|While freedom of speech is a vital
right for society...its scope and protection
is still evolving at the international
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
"…(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 –
- for respect of the rights or reputations of
- for the protection of national
security or of public order (order public), or of
public health or morals."
The Basic Law applies the ICCPR to HKSAR and requires
implementation of its provisions through domestic laws of
the Region. Relevant parts of Article 39 of the Basic Law
provide in terms as follows:
" The provisions of the [ICCPR]… shall
remain in force and shall be implemented through the laws
of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong
residents shall not be restricted unless as prescribed by
law. Such restrictions shall not contravene the provisions
of the preceding paragraph of this Article."
In the domestic laws of the HKSAR, the right has been
included in the Hong Kong Bill of Rights as Article 16
thereof, which is a verbatim replica of Article 19 ICCPR.
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
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
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
(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.
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
Thank you and may I wish you a Merry Christmas and
The above does not necessarily represent the
views of the Foundation.