Rule on flat sales does not flout free speech

PUBLISHED : Monday, 28 May, 2012, 12:00am
UPDATED : Monday, 28 May, 2012, 12:00am


Leading constitutional lawyers from Britain and Hong Kong have recently been consulted by the Real Estate Developers Association. Based on those consultations, the association has argued that parts of the proposed law to regulate the sale of new homes in Hong Kong, currently before the Legislative Council, may not comply with the Basic Law and human rights protections here.

This raises the question: is the 'right to advertise commercially' a form of speech of equal or similar importance to speech arguing a political point of view?

In the US, the Supreme Court has, over recent decades, formed the view that these two forms of speech are fundamentally similar - and both enjoy constitutional protection. The European Court of Human Rights has been more wary.

The approach in Australia is quite different. Unlike the US, Canada and Hong Kong, Australia has no constitutional bill of rights. Despite this, the High Court of Australia has found that the country's constitution contains an implicit protection of political expression. In subsequent cases, the High Court has drawn a clear line between protected political expression and other forms of expression, such as commercial advertising, which are not constitutionally protected.

In 2008, in Hong Kong, the Court of Appeal ruled that, under the Basic Law, the severe curbs imposed by the Medical Council on doctors promoting their business were excessive. This case is special, however, as it dealt with a very highly regulated profession. Moreover, the case was decided by the Court of Appeal - not by our highest court, the Court of Final Appeal.

The superior courts in the US and in Canada have succumbed to the misguided imperative that, not only can free expression in politics and commerce be largely equated, but unless you protect the latter, the former will be placed in danger. The experience in Australia shows this is not true.

When Hong Kong's top court does address the issue of calibrating what sort of speech deserves the enhanced protection of the Basic Law, the comparative case law shows it is possible to draw a clear distinction between political free expression and commercial speech.

This is the best way to guard against our valued Basic Law rights being put to work in socially damaging ways for the benefit of commercial interests. Moreover, it is right to do so, based on positive constitutional principles that underscore good governance.

Besides, even if the Court of Final Appeal adopts this approach, corporations relying on commercial advertising will still enjoy the protections of the rule of law regime that applies to all here.

Richard Cullen is a visiting professor at the Faculty of Law at the University of Hong Kong