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任何一人以上講獨組織,保安局都可宣佈為非法社團?

2018/7/18 — 11:39

Any Pro-independence Groups of More than 1 Person Could be Declared Illegal Societies by the HK Secretary for Security (English version below) 

香港警方已向保安局局長建議,根據社團條例第一五一章第八條,為國家和公共安全著想,禁制口頭主張獨立的香港民族黨。今日(編按:文章來稿於七月十七日)中午,保安局局長李家超表示,民族黨有廿一日時間申辯為何不應被禁。與此同時,李家超告訴記者,任何任何一人以上組織都視為社團。社團條例主任,如有證據,可舉報這些社團危及國家安全。換言之,如果兩名香港高中學生組織個讀書會,討論香港獨立,該小組可視為危害國家安全,保安局可宣佈為非法社團。按:社團條例中文版,社團定義為:「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」;社團條例英文版則並無「一人或以上」等字眼:「本條例條文適用的任何會社、公司、人的合夥或組織,不論性質或宗旨為何。 」

界定國家安全時,李家超話係保衛中華人民共和國領土完整及獨立自主,而公民權利和政治權利國際公約第廿二條亦有這個禁制社團的理由。然而,公約第廿二條將維護國家安全理由與民主社會掛鉤,而香港和中國並非民主社會。

廣告

以國家安全為由,禁止社團運作,乃九七前所無,九七後臨時立法會所加,正如公安惡法,不少已為彭定康所廢,但臨時立法會又恢復返。

這是香港九七年移交給中國以來,首次使用社團條例。九七之前,社團條例一貫用來打擊黑社會。如今,正如公安條例,社團條例用來鎮壓持異見人士。其實,社團條例有甚於公安條例。公安條例都要至少三人方構成非法集結,社團條例,根據李家超的解釋,就兩個人都可以組成非法社團。

廣告

The Hong Kong Police has suggested to the Secretary for Security that the Hong Kong National Party, which has just verbally advocated HK independence, be banned in accordance with Section 8 of Cap. 151, the Societies Ordinance for the sake of national and public security. At noon today (July 17), John Lee, Secretary for Security, said that the party has 21 days to justify why it should not be banned. Meanwhile, Lee told reporters that any groups of more than one person were considered societies. And societies officers, with evidence, may claim that such societies endanger national security. In other words, if two HK high school students organize a study group discussing HK independence, the group may be taken as endangering national security and declared by the Secretary for Security an illegal society. The English version of the Societies Ordinance, defines society as "any club, company, partnership or association of persons, whatever the nature or objects, to which the provisions of this Ordinance apply" rather than "any club, company, partnership or associations of more than one person, whatever their nature or object may be", as in the Chinese version.  

In explicating “national security,” Lee said that it was related to the safeguarding of territorial integrity and the independence of the People’s Republic of China, and this ground for prohibiting societies was also stated in Article 22 of International Covenant on Civil and Political Rights. Article 22, however, associates the ground with democratic societies, and HK and China are not democratic societies. 

It would be the first time since the city’s 1997 Handover to China that the section of the law has been used. Before 1997, it had been used to crack down on mafias. Now, just like the Public Order Ordinance, it is used to suppress political dissidents. In fact, national security as a reason for banning societies was added by the Provisional Legislative after the 1997 handover, just as controversial parts of the Public Order Ordinance were removed by Chris Patten, the last British governor of HK, but reinstated by the Provisional Legislature. 

This morning (July 17), Andy Chan Ho-tin, convener of the pro-independence Hong Kong National Party, disclosed to various media that police officers served him with a large pile of documents, stating that an assistant society officer of the HK Police has suggested to the Secretary for Security that the party be banned, in accordance with the Societies Ordinance (Sect. 8, Cap. 151) for national and public security. During a press conference at noon, John Lee, Secretary for Security, said that the HK National Party has 21 days to justify why it should not be prohibited. 

When a reporter pointed out the fact that Chan had not registered his party as a society, Lee said that, according to the Ordinance, any groups of one or more are considered to be societies. This unheard-of interpretation of the Societies Ordinance, according to which a two-person group just verbally promoting independence may already be an illegal society, goes even further than Article 18 (Unlawful Assembly) of the Public Order Ordinance, which take at least three people to meet the definition of an unlawful assembly ("When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly.") 

In explaining “national security,” Lee said it was related to the safeguarding of territorial integrity and the independence of the People’s Republic of China, that the Societies Ordinance's restriction of the right freedom of association is in compliance with Article 22 of International Covenant on Civil and Political Rights. "National security", as a ground for prohibiting societies, however, is absent in the pre-1997 ordinance. It was added by the Provisional Legislative Council handpicked by Beijing in 1997. 

So much the more, according to Article 22 of International Covenant on Civil and Political Rights: 

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

Note that "the interests of national security" in this article pertains to a democratic society. However, Hong Kong, due to The National People's Congress's repeated interpretations of the Basic Law, is not yet a democratic society. Around half of the members of the Legislative Council are not directly elected and the Chief Executive is handpicked by Beijing.

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