The Hong Kong government has won an appeal against a court ruling that declared its scheme limiting protesters’ use of the forecourt outside its headquarters unconstitutional and a breach of civil rights.
The Court of Appeal on Friday said it was “perfectly lawful” for the administration to tighten security and concluded that the restrictions imposed were “proportionate to the legitimate aims” of ensuring safe and secure operations of the government headquarters in Admiralty.
It also rejected a suggestion on the symbolic significance of the forecourt, fondly labelled by pro-democracy activists as “Civic Square”, after learning that past town zoning plans actually gave the same name to Tamar Park, located on the other side of the government headquarters.
“Once the so-called symbolic significance attributable to the misnomer of Civic Square is rejected, we cannot see any substantial reduction of the rights of freedom of expression and demonstrations by requiring public meetings … to be held at the designated public activities area or Tamar Park as compared with the forecourt,” the court said.
“For large mass public meetings and processions, Tamar Park is the ideal location.”
But the three judges, led by the Chief Judge of the High Court Mr Justice Jeremy Poon Shiu-chor, also reminded the Director of Administration, responsible for managing the forecourt, to consider the individual circumstances of each case in the actual administration of the scheme and the enforcement of the restriction.
The judicial review applicant Cheung Tak-wing, a retired photographer, has vowed to take his case to the Court of Final Appeal in the name of public interest.
“It’s certainly unreasonable to bar us from protesting on Monday to Friday even after we make an application,” he said, after collecting the 58-page judgment from the court. “That is a 99 per cent exploitation of our rights.”
The forecourt was best known as the base of protesters in a 2012 hunger strike against the proposed implementation of a Chinese national education curriculum in Hong Kong schools.
But it was sealed off with a three-metre-tall fence in September 2014 – in the run up to the Occupy Central movement – which prompted activists to storm the area and triggered an early start to the planned protests.
Three of those involved, student activists Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang, were jailed over the incident, but were later freed by the Court of Final Appeal.
After Carrie Lam Cheng Yuet-ngor became the city’s leader in July 2017, she reopened the square to the public in December, but maintained the condition that those interested in using it must seek prior approval from the director of administration.
The scheme was aimed at striking a balance between the maintenance of orderly and effective operation of government offices and the need to facilitate public expression of opinions.
Interested users are required to make an application to the director for permission, but no public meetings were allowed on workdays.
Cheung’s application in September 2014 to use the forecourt for a public meeting to be attended by about 10 people was refused as the proposed event fell on a Friday.
In November 2018, Mr Justice Thomas Au Hing-cheung of the Court of First Instance found the government’s permission scheme had disproportionately infringed on the public’s rights to freedom of expression, assembly, and to take part in public affairs, as provided by the Hong Kong Bill of Rights and the city’s mini-constitution, the Basic Law.
But the director of administration countered in appeal that Au had erred in neglecting the government’s property rights.
Benjamin Yu SC, for the director, pointed out that the government did not design the forecourt as a place for demonstrations.
Yu also maintained that the restrictions imposed were “proportionate”, because allowing such activities to take place on workdays would increase the likelihood of inconvenience and disturbance to civil servants.
The counsel also drew the court’s attention to other alternative sites for protests, such as the designated public activities area on Tim Mei Avenue.
While the court rejected Yu’s argument on property rights, it accepted that the government had never allowed the forecourt to be used as a place of mass protest and demonstration to the detriment of the normal operation of its headquarters.
“It was therefore perfectly lawful for the director to decide that security measure had to be tightened up as public order events caused serious disruptions to the ordinary business carried on at the Central Government Offices,” the judgment read.
Wong expressed regret at the court decision and said he would be happy to hear further clarification from the Court of Final Appeal.
“The Civic Square is right at the entrance of the Central Government Offices,” he said. “Why should we go to an entirely irrelevant park?”
This article Hong Kong government wins appeal over limiting access to ‘Civic Square’ first appeared on South China Morning Post