Law & Crime Opinion Politics & Protest

Freedom of speech is not absolute, but there are clear boundaries to the permitted exceptions

I fear I will vomit if I have to read one more newspaper column claiming that someone of whom the writer disapproves is mistaken in the belief that freedom of speech is an absolute right. Nobody believes that freedom of speech is an absolute right.

As an American judge once said, you are not free to shout “Fire” in a crowded theatre. There must be some restrictions. This means that in any particular case you have to consider the circumstances and the reasons advanced for curtailing freedom, in the light of the permitted exceptions.

free speech censorship july 1 protest

Photo: Tom Grundy/HKFP.

This is of course more trouble than simply dubbing anyone defending freedom of speech a deluded ignoramus who thinks the right to freedom of expression is absolute. But it should be a prerequisite for anyone who wishes his views to be taken seriously.

Freedom of expression is enshrined in the PRC constitution, an inspiring work of fiction.

It is also enshrined in the Basic Law, which says at Article 27 that “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

This is promising, but so sweeping as to be unhelpful. Freedom of expression is not an absolute human right like the right not to be tortured or enslaved. To answer the question what restrictions are acceptable we must look elsewhere.

Help will be found in Article 39, which states that “The provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong 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.”

basic law constitution handover

Photo: GovHK.

This gives us to two tests to be applied: is a restriction prescribed by law, and does it meet the requirements of the International Covenant, which by a convenient coincidence is incorporated in the Laws of Hong Kong as the Bill of Rights Ordinance.

Article 16 is the one which concerns “freedom of opinion and expression”. As well-drafted constitutions do it sets out the right and then goes into the permitted exceptions to it.

So:

(1) Everyone shall have the right to hold opinions without interference, and
(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.

The third item states that there may be “certain restrictions” and lays out their limits. They must be “provided by law” again, and “necessary” for one of four purposes: respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.

These exceptions are generally assumed to justify the law of libel (reputation) contempt of court (public order) obscenity (morals), and so on. Public order is interpreted in the French way (which is why the French translation is inserted) and so includes rather more than the absence of violence in the street.

freedom protest rally benny tai free speech

Photo: HKFP.

We are now in a position to consider properly whether any particular restriction on freedom of expression is justified. Let us take the advocacy of independence. Is a ban on this “provided by law”? Not at all. Even the famous “sedition” section of the Crimes Ordinance preserves the right to:

“(b) point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(c) to persuade Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established; or

(d) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Hong Kong.”

Clearly attempts to use the Societies Ordinance, or the ownership of Victoria Park, or such influence as the government can exert on a private club which is its tenant, to prevent the expression of views which are not prohibited by law is a violation of the freedom offered by the Basic Law and the Bill of Rights Ordinance. Andy Chan is not breaking the law. The government is.

Note that the permitted exceptions are subject to the condition that they are specified by law. A speech which is not prohibited by law does not become unlawful just because in some people’s view – or indeed in everyone’s view – it might harm a personal reputation, national security, public order or whatever. The “provided by law” comes first and if it is not satisfied then the exception is not allowed.

Of course it is nonsense to suggest, in any case, that China’s national security can be endangered by anything said in Hong Kong. The real objection to independence advocacy is that it was specifically forbidden by President Xi, whose speeches, inconveniently, do not have the force of law in our system.

China’s habit, alas, is simply to change the language if it suggests an inconvenient obstacle to the Party’s progress.

independence free speech rally benny tai

Photo: HKFP.

There was a good example of this last week in a charming story about trout. There is a shortage of salmon in China, I suppose for simple geographical reasons. Some restaurants had taken to serving rainbow trout, which apparently when skinned and cooked looks pretty salmon-like. However the rainbow trout is a fresh-water fish, and as the water in China’s rivers tends to be anything but fresh some diners were not pleased.

The government’s solution to this problem was to reclassify the rainbow trout, which is now officially a salmon.

The problem with this sort of thought control is that it doesn’t work so well in places where people can make their own minds up. Mr Chan is not really expecting Hong Kong to become independent, and the reporter who castigated him for not having a plan for this process was a simpleton.

What the Hong Kong National Party does is to demonstrate in a very practical way the true nature of Hong Kong’s situation. We are not an autonomous region, we do not have the rights and freedoms we are supposed to have, and our distinctive culture and language are under attack.

Insisting that this isn’t so is not working too well in Hong Kong. Of course, it works even less well overseas. It is an entertaining paradox, if viewed from a safe distance, that China wants the world to pretend that Taiwan is not a separate country, which it manifestly is, but also wishes it to pretend that Hong Kong is a separate country, which it clearly is not.

I don’t know what the conditions are for WTO membership but how much longer will we be able to justify our separate Olympic team?

Freedom of speech is not absolute, but there are clear boundaries to the permitted exceptions