The International Human Rights Framework on the Right of Peaceful Assembly
China is a signatory but not a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
There is no regional human rights treaty to which China can become a State Party.
Article 39 of the Basic Law of Hong Kong provides that the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. Any legislation inconsistent with the Basic Law can be set aside by the courts in Hong Kong.
Taiwan is not a State Party to the ICCPR and cannot adhere as it is not considered an independent state by the United Nations.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 35 of the 1982 Constitution of the People's Republic of China (as amended through 2018) provides that: "Citizens of the People's Republic of China enjoy freedom of ... assembly, ... of procession, and of demonstration."
Article 27 of Chapter III of the Basic Law stipulates that: "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration". This provision, according to judicial decision, is stated in absolute terms.Chan Kin Sum v. Secretary for Justice  2 HKLRD 166, para. 60.The exercise of the constitutional rights of freedom of assembly and of demonstration may, however, be limited in practice, according to a 2013 decision by the High Court.Turbo Top Ltd v. Lee Cheuk Yan and Others, Judgment, 6 May 2013, HCA694/2013  3 HKLRD 41, at para. 44.
Under Article 14 of the Republic of China’s Constitution of 1947, “The people shall have freedom of assembly and of association”.
In Mainland China, the 1989 Assemblies, Processions, and Demonstrations Law (as amended) is the primary legislation governing assemblies. The term "assembly" used in the Law means an activity in which people gather at a public place in the open air to express views or aspirations.
Article 7 of the Law stipulates that: “for the holding of an assembly, a procession or a demonstration, application must be made to and permission obtained from the competent authorities in accordance with the provisions of this Law.” Article 8 then requires that an application for permission to assemble must be made at least five days in advance:
There must be a person or persons responsible for the holding of an assembly, a procession or a demonstration. For the holding of an assembly, a procession or a demonstration for which an application has to be made under this Law, the responsible person(s) must submit an application in writing to the competent authorities five days prior to the date of the activity. The application shall specify the purposes of the assembly, procession or demonstration, how it is going to be conducted, the posters and slogans to be used, the number of participants, the number of vehicles, the specifications and quantities of the sound facilities to be used, the starting and finishing time, the places (including places where the participants assemble and disperse), the route, and the name(s), occupation(s) and address(es) of the person(s) responsible for the assembly, procession or demonstration.
It is further provided that: “No citizens shall, in a city other than his place of residence, start, organize or participate in an assembly, a procession or a demonstration of local citizens”Art. 15, 1989 Assemblies, Processions, and Demonstrations Law (as amended).and foreigners in the territory of China "may not, without approval by the competent authorities, participate in an assembly, a procession or a demonstration held by Chinese citizens”.Art. 34, 1989 Assemblies, Processions, and Demonstrations Law (as amended).
Article 23 provides as follows:
No assembly, procession or demonstration shall be held within a peripheral distance of 10-300 metres from the following places: (1) premises of the Standing Committee of the National People’s Congress, the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procuratorate; (2) places where state guests are staying; (3) important military installations; and (4) air harbors, railway stations and ports.
With respect to assemblies, the Hong Kong Bill of Rights Ordinance,S. 8, Art. 17, Cap.383.which was modelled on the ICCPR, replicates the wording of Article 21 of the ICCPR: "The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."
The 1967 Public Order Ordinance (as amended) is the primary legislation in Hong Kong governing the holding and conduct of public assemblies.
The Public Order Ordinance requires advance notification for public processions and public meetings. Seven days' notice of an intention to hold a public procession (other than for the purposes of a funeral) or a public meeting must be given to the Commissioner of Police.Ss.13A(1)(b) and 8(1), Public Order Ordinance.The Commissioner has the discretion to accept shorter notice but he must accept shorter notice where he is reasonably satisfied that prior notice could not have been given. An example is a spontaneous protest by dismissed employees where a business has suddenly closed down and earlier notice could not have been practicably given. There is no statutory minimum notice in the law.
Under the 1997 amended law, the government in Hong Kong has the power to prohibit a public meeting or procession on the grounds of "national security" and "the protection of the rights and freedoms of others". This is in addition to the already existing grounds for prohibition under the law of "public safety" and "public order".
On 28 May 2020, in the wake of serious challenges to public order, the National People’s Congress adopted the Law on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). It enjoys a special status a national law applied under Article 18 of the Basic Law. The purpose of the NSL includes the safeguarding of national security; preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to Hong Kong. Article 4 of the NSL stipulates that human rights and fundamental freedoms under the laws of the Hong Kong Special Autonomous Region are to be respected and protected. This includes the freedom of assembly.
In early October 2019, the Hong Kong government invoked the Emergency Regulations Ordinance (ERO) to implement a law prohibiting the wearing of masks during protests. The law will ban protesters from covering their faces in full or partially during protests. Anyone who wears mask at lawful rallies and marches, unlawful or unauthorised assemblies, or at riots could be sentenced to a year in jail and a fine of HK$25,000. Exemptions include those wearing masks at protests for professional or paid work, or for religious or medical reasons.
Shortly after the announcement of the ban on wearing of masks, two protesters filed an application to the High Court in Hong Kong to ask for an injunction on the basis that the mask ban would constitute “disproportionate interference” with the right to peaceful assembly. In his decision, Justice Lam allowed the ban to proceed on the grounds that the city was facing a “dire situation” of escalating violence. In late November 2019, the High Court first overturned the ban and then suspended the application of its judgment for seven days.
The Assembly and Parade Act, as amended in 2002, governs public assemblies in Taiwan. A permit is generally required for public assemblies, which must be requested six days in advance. There is a presumption of approval, however, unless, for instance, the applicant is less than 20 years old, not a Taiwanese national, or there is clear evidence of a risk to life, bodily integrity, or property or a threat exists to national security or social order. An exception to the six-day application process pertains to spontaneous assemblies.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The People’s Police Law (as amended in 2012) contains several articles governing the use of force by police officers. According to Article 8:
If a person seriously endangers public order or constitutes a threat to public security, the people's policemen of public security organs may forcibly take him away from the scene, detain him in accordance with law, or take other measures as provided by law.
The People’s Police Law gives police officers the right to disperse assemblies "and forcibly take away from the scene or immediately detain persons who refuse to obey".Art. 17, People’s Police Law of the People's Republic of China (as amended in 2012).The management of assemblies is also regulated by the Law on Assemblies, Processions and Demonstrations (as amended in 2009).See also the Regulation on the Implementation of the Law of the People's Republic of China on Assemblies, Processions and Demonstrations, adopted by the State Council (as amended in 2011).Article 27(3) of the Law authorises police officers to forcibly take away and detain those who refuse to dismiss an assembly, a procession or a demonstration and those who cross the established temporary security lines or enter a certain peripheral prohibited space in an emergency. In using force, however, police officers may not:
- extort a confession by torture or subject criminals to corporal punishment or maltreat them
- unlawfully deprive other people of, or restrict, their freedom of the person, or illegally search a person, his or her belongings, residence or place
- assault another or instigate others to do so.Art. 22, People’s Police Law of the People's Republic of China (as amended in 2012).
According to Section 17(3)(a) of the Public Order Ordinance, a police officer may use such force as may be reasonably necessary to prevent the holding of, to stop, or to disperse, as the case may be, a public meeting, public procession, or public gathering. Under Section.50(2) of the Ordinance, “If any person who may lawfully be apprehended ... forcibly resists the endeavour to arrest him or attempts to evade the arrest, a police officer or other person may use all means necessary to effect the arrest”.
With regard to the use of force for police to maintain peace in an assembly, an updated guideline in force on 30 September 2019 is incorporated in the Hong Kong Police Manual. The police is now afforded greater discretion to cope with the social unrest in Hong Kong. The updated guidelines removed a line that said “officers will be accountable for their own actions”, stating only that “officers on the ground should exercise their own discretion to determine what level of force is justified in a given situation”. Greater use of force is allowed under the new guidelines. When facing “Defensive Resistance”, officers are advised to consider new methods, including tear gas and pepper spray. Officers may also consider using additional weapons such as rubber bullets, water cannon with lachyrmatory liquid, and bean-bag rounds against any cases of “Active Aggression”.
The Police Power Exercise Act (as amended in 2011) governs police use of force. It requires observance of the principle of necessity. When exercising their powers, the police shall wear their uniforms or present their credentials that show their identity. Should the police fail to comply, people may refuse to cooperate with them.
The Act Governing the Use of Police Weapons (as amended in 2002) specifically allows the police to use batons to disperse crowds.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
With respect to firearms, Article 10 of the People’s Police Law allows police officers, "in accordance with the relevant regulations of the State, [to] use arms in case of emergencies such as resisting arrest, rebellion, escaping from prison, grabbing firearms or other acts of violence". This is more permissive than international law allows.
Police General Orders (PGO) 29-03 on “Use of Police Firearms” allows the police to use firearms to protect any person from death or serious bodily injury; or to effect the arrest of any person who has just committed a serious and violent crime and who attempts to evade such arrest, if no lesser degree of force may achieve the purpose. While closer to the position under international law, the permissiveness granted to the police does not comply with the rules laid down.
Under the law as amended in 2002, the police should avoid using lethal force unless an imminent threat exists to the lives of officers or bystanders.Art. 9, Act Governing the Use of Police Weapons (as amended in 2002).
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
China is not a State Party to the ICCPR although Hong Kong is bound by the Covenant.
In August 2019, amid the ongoing protests, the Spokesperson for the UN High Commissioner for Human Rights issued a statement addressing police use of force, which included the following:
The UN Human Rights Office has reviewed credible evidence of law enforcement officials employing less-lethal weapons in ways that are prohibited by international norms and standards. For example, officials can be seen firing tear gas canisters into crowded, enclosed areas and directly at individual protesters on multiple occasions, creating a considerable risk of death or serious injury. The Office would urge the Hong Kong SAR authorities to investigate these incidents immediately, to ensure security personnel comply with the rules of engagement, and where necessary, amend the rules of engagement for law enforcement officials in response to protests where these may not conform with international standards.
Recent events in Hong Kong have raised huge international concern. In June 2019, dozens of people in Hong Kong said they were injured by the police during mass demonstrations against a contentious bill that would allow extraditions to mainland China. By mid-July 2019, protests were occurring against a range of Government policies. These continued in 2020.
National Jurisprudence (Hong Kong)
Kwok Wing Hang and others v Chief Executive in Council (2020)
The Court of Appeal held that the Prohibition on Face Covering Regulation (PFCR) was lawfully enacted and further decided that prohibiting wearing face coverings at unauthorised assemblies was a proportionate measure but the prohibitions on face coverings at public meetings and public processions were not.
The Court of Final Appeal accepted that a peaceful demonstration does not lose its character as such because of an isolated outbreak of violence. Ths is in line with European Court of Human Rights jurisprudence and the Human Rights Committee General Comment No. 37. But the Court observed that what may start as a peaceful demonstration may degenerate into serious public disorder involving hundreds or even thousands of people. The wearing of a facial covering, while it may be a legitimate form of expression or be used for reasons of privacy or a legitimate desire for anonymity, does not lie at the heart of the right to peaceful assembly.
HKSAR v. Chow Nok Hang (2013)
In its decision in this case, 16 HKCFAR 837the Court of Final Appeal stated that the term “peaceful" should "be interpreted to include conduct that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote, and even include conduct that temporarily hinders, impedes or obstructs the activities of third parties." Furthermore, in the course of an assembly, “an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour”.
National Jurisprudence (Taiwan)
In a decision in March 2014 by the Taiwan Judicial Yuan (Case No. 718), it was held that the Assembly and Parade Act, which requires prior authorisation for assemblies of an emergency or spontaneous nature, was unconstitutional in violating the freedom of assembly and the proportionality principle under Articles 14 and 23 of the Constitution, respectively
Views of Civil Society
In early 2021, CIVICUS reported that the authorities have continued the crackdown on activists in Hong Kong with mass arrests of the opposition and activists, charging individuals under the draconian National Security Law and jailing pro-democracy activists, including Joshua Wong, Agnes Chow and Ivan Lam. The ‘Hong Kong 12’ youth activists were also convicted in an unfair trial. There has also been a lack of accountability for police violence during 2019 protests. On the mainland, activists and journalists have been arrested, while Zhang Zhan, a 37-year-old former lawyer and citizen journalist was sentenced to four years in jail for her reporting on Wuhan. Human rights groups reported that a big data program for policing in China’s Xinjiang region arbitrarily selects Turkic Muslims for possible detention.
Armed police have been accused of opening fire during past protests in Xinjiang.
With respect to the protests in Hong Kong, Amnesty International issued a report in 2019 (“Beijing’s ‘Red Line’ In Hong Kong”), recommending that the authorities respect and protect rights of all individuals to assemble peacefully and associate freely and ensure those participating in peaceful assemblies are not subjected to the threat of criminal sanctions, and notably the deprivation of liberty.