pre-conditions under which
an organization would be subjected to
the proscription measures proposed. It
should nevertheless be stressed that
mere satisfaction of the pre-conditions
above are not sufficient for a proscription
to be made. All proscription decisions
must be made in accordance with the standards
of international human rights covenants,
and are subject to appeal to the Court
of First Instance, in additional to judicial
reviews. |
| 5. |
Secondly, under the existing provisions
the Secretary's power to prohibit
can be applied to any "society
or a branch"2 . The scope of application
is restricted by section 2(2) -
"The provisions of this Ordinance
shall not apply to any person listed
in the Schedule." |
| 6. |
The schedule lists 14 types of bodies
which are excluded from the application
of the ordinance (See Annex
l). There
are certain exceptions to this rule by
virtue of specific provision in the Societies
Ordinance or in other enactments (e.g.
section 2(2B) of the Societies Ordinance;
section 360C(1)3 of the Companies Ordinance
(Cap 32)). The effect is that the existing
power to proscribe under the Societies
Ordinance does not apply to certain types
of society or organization. |
| 7. |
We consider that organized activities
that endangers national security, defined
as "the safeguarding of the territorial
integrity and the independence of the
People's Republic of China", should
be prohibited in accordance with international
human rights standards, regardless of
whether they are registrable under the
Societies Ordinance. The Bill provides
a clear stipulation in this regard. |
|
| A9. |
To explain whether the proposed provisions
relating to proscription would be applicable
to any body of persons falling within the
definition of "society".
Administration's response to A9
Under the proposals in the Bill a new section
8A would be added giving the Secretary for
Security power to proscribe by order a "local
organization" if he reasonably believes
that the proscription is necessary in the
interests of national security and is proportionate
for such purpose.
| 2. |
For the purposes of the new section
8A, the Bill defines "local organization" to
mean "(i) any society which is
registered, registrable or exempted from
registration under th[e] Ordinance; or
(ii) any body of persons listed in the
Schedule". Section 2(2) is modified
accordingly. The proposed powers would
therefore apply to any body of persons
falling within the definition of "society". |
| 3. |
However, the new power is more focused
than the existing power, as discussed
above. Furthermore, any office-bearer
or member of a proscribed organization
would have the right to appeal to the
Court of First Instance. |
|
| A10. |
To review the definition of the term "society" in
the Societies Ordinance, having regard
to the Chinese and English versions.
Administration's response to A10
"Society" is defined in section
2 of the Societies Ordinance to mean "any
club, company, partnership or association
of persons, whatever the nature or objects,
to which the provisions of th[e] Ordinance
apply".
| 2. |
The Chinese version of "society" is"社團","指本條例條文適用的任何會社、公司、一人以上的合夥或組織、不論性質或宗旨為何". |
| 3. |
The Chinese and English definitions
of the term are the same. The term covers
legal forms of juridical persons as well
as de facto associations of persons.
The Chinese version of "一人以上的合夥或組織"refers
to associations of more than one person,
i.e. persons in the plural. |
|
| A11. |
To explain the meaning of the term "substantial"
in the new section 8A(5)(h)(i) of the Societies
Ordinance.
Administration's response to
A11
The Bill provides in the new section
8A(5)(h)(i) that a local organization
is subordinate to a mainland organization
if -
| (i). |
the former solicits or accepts
for its operation substantial financial
contributions, substantial financial
sponsorship or substantial financial
support of any kind or loans of a
substantial amount, directly or indirectly,
from the latter; |
| (ii) |
the former is under the direction
or control, directly or indirectly,
of the latter; or |
| (iii) |
the policies of the former or any
of such policies are determined,
directly or indirectly, by the latter." |
"Substantial" is used four times in
sub-paragraph (i) to qualify financial
contributions, financial sponsorship,
financial support and the amount of loans.
| 2. |
Judicial authorities indicate that
"substantial" is a relative term.
It would have its normal dictionary
meaning of "of real importance or
value, of considerable amount" (opposite
of nominal). The effect of the qualification
would be to rule out from consideration
nominal or minimal amounts or payments. |
|
| 1See section 8A(2) in clause
15 of the Bill. |
| 2S.2(1) - "Branch", in
relation to a society, includes any society
which
is in any way subordinate to any other society. |
| 3S.360C(1) - If the Chief
Executive in Council is satisfied that
a company formed
and registered under this Ordinance or any
former Companies Ordinance would, if it were
a society in respect of which the Societies
Ordinance (Cap 151) applied, be liable to
have its registration or exemption from registration
cancelled under section 5D or its operation
or continued operation prohibited by the
Secretary for Security under section 8 of
that Ordinance, the Chief Executive in Council
may order the Registrar of Companies to strike
such company off the register of companies. |
Security Bureau
March 2003
|
