Preserving Free Speech in Hong Kong

Mr Alan Leong, S.C., Vice Chairman of the Hong Kong Bar Association, was the Foundation’s guest speaker on 18 December 2000. This is a summary of his remarks.

Winston Churchill once said, "The most difficult things for a man to do are to climb a wall leaning towards you, to kiss a girl leaning away from you, and to make an after-dinner speech."

I suppose to speak at a luncheon is even more difficult because you always have a more sober audience after lunch than after dinner.

Introduction
Free speech is a complex right and freedom. While it is a vital right for a society and one to be treasured and sustained, its scope and protection is still evolving at the international level. In the next half-hour, I shall explore a few facets of the right to free speech and hope to provoke your further thinking on the topic. These are:

1. Constitutional guarantees for the right to free speech.
0. Why is free speech justified?
1. What can we do to help to preserve free speech in HKSAR?
2. Is the right absolute? When are restrictions permitted?

Constitutional guarantees
On 10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights – the first international articulation of the rights and freedoms of all members of the human family. Article 19 of the Universal Declaration of Human Rights provides in terms as follows:

"Everyone has the right to freedom of expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information through any media and regardless of frontiers."

While freedom of speech is a vital right for society...its scope and protection is still evolving at the international level.

Article 19 of the Universal Declaration of Human Rights has since been translated into Article 19 in the International Covenant on Civil and Political Rights (ICCPR) the relevant parts of which provide in terms as follows:

"…(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary –

1. for respect of the rights or reputations of others; or
2. for the protection of national security or of public order (order public), or of public health or morals."

Besides the application to HKSAR of the ICCPR and its implementation by domestic laws, the right to freedom of expression is further and separately guaranteed by Article 27 of the Basic Law, the relevant parts of which provide in terms as follows:

"Hong Kong residents shall have freedom of speech, of the press and of publication…"

It is therefore beyond doubt that Hong Kong residents enjoy freedom of expression as a fundamental human right guaranteed unequivocally by our constitution and our laws.

Why is free speech justified?
As expressed by the European Commission on Human Rights in Handyside v UK, Report of the Commission, 30 September 1975, Series B, para. 146-147,

"freedom of expression is based on the need of a democratic society to promote the individual self-fulfilment of its members, the attainment of truth, participation in decision making and the striking of a balance between stability and change. The aim is to have a pluralistic, open and tolerant society."

Free speech underlies all rights, economic and social as well as civil and political. Free speech enables testing of new ideas and is central to economic development and advancement. It underpins the right to participate in public life; it implies the right to be heard by those in authority.

Free speech is the precondition for, and the sign of, a free society. It is now a principle of customary international law that the legitimacy of all civil authority derives from a democratic base as expressed in the will of the people. A society subjected to censorship will gradually lose an inquiring, intelligent, skeptical disposition that you may prefer to call "common sense". Attempts to stifle debate invariably result in stifling progress. Limits on free speech not only cannot avoid anarchy and chaos but usually bring those about.

The importance of freedom of the press for the maintenance of a democratic order has been emphatically recognized. The European Court of Human Rights noted in Lingens v Austria (1986) 8 EHRR 103 at para. 42:

"[Freedom of the press]…affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention."

What can we do to help to preserve free speech in HKSAR?
In a civil society as sophisticated and developed as Hong Kong, violations of human rights will not be manifested in the form of cruelty or inhuman treatment of individual but always as conflicts between the rights of some against the wishes of other members of society. The right to free speech is no exception. Talking about preserving free speech in Hong Kong, I think we should always start with ourselves. Freedom of speech means tolerating speech we do not like and speech with which we do not agree. That requires our constantly reminding ourselves about the need to overcome prejudices that we may have. The spirit is well encapsulated in the saying: "I may not agree with one word you say, but I shall defend to death your right to say it."

Is the right absolute? When are restrictions permitted?
Freedom of speech is not an absolute right. The ICCPR provides under Article 19 that when it is necessary for respecting the rights or reputations of others or for the protection of national security or of public order, or of public health or morals, the exercise of such a right can be restricted as provided by law.

In a civil society as sophisticated and developed as Hong Kong, violations of human rights will not be manifested in the form of cruelty or inhuman treatment of individual but always as conflicts between the rights of some against the wishes of other members of society.

The keys to interpreting Article 19 of ICCPR or Article 16 of the Hong Kong Bill of Rights lie in its reference to any restriction on the right needing to be "necessary" and "as provided by law". In this regard, I shall make observations as follows:

(1) The freedom is the rule while its limitations or restrictions the exception; the onus is on the authority restricting a right to justify such restriction. The European Court of Human Rights made this important point by noting that, in considering a government claim justifying a limitation:

"The Court is not faced with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted."

It is never a simple balancing exercise. The European Court of Human Rights has indicated that "necessary" means "a pressing social need" and is a more stringent test than "reasonable" or "desirable". It is implicit in this standard the notion that the restriction, even if justified to achieve one of the stated purposes, must be framed so as not to limit the right protected more than is necessary. The restriction must be proportionate and closely tailored to the aim sought tto be achieved.

(2) As for legality, the Article requires any restriction to be "provided by law". The European Court of Human Rights provided a most comprehensive definition of this requirement in The Sunday Times Case (1979) 2 EHRR 245 at para. 49:

"First, the law must be adequately accessible; the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail."

(3) The principle of legitimacy requires any restrictions on the right must pursue a legitimate end in that it is justifiable on one of the grounds permitted under Article 19. The law imposing the restriction cannot be too general because the more general the law imposing the restriction is, the more difficult it is monitor whether it pursues a legitimate end.

(4) The requirement of Article 19 is that any restriction must be shown to be "necessary" for the legitimate aim pursued. This means that it must satisfy the principle of proportionality. If a less restrictive measure limiting the exercise of the right would achieve the legitimate end it must be chosen.

Conclusion
No right makes the contrast between the "two systems" enshrined in the Basic Law more starkly than that of freedom of the individual to hold opinions without interference. It is a right that all Hong Kong residents should guard jealously and strenuously defend.

I am honoured to be given this opportunity to address you at this luncheon and hope that I have not given you indigestion.

Thank you and may I wish you a Merry Christmas and Happy 2001.

The above does not necessarily represent the views of the Foundation.