‘One country, two systems’ demands that Hong Kong discuss the independence question

The freedom of speech, one of the most important rights protected by law in Hong Kong, has been much used, abused, maligned and misunderstood during the ongoing debate over the placing of pro-independence banners and posters at universities. What began as a provocative statement of opinion by a small number of students at the start of the new academic year has led to confrontation, personal abuse and calls for the prosecution of those who advocate independence. Battle lines have been drawn. There is a need for tolerance, understanding and respect on all sides.

Freedom of expression, perhaps more than any other human right, demonstrates the difference ­between Hong Kong and mainland China under the “one country, two systems” arrangement. Residents of this city are free to express opinions in a way not permitted on the mainland. In Hong Kong, you can criticise the central government, take part in protests and attend the annual vigil to mark the anniversary of the Tiananmen crackdown.

Thousands join June 4 vigil in Hong Kong in 2017

The right, however, is much broader than that. The free flow of information and ideas has played a key part in driving Hong Kong’s ­development as a vibrant, diverse, cosmopolitan city and international financial centre.

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As the European Court of ­Human Rights put it, in a famous case in the 1970s: “Freedom of ­expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.”

Hong Kong’s de facto constitution, the Basic Law, protects the freedom of speech, both directly and through its incorporation of the International Covenant on Civil and Political Rights.

Chief Executive Carrie Lam Cheng Yuet-ngor, in her condemnation of students posting pro-independence banners, said: “This is not a question of freedom of speech. It is a question of whether we are respecting ‘one country, two ­systems’ and a constitutional question of whether we care if Hong Kong can continue to have our rights and freedoms protected under ‘one country, two systems’.”

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But the reason why human rights are given legal protection is to try to ensure that they are not unduly restricted in the name of national interests.

Freedom of expression is ­de­fined in very broad terms in the International Covenant on Civil and Poli­tical Rights. It covers “information and ideas of all kinds”. This, undoubtedly, includes calls for an independent Hong Kong. The question of free speech cannot be cast aside.

Critics of the students’ actions point out that the freedom of expression is not an absolute right. The rights treaty says the exercise of the right carries with it “special duties and responsibilities” and may be subject to restrictions.

We have many laws which ­restrict free speech, including those on defamation, obscenity, and desecration of the national flag. But any restrictions must comply with strict rules enforced by the courts. Limits on free expression have to be set out in precise laws. They are necessary in ­order to achieve a specific public ­interest aim, such as the protection of national security. Crucially, any curbs must go no further than necessary to achieve that aim.

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It is very likely that the city’s broad, outdated, colonial-era sedition laws would fail to meet those requirements. This may explain why the government has not sought to use them to prosecute independence advocates. Such a step may well result in the courts striking out the relevant provisions of the Crimes Ordinance, finding them to be inconsistent with the Basic Law’s protection of free speech.

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During the debate about proposed new national security laws, in 2002, government officials described the sedition laws as being too broad and in need of reform. They made it clear there was no intention to criminalise peaceful advocacy, even if the views concerned related to constitutional change.

It has also been said that the university banners and posters breach the Basic Law, of which the first ­article states that Hong Kong is an inalienable part of China. Article 23 also requires the city to pass new laws against splitting Hong Kong from China, but it has not done so.

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There is a big difference between merely expressing the opinion that Hong Kong should be independent, and taking steps to bring that about by force. Peaceful advocacy of independence breaches the spirit, but not the letter, of the Basic Law.

Discussing possible changes to the Basic Law, even on such sensitive issues, surely falls within the boundaries of free speech.

Indeed, there is every reason why independence should be discussed. If arguments for and against such a move are advanced, it will quickly become clear that this is not feasible for Hong Kong, or in the city’s interests. Attempts to suppress all talk of independence will turn it into a convenient rallying cry for anyone wishing to oppose the central government.

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Sadly, there have been abuses of free speech. The cruel references to the recent suicide of an education official’s son are repugnant and lack basic human decency.

Similarly, the extraordinary call by pro-establishment lawmaker and former Law Society president, Junius Ho Kwan-yiu, for independence activists to be “mercilessly killed” is irresponsible and offensive. There have also been confrontations between people attempting to remove posters and students ­trying to keep them in place.

It is regrettable that public ­debates in Hong Kong so quickly descend into name-calling and threats. There is a need for more ­dialogue and rational discussion. But the answer is not to use the law to curb our freedom of speech.

We have already seen ­pro-democracy lawmakers who failed to properly take their oaths disqualified by the courts. Student leaders have been jailed for unlawful protests and a new law banning disrespect of the national anthem is on the way. It feels as if the space for free expression is shrinking. This core value has helped shape Hong Kong’s identity. It makes the city a special part of China. It must be ­respected and protected.

Cliff Buddle is the Post’s editor of special projects