‘One country, two systems’ demands that Hong Kong discuss the independence question
Cliff Buddle says the freedom of expression, even if abused, is a defining feature of the Hong Kong SAR that must be protected. Attempts to suppress all talk of independence would risk provoking rallying cries
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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.”
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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.
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It is very likely that the city’s broad, outdated, colonial-era sedition laws would fail to meet those requirements.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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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.
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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.
Cliff Buddle is the Post’s editor of special projects