Joe Wong and Denny To, former members of now-defunct Confederation of Trade Unions, earlier notified the police for holding a march on Labor Day (1 May). However, Wong suddenly withdrew the notification on 26 April. Although Wong did not publicly explain the reason for withdrawing the notice, To told the press that Wong disappeared from his home in the morning on 26 April; and after he regained his freedom in the afternoon, he had suffered an emotional breakdown, apparently under great pressure. To said that Wong could not disclose more details due to Article 63 of the National Security Law (“NSL”). Secretary for Security Chris Tang responded that cancelling a march was a responsible thing to do if anyone believed that they were incapable of making the march safe or orderly.
We express grave concern and regret that the Hong Kong government refuses to fulfill its positive duty under international human rights law and domestic laws to provide assistance and take measures to protect citizens’ right to freedom of assembly, which is a constitutional right guaranteed by the International Covenant on Civil and Political Rights, the Basic Law and the Hong Kong Bill of Rights.
We have to stress that not only should the Hong Kong government refrain from arbitrarily restricting and interfering with the exercise of the right to procession and assembly, but it also has a positive duty to take the initiative to provide assistance and take measures to facilitate the processions and assemblies to conduct in a peaceful and smooth manner. In recent months, there have been at least three cases of organizers cancelling rallies or assemblies “voluntarily”. We are very concerned that organizers’ cancellation of rallies or assemblies under unusual pressure has become a new mode of suppressing the civil society in Hong Kong.
Regarding the international standards, the United Nations Human Rights Committee has clearly stated in its General Comment 37 that States parties are obliged to allow peaceful assemblies to take place without unwarranted interference and to facilitate the exercise of the right and to protect the participants. The imposition of any restrictions should be guided by the objective of facilitating the right, rather than seeking unnecessary and disproportionate limitations on it. As to the positive duty, the Committee rightly opined that States parties “have certain positive duties to facilitate peaceful assemblies and to make it possible for participants to achieve their objectives. States must thus promote an enabling environment for the exercise of the right of peaceful assembly without discrimination, and put in place a legal and institutional framework within which the right can be exercised effectively.”
In Leung Kwok Hung v HKSAR [2005] HKCFA 41, the Hong Kong Court of Final Appeal has also unambiguously stated: “… it must be pointed out that the right of peaceful assembly involves a positive duty on the part of the Government, that is the executive authorities, to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully.”
The Spokesperson of HKCHR said today:
“The Hong Kong government has to discharge its positive duty to assist organizers in holding peaceful assemblies. Generally speaking, as long as the purpose and theme of the assembly is not to promote illegal acts, violence, hatred and discrimination, it should be allowed to take place. The recent spate of “responsible” cancellations of assemblies by organizers is an anomaly and reflects the possibility that the authorities are using informal means to prevent the public from holding assemblies of a particular nature.”
“We are very concerned that, after the anti-extradition movement in 2019, the Hong Kong government continues to restrict the exercise of the right to freedom of assembly by different legal and administrative means. We are particularly concerned that Article 63 of the NSL may be invoked to prevent event organizers from publicly explaining their situations, including disclosing details of their encounters or decisions, so that the government can evade public accountability.”