ARTICLE 19 and The Hong Kong Journalists Association
According to the Chinese constitution, the exercise by citizens of their rights and freedoms is subject to the overriding duty that this "must not infringe upon the interests of the state, of society or the collective". Under the Basic Law, as will be seen, rights such as freedom of speech are also subject to an overriding "obligation to abide by the laws in force", among which will be those provided for in Article 23 on "subversion against the People's Government". Read with Article 158, which allows China final interpretation of the Basic Law, this has created a mechanism by which Beijing can suppress freedom of expression.
Article 27 itself, furthermore, cannot be considered to be a progressive expression of the several rights - freedom of speech, of association, of assembly, and of the right to form trade unions - it lumps together and purports to safeguard. In the context of modern human rights law, it is generally accepted that while these are closely associated rights, they each nevertheless require a separate legal expression, since each have unique characteristics which deserve definition. The international standard with regard to freedom of expression is Article 19 of the International Covenant on Civil and Political Rights (ICCPR). This sets out freedom of expression in positive terms, carefully laying down its various component parts which, inter alia, include the right to seek, receive and impart information of all kinds. Under Article 27's limited formulation, however, it is certainly arguable that freedom of expression may be limited to the act of expression itself: there are no explicit guarantees of the freedom to seek or receive information, rights which are considered axiomatic to the exercise of freedom of expression as a whole.
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2.4 THE BASIC LAW AND THE INTERNATIONAL COVENANT AFTER 1997
In addition to Article 27, which must be seen as China's intended provision on the right to freedom of expression, there is also one further provision for the protection of freedom of expression in the Basic Law - Article 19 of the ICCPR. This is incorporated under Article 39 of the Basic Law which stipulates that the ICCPR as applied to Hong Kong "shall remain in force" after 1997, a provision which was negotiated as part of the 1984 Joint Declaration.
The existence of two separate and differing formulations of the right to freedom of expression raises several questions, not least of which asks whether they are mutually supportive, or whether they are in some way incompatible or irreconcilable. Which, for example, would take precedence if there was a need, during the course of legal proceedings, to establish the scope and definition of freedom of expression?
It is not too difficult to imagine a case in which a journalist is facing prosecution for the "theft of state secrets", an act for which Article 23 of the Basic Law requires there to be legislation after 1997 (in China, the vague charges of leaking or stealing state secrets have been used as grounds to prosecute those seen as political dissenters, journalists especially). Such a case might hinge on whether the journalist has a right not only to publish information but to seek and receive it as well; in other words whether freedom of expression is limited to the act of expression itself, as it may be under Article 27 of the Basic Law, or whether it
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