| Introduction
|
|
This paper sets out the Administration's
response to items A4 to A8 and C11 of Appendix
I to the background brief prepared by the
Legislative Council Secretariat (paper
no. CB(2)1378/02-03(03)), as well as to
a number of questions raised at the meeting
of the Bills Committee on 20 May 2003.
It also addresses the concerns that the
Chief Justice should not be responsible
for the making of rules which might themselves
be subject to legal challenge on appeal.
|
The Special Procedures
|
| 2. |
The proposed new section 8E of the Societies
Ordinance (in clause 15 of the Bill), enables
rules to be made in respect of appeals
against a proscription. The section provides,
in
particular, that -
| "(3) |
Rules made under this section
may make provision -
| (a) |
enabling proceedings to
take place without the appellant
being given full particulars
of the reasons for the proscription
in question;
|
| (b) |
enabling the Court of First
Instance to hold proceedings
in the absence of any person,
including the appellant and any
legal representative appointed
by him; and
|
| (c) |
enabling the Court of First
Instance to give the appellant
a summary of any evidence taken
in his absence. |
|
| (4) |
Where rules made under this section
enable the Court of First Instance
to hold proceedings in the absence
of the appellant and any legal representative
appointed by him, the rules shall
make provision for -
| (a) |
a power to
appoint a legal practitioner
to act in the interests of the
appellant; and
|
| (b) |
the function and responsibility
of such legal practitioner." |
|
|
| 3. |
There are no existing rules in Hong
Kong making provision for such special procedures,
but similar procedures exist in the UK and
Canada. Moreover, it is emphasized that the
proposed avenue of appeal to the courts will
be additional to, and not a substitution
for, the organization's rights at common
law. |
I. Justifications and Precedents
Increased rights of proscribed organizations
|
| 4. |
If the Bill followed the common law,
a proscribed organization would have no right
to appeal to the courts, and could only seek
to challenge a proscription by way of judicial
review. In such proceedings, the court would
not conduct an overall review of the decision,
but would merely determine whether it was
lawful or unlawful. In so doing, it would
be constrained by common law principles that
restrict the extent to which it can enquire
into issues and evidence relating to national
security. |
| 5. |
The proposed right of appeal will improve
the position of proscribed organizations.
It will require the court to conduct an
overall review of the decision reached
by the executive,
in a manner which would not be available
in the judicial review process. The court
should have access to all or at least the
essential documents of a sensitive, security
nature in order to decide whether there
is "insufficient
evidence" -
| (1) |
to prove that
the organization falls within section
8A(2)(a), (b) or (c); or
|
| (2) |
to justify a reasonable belief
that the proscription is necessary
in the interests of national security,
and is proportionate for such purpose. |
|
| 6. |
The court will test the sufficiency
of evidence in a way that would not be
available by way of judicial review. In
the latter proceedings, it is not for the
court to alter an administrative body's
evaluation of issues of fact. It will only
have to satisfy itself, for example, that
inferences were reasonably drawn or that
conclusions rationally relate to evidence
available to the decision-maker.
|
| 7. |
Assuming that the procedural rules to be made in Hong Kong
are modelled on UK precedents, the appeal
court would be empowered to -
| (1) |
receive evidence that would
not normally be admissible in court;
|
| (2) |
require a witness to give
evidence on oath; and
|
| (3) |
require any person in Hong Kong
to attend at any proceedings before
it and to answer any questions or produce
any documents in his custody or under
his control which relate to any matter
in question in the appeal. |
In addition, both the appellant and the Secretary for Security
would be entitled to adduce evidence. |
| 8. |
Through the appeal process, aspects of "national security" will
become justiciable and the court will be
required to decide on those aspects. This
is in sharp contrast to the common law rule
under which "national security" is largely non-justiciable.
The court is unlikely to be satisfied by
evidence (e.g. by affidavit) merely that
national security had been considered and
accepted as the basis by the Secretary for Security
for her decision. It is likely to demand
the sight of sensitive security documents
to assess the sufficiency of the evidence. |
| Justifications for special procedures |
| 9. |
Without special court procedures, the proposed appeal mechanism
might not achieve its purpose. It might be
impossible in some cases to satisfy the appeal
court that the proscription of a local
organization is necessary in the interests
of national security without disclosing to
the organization and its legal representatives
evidence of a highly sensitive and confidential
nature. That disclosure might in itself endanger
national security. |
| 10. |
For example, a local organization might be proscribed
by the Secretary for Security on the grounds
that it received substantial funding from
a violent secessionist organization
that had been banned in the Mainland on
the grounds of national security. In coming
to his decision, the Secretary may have
relied on -
| (1) |
evidence concerning the funding
of the local organization's activities
obtained by an undercover agent; and
|
| (2) |
evidence concerning the activities
and organization of the banned Mainland
organization obtained by Mainland security
officials. |
|
| 11. |
If the existence and identity of the undercover agent, and
the extent of the intelligence gathered on
the Mainland organization were revealed to
the local organization and its lawyers, this
might seriously prejudice ongoing investigations
into activities that endanger national security. |
| 12. |
However, if that information were not revealed to the court,
the court might not be satisfied that the
proscription was justified. In such a case,
it would be obliged to set aside the proscription.
There should, therefore, be procedural safeguards
to ensure that sensitive confidential information
relevant to the question of
national security will be disclosed only
to the court, in order to enable it to carry
out its statutory function. |
| 13. |
Although the proscribed organization will not be given access
to the confidential documents on appeal,
it will be represented by a specially appointed legal practitioner.
This is a definite
advantage for the organization and an improvement
over the common law position. Under the common law, it will not
have such representation
in respect of an administrative decision,
nor will it be entitled to see those documents, since public interest
immunity is likely
to apply. |
| Overseas Precedents |
| 14. |
A rule-making power similar to that in the proposed section
8E(3) and (4) is found in the UK 's -
| (1) |
Special Immigration Appeals Commission
Act 1997;
|
| (2) |
Terrorism Act 2000; and
|
| (3) |
Regulation of Investigatory Powers
Act 2000. |
Relevant rules
are contained in the Special Immigration
Appeal Commission (Procedure) Rules 1998,
the Proscribed Organizations Appeal Commission
(Procedure) Rules 2001, and the Regulation
of Investigatory Powers Tribunal Rules
2000. |
| 15. |
Canada also has similar procedures in its -
| (1) |
Immigration and Refugees Protection
Act;
|
| (2) |
Criminal Code; and
|
| (3) |
Charities Registration (Security
Information) Act. |
|
| 16. |
As will be seen, the overseas precedents are not limited to
immigration-related cases, but also apply to appeals relating to
terrorist entities, and to certain proceedings in respect of the
conduct of intelligence services. |
| 17. |
The rationale for the special procedures adopted in the UK
and Canada applies equally to appeals by
organizations proscribed under the proposed
section 8A of the Societies Ordinance. That rationale
is set out in paragraphs 9 to 13 above. |
II. The Common Law Position
|
| Remedies in respect of administrative decisions |
| 18. |
The proposed power of proscription would be vested in the
Secretary for Security. The exercise of that
power would therefore be an administrative
decision. Although it is proposed to give
a right of appeal to the courts, the judicial
hearing of such an appeal would not change
the fact that the decision being appealed
against was an administrative one. |
| 19. |
At common law, there is no right of appeal in respect of
an administrative decision. The problems
referred to in paragraphs 9 to 13 above could
therefore be avoided under common law principles
by not providing for any appeal. |
| 20. |
Where an appeal channel is provided, the common law allows
special procedures to be provided for the
hearing of the appeal. For example, the rules
of the UK Immigration Appeal Tribunal formerly
provided that the appellant was not entitled
to legal representation and was only to be
given an outline of the grounds for deportation. |
| 21. |
At common law, an individual can challenge an administrative
decision by way of judicial review, regardless
of whether an appeal channel is provided.
The difference between an appeal and judicial
review is as follows.
| |
"The system of judicial review is radically different
from the system of appeals. When hearing an appeal the
court is concerned with the merits of a decision : is
it correct? When subjecting some administrative act or
order to judicial review, the court is concerned with
its legality : is it within the limits of the powers granted?
On an appeal the question is "right or wrong?" On review
the question is "lawful or unlawful?" "
[Administrative Law, by Wade and Forsyth, 8th ed, p.33] |
|
| 22. |
There are also important procedural differences between appeals
and applications for judicial review. In
particular, there is no general right to
discovery of documents in respect of the latter. |
| Rights of a litigant |
| 23. |
In the present context, the following aspects of a litigant's
position under the common law are relevant -
| (1) |
the right to be heard in open
court;
|
| (2) |
the right to legal representation;
|
| (3) |
the principles of natural justice/right
to a fair hearing;
|
| (4) |
the right to obtain disclosure
of relevant documents held by the other
party. |
|
| 24. |
The general rule is that both civil and criminal cases must
be heard in open court (Scott v Scott [1913]
AC 417). However, the court has an inherent power to sit in private
in exceptional circumstances. |
| 25. |
In relation to proceedings before a court, there is a common
law right of legal representation. However,
in relation to proceedings before tribunals
it is not clear whether there is such a right,
nor is certain that this is covered by the
principles of natural justice (Wade and Forsyth,
op cit. p.913). |
| 26. |
The principles of natural justice developed by the courts include
the right to a fair hearing and the rule
against bias. The requirements of natural
justice depend on various factors, including the circumstances
of the case, the nature of the inquiry, the
rules under which the tribunal is acting,
and the subject matter to be dealt with. |
| 27. |
The right to a fair hearing includes a "fair opportunity
to those who are parties in the controversy for correcting or contradicting
anything prejudicial to their view". (Lord Loreburn in Board
of Education v Rice [1911] AC 179). However, what is essential is
substantial fairness to the person affected.
| |
"... this may sometimes be adequately achieved by telling
him the substance of the case he has to meet, without disclosing
the precise evidence or the sources of information. The
extent of the disclosure required by natural justice may
have to be weighed against the prejudice to the scheme of
the Act which disclosure may involve. " (Wade and Forsyth,
op cit, p.509) |
|
| 28. |
With regard to the disclosure of documents, the general position
may be summarised as follows.
| (1) |
In civil proceedings, a litigant
is entitled to be informed by the other
party of all documents relating to
matters in question in the action that
are or have been in the possession,
custody or power of that other party,
and to inspect those documents.
|
| (2) |
In criminal proceedings, a prosecutor
is required to disclose to the defence
all material in his possession of which
he becomes aware that constitutes evidence
relevant to the guilt or innocence
of the accused.
|
| (3) |
In an application for judicial
review of a decision by a public authority,
the applicant has no general right
to discovery of documents held by the
public authority. The latter will merely
file an affidavit stating why the application
is opposed, and may give reasons and
refer to relevant evidence. |
|
| Protection of the public interest |
| 29. |
Where an issue concerning national security is before the
courts, the principles explained above are
modified in various ways in order to safeguard
the public interest.
| (1) |
The court can hear the appeal,
or parts of it, in camera (i.e. with
members of the public being excluded)
if the court considers that it is necessary
to do so to protect national security.
|
| (2) |
In civil cases, the rules of
natural justice are liable to be modified.
|
| (3) |
Public interest immunity may
justify the non-disclosure of certain
evidence. |
|
| 30. |
So far as the rules of natural justice are concerned, the English
Court of Appeal decided in R v Home Secretary,
ex parte Hosenball [1977] 3 All ER 452, that -
| |
"The public interest in the security of the realm was
so great that the sources and nature of the highly confidential
information supplied to the Secretary of State for the purpose
of reaching a decision to make a deportation order in the
interests of national security ought not to be disclosed.
Accordingly, the requirement of the public interest that
such information should be kept confidential might outweigh
the public interest in the administration of justice. " |
As a result, the Home Secretary's refusal to give further
particulars of why he considered it would be in the interests
of national security to deport Mr Hosenball did not breach the
rules of natural justice. |
| 31. |
The authors of De Smith, Woolf and Jowell's Principles
of Judicial Review summarise the position as follows (at pages
365-6).
| |
"Where a threat to national security, in particular,
is given as the reason for denying or restricting an
individual's entitlement to procedural fairness, the
Domestic Courts have, as yet, been unwilling under the
common law to intervene by examining the strength of
that justification - still less by insisting upon procedural
fairness in the face of such a justification. " |
|
| 32. |
Public interest immunity is a doctrine developed
by the courts to deal with a situation in which
there are two conflicting public interests
: that justice should be done, and that
evidence should not be disclosed where it would be
injurious to the public interest to do
so. As Wade and Forsyth explain (op cit, p. 825) -
| |
"To hear the evidence in camera is no solution, since
to reveal it to the parties and their advisers may be
as dangerous as to reveal it to the public generally. " |
|
| 33. |
An example of a situation in which the disclosure of information
would have endangered national security is
found in an English case decided in 1942
(Duncan v Cammell, Laird & Co Ltd [1942]
AL 624). A submarine sank during trials and dependants of those
who died brought proceedings against the contractors who built
it. The House of Lords held that the contractors were not required
to disclose certain papers, including the contract for the hull
and machinery, and salvage reports. After the war it was revealed
that the submarine had a new type of torpedo tube which in 1942
was still secret. |
| 34. |
The application of public interest immunity requires the
court to conduct a balancing exercise to
decide whether the need for secrecy overrides
the interests of a litigant to obtain or
produce relevant evidence. |
| Problems under the common law |
| 35. |
The common law position outlined above may not always produce
a satisfactory result, either for the individual
or for the public authority. So far as
the individual is concerned, the absence
of any right of appeal and the limitations
of a remedy by way of judicial review may
mean that he cannot effectively challenge
a decision based on grounds of national
security. In judicial review proceedings, a litigant -
| (1) |
is not entitled to know the full
details of the reason for the decision;
|
| (2) |
is not entitled to disclosure
of documents held by the decision-maker;
and
|
| (3) |
may be precluded by public interest
immunity from seeing relevant information. |
|
| 36. |
So far as public authorities are concerned, they may face
two problems. In civil proceedings where
the other party seeks disclosure of sensitive
information, if public interest immunity
is not granted, the authority may have a
stark dilemma : either disclose the evidence
or drop the case. |
| 37. |
In the criminal sphere, common law principles may cause
well-founded prosecutions to be dropped.
According to the British Security Service,
it is impossible to prosecute some of those
the Service believes to be foreign terrorists
because to attempt to do so would itself
imperil national security (see A, X and
Y v Home Secretary [2002] EWCA Civ 1502 at
page 27). Lord Denning made a similar comment
in the Hosenball case : "arrests
have not been made, nor proceedings instituted, for fear that
it may give away information which must be kept secret. " |
| 38. |
Legislation can overcome some of these problems, by modifying
the way in which common law principles operate.
However, in jurisdictions (such as Hong Kong)
where fundamental human rights are guaranteed,
any such legislative solution must comply with
those guarantees. |
| 39. |
It may be impossible to overcome the problem in respect
of criminal cases since -
| (1) |
it is unlikely that public interest
immunity will be granted for documents
needed for defence against a criminal
charge; and
|
| (2) |
the rights conferred on those
charged with criminal offences under
Article 14 of the ICCPR are such that
it is unlikely that special procedures
to overcome the dilemma would be permitted. |
The Bill does not propose any special procedures for the trial
of criminal offences based on Article 23. The proposed special
procedures relate only to appeals against proscription. |
| 40. |
In relation to such appeals, it is considered that the proposed
legislative scheme will overcome the common
law problems in a way that complies with
human rights guarantees. |
III. The Lawfulness of the
Proposed Rule-making Power
|
| 41. |
The most relevant guarantees of human rights in this context
are as follows.
Article 14.1 of the ICCPR (protected by Article 39 of the
Basic Law)
| |
"All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him,
or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
The press and the public may be excluded from all or part
of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society,
or when the interest of the private lives of the parties
so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity
would prejudice the interests of justice; . . . " |
Article 35 of the Basic Law
| |
"Hong Kong residents shall have the right to confidential
legal advice, access to the courts, choice of lawyers
for timely protection of their lawful rights and interests
or for representation in the courts, and to judicial
remedies.
Hong Kong residents shall have the right to institute
legal proceedings in the courts against the acts of the
executive authorities and their personnel. " |
|
| 42. |
It is likely that both the above provisions would be engaged by
a proscription of an organization under the proposed section 8A of
the Societies Ordinance. The Administration considers that the rule-making
power set out in the proposed section 8E(3) and (4) of the Societies
Ordinance, and rules similar to those made in the UK would comply
with the above guarantees. In coming to this opinion, it has been
guided by case law relating to the Canadian and UK models. This is
described in the Annex. |
| A fair hearing |
| 43. |
According to European jurisprudence, the right to a fair
hearing requires that a party to proceedings
that are decisive of his civil rights and
obligations or criminal charge enjoys
procedural fairness in those proceedings.
He should for example have a reasonable opportunity
of presenting his case to the court
under conditions which do not place him at
a substantial disadvantage vis-à-vis his opponent. In civil cases a party is entitled
to be present at the hearing or appeal in certain kinds of cases
in which fairness requires the presence and the participation
of the person directly affected by the decision. The right to
be tried in one's presence, and to defend oneself in person
or through legal assistance through one's own choosing under
Article 14 of the ICCPR is restricted to the determination of
a criminal charge. |
| 44. |
It is considered that any restrictions imposed by the special
procedures on an appellant's ability to -
| (1) |
obtain full disclosure of information
relating to the proscription and the
reasons for it;
|
| (2) |
be legally represented; or
|
| (3) |
be present throughout the appeal
hearing, |
would be the minimum
needed for the purpose of protecting the
security of the PRC, and would not deprive
the appellant of a fair hearing. As noted
in paragraph 26 above, what is essential
is substantial fairness to the person affected,
and this can sometimes be adequately achieved
without disclosing the precise evidence
or sources of information. |
| 45. |
In particular -
| (1) |
the Court would decide whether
the Secretary for Security may refuse
to disclose to the appellant or its
legal representative any particular
information, reasons or evidence and,
before so deciding, a special advocate
could make representations on behalf
of the appellant;
|
| (2) |
if and to the extent that it
would be possible to do so without
disclosing information contrary to
the interests of the security of the
PRC, the Secretary for Security would
be required to provide a statement
of the undisclosed material in a form
which could be shown to the appellant;
|
| (3) |
the Court could only hear the
proceedings or any party of them in
the absence of the appellant and his
legal representative if that was necessary
in order to ensure that information
was not disclosed contrary to the interests
of the security of the PRC;
|
| (4) |
a special advocate could represent
the interests of the appellant by -
| (a) |
making submissions to the
Court in any proceedings from
which the appellant and his legal
representative were excluded;
|
| (b) |
cross-examining witnesses
at any such proceedings; and
|
| (c) |
making written submissions
to the Court. |
|
|
| Public hearing |
| 46. |
Article 14.1 of the ICCPR expressly provides that "The
press and the public may be excluded from all or part of a trial
for reasons of . . . national security in a democratic society
. . . " |
| 47. |
It is not unusual to provide for proceedings in private
where issues of national security are involved.
For example, the Official Secrets Ordinance
(s.24, Cap 521) and the United Nations
(Anti-terrorism Measures) Ordinance (s.21,
Cap 575) provide that the courts may exclude
the public in the interests of the safety
of the PRC or Hong Kong, and the security,
defence or external relations of the HKSAR, respectively. |
| 48. |
In so far as the rules to be made under the current Bill
would permit the Court to hear an appeal
in private, the Court could ensure that it
would only do so in circumstances that are
permitted by Article 14.1. There would be
no requirement, as in the UK Investigatory
Powers Tribunal Rules 2000, that all proceedings
should be held in private. |
| A competent, independent and impartial tribunal |
| 49. |
There is no doubt that the Court of First Instance would
be "a competent, independent and impartial tribunal established
by law" as required by Article 14.1 of the ICCPR. Judicial
control of the proscription, where the Secretary for Security
can be expected to adduce quite detailed reasons relating to the
proscription of the particular organization in closed sessions
before the Court, is considered to provide a form of control proportionate
to the demands of the situation. |
| Choice of lawyers |
| 50. |
Article 35 of the Basic Law guarantees the right to "choice
of lawyers . . . for representation in the courts, and to judicial
remedies". The proposed right of appeal to the Court is
clearly a judicial remedy. |
| 51. |
With regard to the choice of lawyers, a proscribed organization
would continue to be entitled to choose its
own legal representative, albeit that the
chosen representative might be excluded from part
of the hearing. However, it is not considered
that Article 35 confers a right of such an
absolute nature that no material information
could be withheld from a legal representative.
Such a right would be inconsistent with public
interest immunity. |
| 52. |
In addition, if the appellant organization and its legal representative
were excluded from the hearing, its interests
would be adequately protected by the special
advocate, who would have a statutory duty
to represent its interests. |
| 53. |
European jurisprudence on the right of the accused in a criminal
case to defend himself in person "or through legal assistance
of his own choosing" indicates that the state may place reasonable
restrictions on the right of the accused to counsel of his choice. |
IV. Authority to Make Rules Relating to
Appeals against Proscriptions
|
| 54. |
We note concerns have been raised by the Bar Association
and individual commentators that the Chief
Justice should not be asked to make rules
of this nature, especially when the rules
might be subject to legal challenges on appeal
against proscription. |
| 55. |
We agree with the Bar Association that the Chief Justice's
constitutional position is different from that of the UK Lord Chancellor,
who has made similar rules under UK Special Immigration Appeals Commission
Act 1997, and on which the present proposals are based. It is therefore
considered appropriate to vest the relevant rule-making power in
a different authority. |
| 56. |
The Administration is considering how to address the concerns.
An alternative approach to the present proposals
under the new section 8E of the Societies
Ordinance would be to empower, for example, the
Chief Executive in Council, instead of the
Chief Justice, to make regulations governing
the conduct of special appeal procedures. |
| 57. |
Under this alternative approach, the Chief Justice would
continue to be vested with rule-making power
to deal with procedural matters relating
to appeals against proscription. However,
he would not be making rules for matters
under the new section 8E(3) (proceedings to take
place in the absence of the appellant) and
8E(4) (appointment and duty of the special
advocate). These latter matters would be
provided for by regulations to be made by
the executive arm of the Government. These
regulations would be subject to vetting by the Legislative
Council in the normal way. |
| 58. |
The Judiciary has been consulted. Its views have been taken into
account. It has no objections to the proposed alternative arrangements. |
| 59. |
Matters to be dealt with under the new section 8E(1)(d) of the
Societies Ordinance (admissibility of evidence) and 8E(2) could
be provided for in the Bill. |
