The Fundamental Freedom of Assembly and Part III of the Public Order Ordinance

Abstract

Part III of the Public Order Ordinance is now the main source of prior restraints applicable to public assemblies in Hong Kong. It is also an important source of 'at the scene' control and dispersal powers. Non-compliance with the prior restraints or disobedience of 'at the scene' orders is punishable according to the criminal provisions contained in Part III. However, since the reunification of Hong Kong and China in 1997, some of the prior restraint provisions have been widely disregarded. Their consistency with the fundamental freedom of peaceful assembly demanded by the International Covenant on Civil and Political Rights (ICCPR) and the Basic Law of the Hong Kong Special Administrative Region has also been questioned. In this article, the author first sets out the fundamental freedom approach by which it is suggested that the consistency of Part III with the ICCPR can best be tested. Then the substance of fundamental freedom of peaceful assembly and its significance in a democratic society is explained. Finally, using afundamental freedom approach, the ICCPR standard for the fundamental freedom of assembly is applied to the terms of Part III.