HKNP ban crucial start in combating HK separatism

Song Sio-chong discusses legal consequences arising from the ban, including some of the challenges in implementing it

On Sept 24, Secretary for Security John Lee Ka-chiu published an order in the gazette prohibiting the operation or continued operation of the Hong Kong National Party — a separatist group advocating and striving for Hong Kong independence for more than two years. By virtue of Section 8 of the Societies Ordinance, his order will be made with the following conditions:

(a) The societies officer had made such a recommendation to him to ban the HKNP;

(b) The societies officer, usually the commissioner of police, reasonably believed that the prohibition of the operation or continued operation of the HKNP (classified as an unlawful society) is necessary in the interests of national security or public safety, public order or the protection of the rights and freedom of others;

(c) The secretary for security first gave the HKNP an opportunity to be heard or to make representations in writing as to why such an order should not be made.

Pursuant to Article 64 of the Basic Law, the special administrative region government should abide by the law and implement the law. On July 17, the secretary for security delivered more than 800 pages of documents as evidence to the HKNP’s convener, Andy Chan Ho-tin, providing reasons why his party will be rendered an unlawful society as outlined in Section 18 of the Societies Ordinance.

Since the ban has been published in the gazette with immediate effect, the HKNP may appeal to the Chief Executive in Council against it within 30 days; the Chief Executive in Council may confirm, vary or revoke the order.

It is unclear whether the HKNP will appeal to the Chief Executive in Council, who in turn may or may not change the order. Because the HKNP’s various activities regarding Hong Kong independence violated Article 1 of the Basic Law that the Hong Kong SAR is an inalienable part of the People’s Republic of China, the ban on the HKNP received firm support from the central government. Following Article 48(2) of the Basic Law, the chief executive should be responsible for implementation of this law and other laws applicable to the Hong Kong SAR, which comes directly under the jurisdiction of the central government. It is very unlikely that the CE will vary or even revoke the ban with so much solid and legitimate evidence for it.

But the executive ban is just the beginning of a longer process to stop secessionism. The SAR government subsequently may be expected to face two further challenges:

The first is the challenge of a judicial review. Whether the decision of the Chief Executive in Council is final is not mentioned in the Societies Ordinance. No general rule exists in the common law to bar the aggrieved (if any) from obtaining a judicial review, or deprive the courts of the power to grant relief if Andy Chan claims he feels aggrieved by this executive decision. A decision from the Chief Executive in Council is no exception.

The grounds for a judicial review of an executive decision may be classified under four categories: illegality, irrationality, procedural impropriety and proportionality. This may also be extended to a review of the Societies Ordinance on whether the provisions contravene the Basic Law and the International Covenant on Civil and Political Rights as they apply to Hong Kong. The government should be prepared for this challenge. An interpretation on secessionism or Hong Kong independence affecting national security concerns the relationship between the central government and the SAR. Therefore, involvement by the Standing Committee of National People’s Congress is unavoidable.

The second challenge is further criminal offenses by the HKNP. Prohibition of the operation or continued operation of the HKNP is merely an executive punishment for this group. The Societies Ordinance provides criminal punishment for its further violation as well. Any person who is a member of, or who acts as a member of, this unlawful society or attends its meetings or gives it money or any aid (Section 20(1)); who incites, induces or invites another person to become a member or assist in its management and any person who uses violence, threats or intimidation toward any other person to induce him to become a member or to assist in its management (Section 22(1)); and who procures or attempts to procure from any other person any subscription or aid for its purposes (Section 23(1)), shall be liable upon conviction to a fine from HK$20,000 to HK$50,000 and imprisonment from 12 months to two years.

Compared with executive punishments published in the gazette, criminal prosecution may be more difficult to carry out. In such a case, the willingness and wisdom of the secretary for justice and judges to safeguard national security, etc., under “one country, two systems” will also be tested.

But the executive ban is just the beginning of a longer process to stop secessionism. The SAR government subsequently may be expected to face two further challenges...