June, 2005

Highest Court's Falun Gong Ruling Protects the Right to Demonstrate

Rose Wu

The Court of Final Appeal (CFA) on May 5 unanimously overturned the convictions of eight Falun Gong practitioners on charges of wilfully obstructing and assaulting police officers acting in the execution of their duty. The case emerged from a peaceful March 14, 2002, protest outside the central government liaison office during which 16 Falun Gong members were arrested. The eight appellants in this case resisted with two of them biting arresting officers.

All 16 were convicted on all charges by a magistrate, but the Court of Appeal quashed the obstruction conviction, saying the minor obstruction caused by the small protest could not be regarded as unreasonable, especially as the constitutionally protected right to demonstrate applied. However, the Court of Appeal judges, in a ruling handed down 14 months after the appeal was heard, upheld the other convictions against the eight, finding that the police officers were acting in due execution of their duties.

The recent judgment, however, while reiterating that fundamental freedoms should be given a generous interpretation, also found that the arrests were unlawful, and thus, the wilful obstruction and assault convictions had to be quashed.

This case has raised concern among some members of the public, i.e., to what extent should the courts balance the protection of an individual's rights against the maintenance of public order. Critics of the Falun Gong judgment may well feel that it put the interests of individuals ahead of those of society as a whole.

However, Kan Hung-cheung, the spokesman of Falun Gong, argued that by upholding justice in this case the court has upheld the freedoms of all Hong Kong people to hold peaceful protests and be entitled to the full protection of the law.

In Hong Kong, or in any other city in the world, demonstrations can be a annoyance, especially to those who find the protesters' messages disagreeable or offensive. This irritation though is no excuse to silence the demonstrators on the excuse of keeping the venue free of obstruction. We do not have to agree with Falun Gong's message to support its right to stage a demonstration where it can be heard by the intended audience. Their choice of venue was part of their message. Therefore, it was unreasonable for the police to attempt to restrain them from staging a demonstration based on the pretext of keeping the venue free of obstruction. As the court rightly pointed out, "When obstruction results from persons exercising the constitutional right to demonstrate, the importance of that fundamental right must be given substantial weight in deciding whether the obstruction is reasonable."

It is also important for the courts to base their rulings on opinions free from any political concerns and in strict accordance with legal principles. The independence of the judiciary and the rule of law must be preserved; judges are not politicians! The upholding of rights protected by the Basic Law may go against the government's interests and the power of the police. The judges have defended not only the right to protest though but also the right of people not to be arbitrarily arrested and detained. These rights contribute to Hong Kong's vibrant society and its political system.