Freedom of Association in Hong Kong, Great Britain and The United States - Essay Example

? Introduction In Hong Kong, the principle piece of legislation which details the country's position on Freedom of Association is the Societies Ordinance (Cap. 151). This ordinance is concerned with the registration of societies, and the rights of societies, so it implicates Hong Kong's Freedom of Association. In order to fully understand the impact of this piece of legislation, it has to be broken down in pieces and analyzed in this manner. First of all, Section 5 of this law states that societies within Hong Kong must register with the Societies Officer within 1 month of the formation of that particular society. The application form for registering must include the name of the society, along with the society's purpose.1 That said, societies may be exempt from the registration requirement if they are to be established for the benefit of a religion, a charity, or social and recreational purpose.2 The Societies Officer may refuse to register a society if the Office believes that refusing to register the society is in the interest of the people or the government, in that the society somehow implicates national security, public safety, public order, or the rights and freedoms of others.3 Furthermore, the Societies Officer may refuse to register a society which has connections with the government of Taiwan, or has a connection with a political organization in Taiwan.4 The Societies Officer may also cancel the registration of a society, or the exemption from registration for a society, for the same reasons why The Societies Officer may deny an initial application.5 The Societies Officer is to give societies an opportunity to be heard on the subject of why they should be able to be registered, unless the Societies Officer considers the circumstances to be impracticable in allowing the hearing.6 The society in question has to give the Societies Officer its response within 14 days of the denial, and this response must detail why the refusal was inappropriate. In the meantime, the society may operate until they get a final decision on whether or not the societies officer may refuse their application for registration.7 If the society gets a final refusal from the Societies Officer, than this society, within 30 days after the final decision, may appeal its case to the Chief Executive in Council.8 If the society appeals, then the society may function during the period of time that the Chief Executive in Council is considering the appeal.9 If the Societies Officer cancels a registration, the society has a right to appeal this as well.10 What the effect is of not being able to register with the Societies Officer, or having a registration cancelled, is draconian – that society would have to cease operations, and if they do not, the officers of the society are subject to fine or imprisonment.11 Moreover, “triad,” or criminal, societies are automatically deemed to be unlawful.12 Discussion Hong Kong In looking at this portion of the Societies Ordinance, it becomes clear that there is not truly freedom of association in Hong Kong. A number of elements in the ordinance stand out. First, the Societies Officer appears to have a great degree of power in deciding who gets registered as a society and who does not. The Societies Officer must only decide that national security, public safety, public order, or the rights and freedoms of others is implicated by the formation of a particular society, and this is deemed as a reason to deny that society the benefits of registration.13 These exceptions are vague and overly broad, and seems like a great number of legitimate societies could somehow fit into one of the categories above. For instance, if a society is deemed to infringe on the rights and freedoms of others, what does that mean? What rights? What freedoms? Also, how does the Societies Officer determine if public order or public safety are implicated? National security may seem obvious, in that if a society is formed which is in opposition to national security goals, then this society may not be registered, but even this term is vague. As it is, this law seems that it would be ripe for corruption. Perhaps there could be societies whom are attempting to limit competition from other societies, so they would try to influence the Societies Officer by graft or perhaps merely by presenting “evidence,” however flimsy, that an organization is somehow denying the rights or freedoms of others. This would not be difficult to do, considering how vaguely the law has been written. Moreover, since there has yet to be a High Court case regarding this law, the Societies Officer is not provided with any real guidance on how to interpret the various provisions of the law. The Societies Officer is not provided with a guideline on what types of actions that a society takes that might be deemed to be against national security, others freedoms and rights, public safety or public order.14 Without court cases interpreting these vague terms, it would seem that these terms may be interpreted according to the personal definitions of the Societies Officer. In other words, these terms mean what the Societies Officer says that they mean. Perhaps most outrageous is the fact that the Societies Officer may, in his or her discretion, refuse to give the society a chance to be heard, if the circumstances make being heard “impracticable.”15 The only restriction here is that the Societies Officer must be reasonable in this denial.16 It seems that the only recourse that a society might have in overcoming the rather arbitrary decision that a Societies Officer might make in denying a society's registration would be the chance to be heard before a tribunal, and the law does not provide for this. It does, however, provide for the chance to be seen before the Chief Executive Council, but the Societies Officer may refuse even this, and the grounds for this refusal is as vague as the grounds for refusing the registration itself. What constitutes “impracticability?” Can the Societies Officer state that the circumstances for the society being heard are impracticable because the Chief Executive Council would have to travel to hear the case? Because a key witness would have to travel? Because a key witness is ill? Or perhaps it would implicate something more nefarious – the circumstances are impracticable to hear the case because the Societies Officer was bought off by somebody in another organization. As with the denial of the registration itself, the denial of a hearing, because the legislature wrote “impracticable” without any definition or guidance, would be ripe for corruptive influences that would seek to undermine the process. Perhaps this denial of due process, on the caprice of the Societies Officer, is the most egregious element of this law. However, in reading the law, it seems that the review of the Societies Officer decision also implicates another level of egregiousness. This is that, at best, all that a society can hope for would be that they would be heard before the Chief Executive Council.17 As stated above, a tribunal would be a better mechanism for hearing this denial. At least with a tribunal, one can get a variety of opinions and there would have to be a consensus before a decision can be made. The way that the current law is written, however, it is still in the hands of an individual, who is the Chief Executive Council. There is not an element of checks in balances in this law, in that two individuals have complete power of whether or not a society can register. The consequences of a denial of registration is dire, of course, in that the society simply cannot operate if they are refused or their registration is cancelled. Perhaps even more worrisome if the element that states that a society may be refused registration “if the society or the branch is a political body that has a connection with a foreign political organization or a political organization of Taiwan.”18 The said connection between that society and a foreign political organization may be tenuous – this part of the law does not specify degree of connection. The law, does, however, define what “connection” means. The law specifically states that societies may not be financially beholden to any foreign political organization, and this includes loans, and societies also may not be affiliated with any political organization, either directly or indirectly.19 When it comes to political organizations in Taiwan, the law is more specific. A society may not have its policies dictated by any political organization in Taiwan, and no political organization in Taiwan may be involved in the decision making process of the society in question.20 The main problem with this is that this provision of the law necessarily tamps down dissent by restricting the activities of societies to those non-political, or, at least, non-foreign political. Another problem is that foreign political organizations may be, and probably are, perfectly legitimate organizations, yet a society in Hong Kong cannot have any connection with them. Moreover, political organizations of Taiwan are particularly singled out, and this seems to be because of the tenuous relationship between China and Taiwan,21 and would seem that this is an effort for the Chinese government to control Hong Kong by ensuring that societies with connections to Taiwanese political organizations do not get a foothold in Hong Kong. What also must be noted is that religious organizations are exempt from having to register.22 This is particularly curious, in that religious organizations may also be organizations which restrict the rights and freedoms of others, or who may be a threat to national security or public order, which should violate other provisions of the Societies Ordinance.23 For instance, a radical Muslim group which perhaps might have terroristic inclinations would presumably be exempted from registration. So would churches that preach anti-gay discrimination, to the extent that homosexuals are in danger from the extremist views espoused by these religious organizations. Yet these organizations get a free pass under this law. The implication is that this law is more concerns with political dissidents and extremists then it is religious ones. Thus, it sees that Hong Kong does not really have freedom of association. The societies are subject to much caprice and arbitrariness in this law, because of the vague terminology, the fact that there is only one person who may decide to deny registration, and, if appealed, only one person who decides on the appeal, and the fact that societies which are connected to foreign political organizations, in particular Taiwan, may not register. This means, in essence, that Hong Kong is interested in tamping political protests, which has formed the bedrock of the freedom of association in other common law countries. The countries which will be examined and compared will be Great Britain and the United States. Both of these countries protect the freedom of association and the freedom to assemble much more openly than does Hong Kong. In neither country is a society or organization required to register with a societies czar, and, in both countries, organizations and societies are free to operate, even if they are associated with foreign political organizations. Perhaps most importantly, the individuals in these societies may have their cases reviewed by tribunals if their freedoms are infringed upon. Great Britain Freedom of assembly in Great Britain has been established and reinforced through a series of court cases which have defined the parameters of this freedom in this country. Although freedom of association in Great Britain is not absolute, the mere fact that it has high court cases which have defined this right sets it apart from Hong Kong, which, to date, has had none. One of these cases is Hubbard v. Pitt.24 In this case, the defendants picketed the offices of the plaintiffs, because the defendants felt that the plaintiffs, real estate professionals, were denigrating the neighborhood in which they lived. In affirming the right of the defendants to picket the plaintiffs, the court in Hubbard stated that Britains have the right to peaceably assemble, as long as they are not inciting violence or obstructing traffic.25 The contrast between British Law and Hong Kong Law may be seen in this case. Whereas, with Hong Kong Law, societies may not register, therefore, may not be allowed to operate, if they infringe upon the rights of others. In the case of Hubbard, the group in question was arguably infringing upon the rights of the plaintiffs to do business, in that they were picketing this business. Therefore, in Hong Kong, this group would not be allowed to assemble, or, at least, would not be able to be a registered society if their stated case was that they were to assemble to picket another business. Yet, in Great Britain, the fact that this group infringed upon the plaintiff's rights was not enough to denigrate their own rights to peaceably assemble. Moreover, the justice in this case explicitly stated that people have the right to assemble, as long as they do not incite violence or obstruct traffic. There was nothing in the decision which would imply that people do not have the right to assemble if they are somehow associated with a political group. Hirst v. Chief Constable for Western Yorkshire26 is another case which deals with the freedom to assemble and associate in Great Britain. In this case, a group of animal rights protestors were arrested for allegedly obstructing a highway. The proper use of the highway, according to the magistrate who issued the arrest warrant, was to pass and repass about one's business. However, the Divisional Court in this case stated that reasonable use of the highway was a question of fact, and that this question of fact needed to be balanced against the protestors' freedom to peaceably assemble. In other words, there had to be a balance of equities – the freedom of the protestors on one side, and the need to keep order on the other side. The Divisional Court in the Hirst case thus came down on the side of the protestors in this particular case.27 Once again, this case shows the sharp contrast between British law and Hong Kong Law. Whereas, in Hong Kong Law, any group which would be possibly an affront to public order would be denied the right to register.28 This would undoubtedly mean that the protestors in the Hirst case would not be able to peaceably assemble in Hong Kong. This is because, by putting it into the Societies Ordinance that any group that would infringe upon public order would be banned, the Hong Kong legislature is essentially signaling that there would not be a balancing of equities – public order trumps the freedom to assemble in Hong Kong, full stop. The United States In the United States, the freedom of association is one which is sacrosanct and guaranteed by the United States' Constitutional Bill of Rights. Charles Rice, author of Freedom of Association asserts that the freedom of association pertains to four major categories – religion, livelihood, political parties and subversive associations.29 One of the earliest cases regarding the freedom of association is NAACP v. Alabama.30 Although the freedom of association was not new at this time, 1958, this case was still considered to be a landmark, in that it established that private groups have the right to keep confidential memberships.31 In this case, the State of Alabama was attempting to get the list of individuals in the organization, in an attempt to expel the group from the state for violating business laws. However, the Court in Alabama stated that the group did not have to give the State of Alabama its list, stating, in the process, that “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Claus of the Fourteenth Amendment, which embraces freedom of speech.”32 This case, and the parameters set by this case, may be contrasted with Hong Kong, which, in its Societies Ordinance, states that Societies must supply information, at any time, to the Societies Officer. Further, there is not a restriction upon what information the Societies Officer may demand – the request must simply be “reasonable.”33 Thus, the implication is that if the Societies Officer wanted names from a society, then the Societies Officer may, in Hong Kong, get this information. In contrast, in America, the membership may be secret and the government or any other body may not compel this information to be supplied. Another major right in America is the right to join labor associations. This particular right has a storied history which parallels the restrictions that Hong Kong has on societies. Whereas, in Hong Kong, societies may not be registered if they infringe upon the rights of others, this very excuse was used in America to deny workers the right to assemble in the 19th Century. For instance, in Commonwealth v. Pullis34 the trial judge found that unions were illegal because they injured non union members. However, this case was supplanted by Commonwealth v. Hunt,35 which stated that unions were not illegal, unless the object of the union was criminal.36 The Supreme Court later affirmed the rights of labor unions to assemble without interference from employers, granting an injunction against an employer who attempted to interfere with the worker's association rights.37 Labor unions were further protected by the National Labor Relations Act.38 This Act protected labor unions from employers by restricting the means that employers may use to respond to acts of organized labor, and protected a wide range of activities in which labor unions may engage. Once again, this may be contrasted with Hong Kong, in that Hong Kong specifies that societies which infringe upon the rights of others may not register.39 Because labor unions would potentially infringe upon the rights of employers, in that employers would no longer have the freedom to pursue any kind of business practice they choose, labor unions would presumably run afoul of the Societies Ordinance act. Another basic right that Americans enjoy is the right to associate with political parties and pressure groups. Since there is not a restriction on this, in that Americans may associate in groups which are foreign political parties, this right is once again in contrast to Hong Kong, which specified that societies may not be registered if they are connected to foreign political groups, in particular, Taiwanese political groups.40 The right to join political parties and pressure groups is considered to be a fundamental right due to the case of State ex rel. Shepard v. Superior Court 60 Wash. 370 (1910).41 The parameters of this freedom of association is that they may not be discriminatory – for instance, one political group was founded as an association consisting only of white voters in the county, and excluded blacks from its primary election. The Supreme Court struck this association down on the grounds that it was discriminatory and was founded upon a discriminatory premise.42 While the right to join political groups stands in contrast to Hong Kong, the right to join pressure groups is even more in contrast to Hong Kong's Societies Ordinance. For instance, the Societies Ordinance states that societies may not be registered if they somehow implicate public order, and pressure groups are often disruptive of public order.43 The right to join pressure groups was established in response to the need to influence the political process, as well as the need to provide information for guiding the political process.44 Moreover, as with all other associations, the freedom to join pressure groups is considered to be fundamental,45 although it began as an ancillary right.46 Because the right is fundamental, it may not be infringed upon unless there is a compelling state interest, and the infringement is narrowly tailored to achieve this interest.47 In other words, in America, the burden of proof to infringe upon a group which is exercising its right to associate in its function of political pressure is firmly upon the state, even if that group is disrupting public order.48 In contrast, the burden of proof in Hong Kong is firmly upon the society to show that it would not be disruptive of public order, due to the Societies Ordinance.49 In America, there is not only the right to protest and join political parties, but also a fundamental right to join subversive associations. Justice Brandeis established this in Whitney v. California,50 with dicta in that case, and this notion has gained support in more recent Supreme Court decisions.51 That the right to join subversive associations which may undermine the government of the United States is a fundamental right in America provides perhaps the most striking contrast with Hong Kong. After all, Hong Kong will not register any group that would go against public order, and will not register any group which is affiliated with foreign political groups, particular Taiwan.52 As noted above, the apparent concern that Hong Kong has in not registering groups which are associated with a foreign political group or Taiwan political group is apparently an effort to tamp dissent which may arise from being a part of these groups. Therefore, Hong Kong does not allow societies which might undermine the government. In contrast, America states that Americans are free to join these groups, and have a fundamental right to do so.53 Conclusion Hong Kong does not truly enjoy the freedom of association, because there are simply too many restrictions on this “right.” A society may not be registered if it interferes with the public order, or infringes upon the rights of others. A society may not be registered if it is in any way connected to or affiliated with a foreign political party, particular a Taiwanese political party. The Societies Officer has the final say on these vague terms, and may even prevent a hearing on the denial of registration if the circumstances for the hearing is “impracticable.” This law makes clear that the right to assemble is very limited, and the government may decide who may register and who may not, and the parameters for such a denial is not even clear. The onus therefore is clearly on the society. In contrast, in Great Britain there is a relatively unfettered right to assemble, unless the assembly incites violence or hampers the public roadway. In America, the right is even more unfettered, and the subject of a great many court cases extolling this right. The right is deemed “fundamental” in America, therefore a state may not infringe upon it unless there is a compelling state interest, and the infringement is narrowly tailored to advance this interest. Therefore, the onus is clearly on the state when infringing upon this right. Americans even have a fundamental right to join subversive organizations, or at least this is what is implied by Brandeis. When Hong Kong's law is contrasted with the laws of truly free societies, one sees just how little freedom the Hong Kong people really enjoy. Bibliography Commonwealth v. Hunt 4 Metcalf 111 (Massachusetts, 1842) Commonwealth v. Pullis (Philadelphia Mayor's Court) (1806) Hirst v. Chief Constable for Western Yorkshire (1986) 85 Cr App R 143. Hubbard v. Pitt [1976] QB 142. Kastner, Jens. “China Blocks Hong Kong-Taiwan Embrace,” Greater China 16 Feb. 2012. 18 Feb. 2012 NAACP v. Alabama 357 U.S. 449 (1958). National Labor Relations Act 29 U.S.C. §§ 151-169. Rice, C. (1962) Freedom of Association. (New York: New York University). Sherbert v. Verner 374 US 398 (1963) Societies Ordinance (Cap. 151) State ex rel. Shepard v. Superior Court 60 Wash. 370 (1910). Terry v. Adams 345 U.S. 461 (1953). Texas & New Orleans R.R. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548 (1930) United States v. Cruikshank 92 US 542, 552 (1876) Whitney v. California 274 U.S. 357 Read More