Marching Season

"In Sweden, event organisers must pay a non-refundable fee when applying for a protest permit and provide a comprehensive risk assessment."

Hong Kong has recently seen its first street protests since the 2019/20 troubles and Covid ended. The 2020 National Security Law stopped the violence that spun off from the anti-extradition protests. Covid then came along to limit gatherings.

Hence, the media attention two weeks ago when a procession of Tseung Kwan O residents against a planned reclamation went ahead. 

I've policed hundreds of such events, most passing without a hitch. But something changed after the 2014 Occupy Central protests. Then, with grim predictability, peaceful demonstrations were often hijacked by violent types wearing distinctive black outfits and face covers. 

Geared up for a fight, they'd emerge at the end of an event to confront the police. The result was several hours of mayhem before officers restored order with arrests or dispersal. For months in 2019, this sequence repeated. 

For the Tseung Kwan O march, the Commissioner of Police issued a letter of no objection and imposed conditions. The law grants him such powers. However, one requirement drew much comment. Each participant wore a badge - an unprecedented rule many saw as "very strict." And the optics of the badges was easy to spin in the media as repression. 

Yet, from a police perspective, such identification makes sense. In the past, many so-called first-aiders, self-appointed citizen journalists and monitors joined protests. That they later engaged in rioting and violence revealed the lie of their claimed status. Unfortunately, this infiltration undermines legitimate protest and puts everyone at risk while complicating the role of event organisers and the police. 

Thus, wearing identification could deter the hotheads, allowing the protest to proceed in a safe and orderly manner. 

The right to protest is protected by law. Article 27 of the Basic Law is clear, "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration". Also, the new national security law at Article 4 stipulates that "the freedoms of assembly, of procession and of demonstration shall be protected in safeguarding national security in Hong Kong."

Further, under the Public Order Ordinance, the organisers of public assemblies must seek a letter of no objection from the Commissioner of Police at least seven days before the proposed event. Public meetings with no more than 50 people or public processions with up to 30 marchers are exempt. However, the letter of no objection can impose conditions on the event organisers, who must comply.

Over the years, all these laws faced deep scrutiny by the courts. For instance, in 2005, the Court of Final Appeal stated that the police must apply a "proportionality test" before objecting or imposing conditions on an assembly. The judgment set out that the freedom of peaceful assembly is a fundamental right. Note the word "peaceful". 

Moreover, the court agreed that the police are entitled to apply conditions for "national security or public safety, public order, the protection of public health or morals or protection of the rights and freedoms of others."

Still, Hong Kong’s critics cite international standards, although I'm unaware of any specifics in international law that mandate how protests are policed. While comparisons with elsewhere suggest Hong Kong is not alone in adopting pre-approval and conditions. 

For example, you need a permit to hold an outdoor assembly in Taiwan. Singapore also has a permit system designed to regulate all demonstrations – even involving a single individual.

In Washington DC, the National Park Service Police, the US Capital Police and the Metropolitan Police of the District of Columbia operate a permit system for protests. Likewise, a protest procession in New York requires a permit from the police, who can impose conditions. 

Meanwhile, in Britain, the activities of militant environmentalists and others prompted a tightening of the law. It cannot go unremarked that proposed regulations in the UK are arguably more draconian than Hong Kong's approach. Even without the new law, the British police were more than willing to break up peaceful protests like the Sarah Everard case. 

In Sweden, event organisers must pay a non-refundable fee when applying for a protest permit and provide a comprehensive risk assessment. In addition, the application process makes it clear that the event organiser is accountable for the safe conduct of the event. But, again, the police can impose conditions. 

Perhaps Hong Kong could learn from Canada (just joking). Last year, Prime Minister Trudeau invoked the Emergencies Act to freeze the bank accounts of those linked to protests in Ottawa. He granted himself the power to act without going through the courts. These measures extended to cancelling the insurance on protester's vehicles, forcing them out of business. Strangely, these rather harsh measures earned no rebuke or sanctions on Trudeau from those who vent against less ardent actions here. 

This quick trot through the regulations applied elsewhere reveals Hong Kong is broadly in line with practice elsewhere. But, yes, some specific conditions may vary as each place has its needs.

Lastly, for sure peaceful protests have a role to play in allowing citizens to express their views and ensure good governance. After all, if social grievances build up without a channel for venting, the consequences for community harmony can be dire. Listening to official announcements, I sense the government has heard the criticisms and will no doubt wish to test the water before adjusting the condition imposed. 

One critic claims the rules will discourage those who wish to remain anonymous from joining protests. Well, I could say, "That is the point". Because unfortunately, the experience of 2019 saw many “hidden faces” smashing up our city, assaulting the innocent, rioting and causing general mayhem. Do we want to return to that?