France’s Anti- cult law and Hong Kong Aurélie FOURNIER Intern 8 to 26 April 2002 This paper represents the views and work of the intern and not necessarily of Civic Exchange. Factual accuracy remains the responsibility of the intern. This paper attempts to present the situation of "sectarian movements" in Hong Kong in the light of the French experience. This paper reviews what happened in France and what could be the further evolution of the situation in Hong Kong. I will base the analysis on the French situation, especially with the new anti-cult law. I will consider if such a law may be passed in Hong Kong, the positive and negative aspects of the French law and, and above all, if Hong Kong needs an anti-cult law. I. Presentation of "sectarian movements " in France and Hong Kong A. What happened in France? Over the years, numerous tragedies took place in the world where members of “sects” died. For example, the Order of the Solar Temple, an extremist group, became "famous" for its 5 murdersuicides in Canada, Switzerland and France where 74 members died, showing where the madness of a guru could lead. In France, the murder-suicide happened 14 months after that their gurus conditioned the members. They were given a chemical product, laid down on the ground with a plastic bag over their heads and suffocated. Why were followers willing to die? The doctrine of this sect was to die and go to paradise. The debate about what happened was extensively covered in the French media. Public opinion emerged to support more severe action against dangerous sects. The fear of cults, and the subsequent legislation designed to limit their rights began there. In 1995, the Commission of the National Assembly listed 172 groups suspected of being "harmful or dangerous cults". A climate of fear was created and was maintained by elected representatives, psychiatric circles and the media. B. What happen in Hong Kong? I will analyse the Falun Gong as an example of the situation in Hong Kong because it is well known and the one which is at the centre of the Hong Kong debate. My intention is not to limit the situation to the Falun Gong as there are other similar movements and that new ones may appear in the future. The Falun Gong is said to be a form of “qigong”, which aims to refine the body and mind through special exercises and meditation. It incorporates Buddhist and Taoist principles with exercise and cultivation of the body. The group denies being a religion and says it is "a network for transmitting information and practices, in which people may dip in on an incidental basis or more regularly." Li Hongzhi, a former Chinese government grain clerk, created Falun Gong. In July 1999, Falun Gong was officially declared illegal and outlawed in Mainland China. There are now many Falun Gong members all over the world, including in Hong Kong – China’s Special Administrative Region (HKSAR) since 1 July 1997.
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The Falun Gong is a legally registered society and its status remains legal in Hong Kong today. The number of Falun Gong members in Hong Kong is said to have dropped from around 1,000 since China cracked down o the Mainland beginning in mid-1999. Practitioners in Hong Kong showed support for those on the Mainland by public demonstrations. The Falun Gong presented the authorities in Hong Kong and Beijing with a headache because it tested the special Hong Kong-China relationship under the “one country, two systems” principle that Hong Kong supposedly enjoys civil liberties that are not available on the Mainland. Thus, as Falun Gong members began to increase their public protests, a number of controversies arose in Hong Kong about whether Beijing was interfering with Hong Kong’s day-to-day affairs and whether Hong Kong needed stronger action against “evil cults”. In January 2001, an official of the Central People’s Government official office in Hong Kong was quoted in the media as saying that it was absolutely "forbidden" for any organisation or individual to turn Hong Kong into a centre for Falun Gong activities. Also, the Hong Kong authorities refused entry to about 100 individuals of various nationalities to Hong Kong most of whom were reported to be Falun Gong members going to Hong Kong to stage protests. Some of them were detained at the airport for more than twenty hours and forcibly expelled. In addition, Falun Gong organizers have reported reluctance on the part of hotels, cultural centres, and other venues to rent space for their activities. Thus, Falun Gong members faced various harassments. To date, the Falun Gong followers were only exercising their fundamental freedoms guaranteed under the Basic Law. Other qigong groups, including Zhong Gong (banned by PRC in late 1999), Xiang Gong, and Yan Xin Qigong, are registered organizations and their members practice freely in Hong Kong. Another group allegedly an "evil cult" named by the Chinese government is the Taiwan-based Guan Yin, which is also a legal group in Hong Kong. Up until now, the HKSAR Government has failed to discover any illegal acts done by the Falun Gong.
II. Legal aspects A. France a. The previous law The legal system was insufficient in protecting vulnerable persons when they were not victim of fraud. According to French law, everybody has the right to have his own opinion, including religious beliefs, as long as they do not disturb the public order. There is also the protection of "social normality" - French law provides safeguards to individuals and families the conditions necessary for their development. In a liberal democracy, the State protects the primacy of the individual. There is also the liberty of cults to exist. For example, in France, scientology is legal. The Republic insures the pluralism of religions. Since 1998, an inter-ministerial unit was created to inform the Prime Minister about the activitie s of cults and how to deal with dangerous ones. The unit has members who are psychologists, elected representatives, as well as educational and administration representatives. The French Criminal Code prohibits fraud, infringement to the public order, infringement to life, provocation to commit suicide, as well as infringement to a person’s physical or psychological
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state. Thus, destabilising the mental state of another person is prohibited. The law protects minors as well as prohibits the practice of ille gal medicine. Other infringements have been created: for example, it is an offence to not assist a person who is ill or in danger. Thus, a guru who does nothing or aggravates the poor condition of a person may be liable. The freedom of association protected under the law enables cults to be created. However, the fight for free association has limits in the case of dangerous sectarian movements. A cult, constituted as an association, must abide by four conditions: it must have the consent of its members, members must have the capacity to understand what they are doing, it needs to have an objective cause, and the cult can only pursue legal causes. Furthermore, the law of contract can also limit sectarian illegal activities. For example, if a person was forced to join a cult, or if his consent was given by mistake, his contract of membership is annulled. b. The new law Despite many legal protections, polls showed high popular support for greater action against cults and sects. Public consciousness was boosted after the mass suicides of members of the Order of the Solar Temple. The law now provides the power to prosecute and ban a sect in cases of various infringements like undermining someone, abusing someone's trust, fraud, and illegal use of medicine or dr ugs. Suspect groups are forbidden to advertise and may not seek to enlist new members near schools, hospitals or retirement homes. The law specifies five-year jail terms and heavy fines for those who use "manipulation" to encourage conversions. Groups are banned from activities aimed at creating or exploiting psychological dependence. Also outlawed is putting heavy and repeated pressure on a person, or using techniques likely to alter his judgment so as to induce him to behave in a way prejudicial to his own interest. B. Hong Kong a. The existing law The Basic Law – Hong Kong post-1997 constitution – is the principle source of the rights and freedoms. There are also other instruments, which are expressly recognized in the constitution, such as the Bill of Rights Ordinance and the International Covenant on Civil and Political Rights. Furthermore, under the principle of “one country, two systems”, decisions outside foreign affairs and defence are for the Hong Kong authorities to decide on their own. The Basic Law guarantees the freedom of association, assembly, procession and demonstration as well as the freedom of conscience and religious belief and practice. It guarantees the freedom to preach, conduct and participate in religious activities in public. Furthermore, the government is prohibited from restricting the freedom of religious belief, interfering in the internal affairs of religious organisations or restricting religious activities “which do not contravene the laws of the region”. The Bill of Rig hts Ordinance, a piece of domestic law, reinforces these and other civil and political rights. Furthermore, the Basic Law is also explicit that the International Covenant on Civil and Political Rights (incorporated into Hong Kong law in 1991) continues to apply after 1997, which also protects the right to freedom of thought, conscience and religion. There are of course restrictions to civil liberties as well. According to the Society Ordinance (Cap. 151) 5D, the Societies Officer may, after consultation with the Secretary for Security, cancel the registration of a society or of a branch under one of the following conditions:
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(a) If he reasonably believes that the cancellation is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others; or (b) If the society or the branch is a political body that has a connection with a foreign political organisation or a political organisation of Taiwan. However the Societies Officer shall not cancel the registration or exemption from registration without first giving the society an opportunity to be heard or to make written representations. There are other laws to address various criminal activities. For example, the Offences Against the Pers on Ordinance (Cap 212) Section 19 makes it a criminal offence to maliciously wound or inflict bodily harm on a person. Additionally, Section 33B of the ordinance makes it a crime to aid, abet, counsel or procure the suicide of another. Thus, Falun Gong, as a legally registered society in Hong Kong, that has not committed any offences under Hong Kong law, should be free of harassment from the Hong Kong authorities. Its various activities, including public demonstrations (if done within the law) should continue to be permissible. Controversies were created when the official representatives of the Beijing government stationed in Hong Kong criticized in public the Falun Gong. b. What the HKSAR Government said and intends to do? Influential persons in Hong Kong have argued that the Falun Gong should not have specifically targeted the Beijing Central People’s Government in their protests. Protestors at one time gathered at the Central People’s Government’s official office in Hong Kong. However, from another point of view, articulating grievances, petitioning the authorities, criticising Beijing and the Chinese Communist Party in a peaceful manner are permissible under Hong Kong law. These types of activities are in fact protected by the constitution. Thus, political intolerance towards such peaceful exercise of civil rights is inconsistent with the Hong Kong way of life. Although the Falun Gong remains free to practice, concern about pressure from the Mainland and local authorities have caused its supporters to li mit the group's activities since October 2001 The Chief Executive of HKSAR Government had described the sect as: “no doubt an evil cult”, and government officials had said it would not let the Falun Gong: "abuse Hong Kong's freedoms and tolerance to affect public peace and order". The Secretary for Security had also labelled the group as "fanatical, superstitious, and devious". The government announced that it had increased surveillance of the group. The HKSAR Government confirmed that it was studying the possibility of an anti-cult law but stated that it had "no plans at present" to introduce such legislation. As of now, there are no signs that such a law will be proposed in the near future. Hong Kong law does not have a definition of an “evil cult”. Main land China’s definition included the use of “religion, qi gong or other titles to create a divine leader, to spread superstitious ideas, to deceive people and manipulate members and to cause harm to society”. So far, government officials in Hong Kong have not been able to explain why the Falung Gong should be labelled an “evil cult”. It can only be assumed that the Chief Executive, for example, was using the same definition as the one used in Mainland China. All that the Chief Executive was able to say in response to questions was that the Falun Gong was well-organised, had bountiful financial resources, and was a political organization.
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If these were the important criteria for an “evil cult” then the Catholic Church and other religious organizations would have to be considered “evil cults” as well. Most effective organisations will have the first two characteristics. It is also generally accepted that when necessary organisations will engage in activities of a political manner to combat against oppression or fight for its interest. In a liberal society, this is considered a totally legitimate response. It is therefore illogical how any of these characteristics, or all taken together, result in the Falun Gong being an evil cult. The statements made by Hong Kong officials were therefore unjustified. Moreover, the Falun Gong is clearly not a political organisation as defined in the Societies Ordinance (Cap 151), which defines "political bodies" as: (a) A political party or an organisation that supports to be a political party; or (b) An organisation whose principle function or main object is to promote or prepare a candidate for an election. The Hong Kong authorities reaction created widespread concern that it may indicate a trend of religious and political intolerance. For example, the Hong Kong Journalists' Association warned that a dangerous precedent would be set if the government took action against the group because it was the target of a Mainland China political campaign. The Hong Kong administration is also well aware that a ban would attract immense negative publicity abroad. In March 2002, Hong Kong authorities took their first legal action against Falun Gong followers, filing charges against 16 members for obstruction during a protest outside China 's official Liaison Office that ended in a scuffle with the police. The charges have set off a debate over whether the government is trying to silence the Falun Gong thereby eroding Hong Kong's freedoms, as members and civil rights activists fear, or whether the case was just one where the police was enforcing the law against overzealous demonstrators, as the government claimed. c. Relations between Hong Kong and China and its consequences “The factor generally perceived to distinguish Hong Kong most sharply from China was different perceptions and practices of human rights”.1 The preservation of the rights and freedoms of the residents of Hong Kong after the transfer of sovereignty therefore acquired considerable ideological and practical importance. The Sino-British Joint Declaration committed China (a country that has a very different understanding of human rights from the British) to preserving a number of rights and freedoms thereby providing a reasonable basis for the protection of rights enjoyed under the British colonial system.2 Hong Kong is to enjoy a high degree of autonomy from Beijing’s authority post-1997, including continuing to practice capitalism, maintain its English common law and judicial systems, as well as for its residents to enjoy a range of civil and political rights not available in Mainland China. As already explained in previous sections of this paper, the Basic Law, the Hong Kong post-1997 constitution, protects these rights. The Basic Law , however, was never designed to allow the HKSAR to challenge the Mainland system. Thus, the Hong Kong Chief Executive and the governing apparatus are subordinate to the 1
GHAI, Yash: Hong Kong’s new constitutional order, 1999, p 401 The Sino-British Joint Declaration (1984) was a treaty between Britain and China dealing with the transfer of sovereignty from British to Chinese rule. 2
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Central Authorities. For example, Article 23 of the Basic Law requires the HKSAR to pass laws to prohibit acts of treason, sedition and subversion. Although Hong Kong has yet to pass such laws, it remains a requirement under its constitution. The Falun Gong and its activities in Hong Kong provide an interesting challenge to both Beijing and Hong Kong. Whilst it has been outla wed in China, it remains legal and active in the HKSAR. Beijing is obviously concerned about it having a base within its territory to denounce Chinese government action. Beijing’s tolerance to date may be because of its larger agenda to reunify with Taiwan and also to demonstrate itself as a world power. However, the risk remains that Beijing could undermine the Basic Law. Mainland forces have put public pressure on the Falun Gong in Hong Kong thereby creating a negative impression of the group. For example, a Hong Kong member of the Standing Committee of China’s National People ’s Congress accused the Hong Kong Falun Gong group of increased ‘ferocity’ in directly attacking the Central Government. It is not surprising that Hong Kong officials are under pressure to curb the activities of the group. The danger of these statements from Hong Kong officials and influential members of the Chinese political apparatus is that they are effectively calling for the importation of the Mainland system into Hong Kong, whether they are conscious of doing it or not. Hong Kong officials, including the Chief Executive, must remember that they have a duty to protect the Hong Kong “two systems”. The challenge is of course how to do that when the sovereign power perceives something to be a threat against its authority – such as by the Falun Gong. “Patriotism for the motherland must not be confused with the preservation of the CCP’s hold in power”.3
III. Is there a need for anti-cult legislation? A. Positive and negative aspects of the French law a. Positive aspects This paper has already described the preoccupation of French legislators about the dangers of cults and their belief that individuals and families need to be better protected from cults. Supporters of the law argue that there has been no negative effects and that the freedom of conscience, belief and religion continues to be alive and well in France. A positive aspect of the new law is that a sect can be prosecuted as an organization rather than for its members to be prosecuted. The new legislation provides a new mechanism to fight sects that promotes beliefs that involve suicide thereby helping to protect the weak members of society. The new law also gives French magistrates more power to punish those who infringe on other people’s liberties. It allows people who have suffered at the hands of cults to bring legal action. The law was designed to target those cults that prey on the weakness of others. France is a pioneer in trying to deal more effectively with cults.
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Asian Human Rights Commission.
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b. Negative aspects Civil rights advocates are condemning the new French law as a threat to free expression. The law gives the terms “cult” and “sect” negative connotations. The French government passed the law because it felt insecure for losing control under difficult circumstances. Furthermore, insufficient attention was paid to prevention. Instead, emphasis was put on control. Critics argue that France only has conditional freedom. International reception of the new French law has by and large been negative. Protecting people from a threat to their own safety or well-being is an admirable goal but public safety must be weighed against the freedoms, which those laws take away from the very same populace they are trying to protect. The right to be lieve what you wish to and practice those beliefs are bedrock ideals of democracy. In its attempt to keep some harmful individuals from hurting themselves or others, the French Government had proclaimed that the State is better able to judge the worth of belief systems than the individual. In such a scenario, both Church and State stand to lose a great deal. The exploitation of fragility is reprehensible but it is extremely difficult to prove that it was not a person’s own choice. Would it be possible for an adult to choose to join a religious order and for the parents of that person who do not approve of his choice to use the new law by accusing the religious order of manipulation? The new law gives superiority to politics over religion, as it is now possible for a religious organization to commit a criminal act. The term “cult” is ambiguous at best. The French law makes "mental coercion" a crime but the definition is vague and can be used to describe everything from marketing techniques to catechism classes. The law is thus open to broad interpretation and potential abuse. As there is no tight definition, it means that an unpopular group could be designated as being sect-like. Despite having such a law, it remains doubtful whether it will be sufficient to prevent those truly dangerous groups from committing murders or promote mass suicide among its members. B. Discussion on the implementation or not of such a law in Hong Kong in light of the French experience The new French law is not the best answer to the tragedies that happened. Religious freedom in France now means freedom from religious that public officials do not like, not freedom of religion, for all French citizens. It is not progress but regression. Those who support this law needs to understand that if a minority religious group can be attacked in this manner, no religious group is safe. The fundamental right to freedom of conscience, belief and religion cannot be distinguished: either all groups are protected or all are vulnerable. In Hong Kong, there is no reason to outlaw the Falun Gong. The Falun Gong is an illusory threat. Legislation aimed at curtailing Falun Gong's activities would have a grave impact not only on the constitutional freedoms of thought, conscience, belief and religion in Hong Kong but also on the freedoms of expression, assembly and association. Hong Kong enjoys a great deal of autonomy and freedoms under the “one country, two systems” principle. There is insufficient danger to compromise these freedoms. The French example should not be used as a reason to justify the situation in Hong Kong. A repressive law could never replace the necessary work of education to protect people, especially youths. It should be remembered that in France, the law was passed under highly emotional circumstances connected to the Order of the Solar Temple. However, there are sects
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that are pacifists and do not promote beliefs that hurt their members or other people. If governments were allowed to suppress or modify personal thoughts and beliefs, an individual would lose that which makes him human. In any event, “… at this stage it is premature to speculate whether legislation is necessary” in Hong Kong. 4 Personal safety of individuals and the public order and morals of the community are not under threat by any "cults" in Hong Kong. The existing law is already capable of dealing with potential problems. There is no public call in Hong Kong for such a law to be passed to ensure more effective control of groups. Existing law can deal with dangerous activities. The government can just be more vigilant in detecting potentially dangerous activities in advance rather than pass draconian legislation. My view is that there is no need for an anti-cult law in Hong Kong. However, if the HKSAR Government wants to pass such a law, it should consider the negative effects illustrated by the French experience. It should give a more precise definitions of "sects” and “evil cult" to prevent abuse. Moreover, it should consider the fact that Hong Kong people are not demanding such a law whereas in France, the people were supportive. The government should continue to operate on the principle of minimal intrusion into the private realm. The HKSAR Government can consider an alternative path based on two themes - improving the public’s knowledge about sects and the adhering to the rule of law. Thus, despite the government’s sentiments towards the Falun Gong, it should: •
Re-affirm its commitment to the freedoms of association, assembly, procession and demonstration as well as freedoms of conscience and to religious belief and practice.
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Practice and promote religious and political tolerance.
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Promote the rule of the law rather than adopted a piece of draconian special legislation.
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Create an independent commission to observe the evolution of "sectarian movements" without political considerations.
CONCLUSION For the Falun Gong to survive so visibly in Hong Kong is an encouraging sign that in spite of numerous difficulties, the HKSAR still preserves a good measure of autonomy guaranteed to it. However, there have also been signs of interference from Mainland officials in the affairs of Hong Kong, which could potentially threaten autonomy.
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Hong Kong Bar Association 26 May 2001.
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REFERENCES Books GEST, GUYARD, “Les sectes en France”, Rapport de l’Assemblee Nationale, 2001 GHAI, Yash, “Hong Kong’s new constitutional order, the resumption of Chinese sovereignty and the Basic Law”, 1999 The International Religious Freedom Report for 2001 Rapport de la Mission Interministerielle de Lutte contre les Sectes, 2001 Six-Monthly reports on the Implementation of the Joint Declaration on Hong Kong, United Kingdom Government.
Newspapers Agence France Press: “Violations des libertes religieuses: le France au 6eme rang, la France en tete”, 28 juin 2001 Agence France Press: “La repression du Falun Gong retarde les progres sur les droits de l’homme”, November 9, 2001 L’express: “Une arme contre les sects” , February 21, 2002 by Koch L’express: “questions pour 5 massacres”, May 4, 2001 by Koch Foreign Correspondents’ Club Hong Kong, “Donald Tsang Q and A” and “Falun Gong”, September 2001 Le Monde diplomatique, “De la manipulation mentale a le sects globale”, August 2001 People’s Daily: “Tung brands Falun Gong an Evil Cult”, January 28, 2001 by Joseph Li South China Morning Post, “ Tung pledges to monitor sect”, February 9, 2001 by Angela Li Washington Post: “China’s French Connection”, July 10, 2001 by Joseph A.Bosco Web Sites www.ahrchk.net (Asian Human Rights Commission) www.cnn.com www.ethique-liberte.org www.guardian.co.uk www.hkhrc.org.hk (Hong Kong Human Rights Commission) www.hkhrm.org.hk (Hong Kong Human Rights Monitor) www.hkimail.hk www.info.gov.hk www.justice.gov.hk www.martinlee.org.hk (Chairman of the Democratic Party in Hong Kong) www.unadfi.org
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