ARTICLE 19 and The Hong Kong Journalists Association
must be shown to be "necessary" for the legitimate aim pursued. If a less restrictive measure would achieve the legitimate end it must be chosen."15
The scope of permissible restrictions in the Hong Kong context is, without authoritative local case law, unclear. As yet there have been no challenges under Article 16, and it remains unknown how influential international human rights law, to which local judges may refer for guidance, is likely to be in freedom of expression cases.
With regard to the protection of the rights and reputation of others, in paragraph 3(a), it is clear that restrictions would be justified, and provided for in the law, on grounds of privacy and libel. The protection of national security under paragraph 3(b), however, is altogether more problematic. Indeed, the concept of national security is especially tendentious in the context of the post-1997 "one country, two systems" formula: if China is to be the nation, might conflicts arise over whose security needs justify protection?16 This ambiguity is compounded by the fact that, during the drafting of the Bill of Rights, a deliberate choice was made to use "national security" in preference to the wording "security of Hong Kong" suggested by various groups who recognized the potential danger of following the ICCPR text exactly. The choice was deliberate because in other respects the wording of the ICCPR was adapted to suit the local situation, for example in the use of "permanent resident" instead of "citizen".
By staying with "national security", the administration undoubtedly was concerned to ensure that the Ordinance converged with the Basic Law, and was palatable to Beijing. The government recently admitted to the ad hoc group studying the Societies (Amendment) Bill that the term "national security" does indeed refer to the sovereign power, and not in any limited sense to Hong Kong. Thus freedom of expression may apparently be restricted for the protection of the security of the People's Republic even if the security of the SAR does not warrant such legislation.
This in turn raises the important question of whether the Basic Law might permit further restrictions than those that exist at present, or otherwise be used to justify a harsher interpretation of restrictions: Article 23 which requires the prohibition of subversion, among other things, is one possible source of such further restrictions. Might the national security restrictions be justifiably invoked if, as Article 23 permits, it is deemed necessary to restrict publications or communications of "foreign political bodies or organizations" - say the overseas dissident group, The Federation for a Democratic China from entering Hong Kong?17
15 Kevin Boyle, supra note 1, at 21.
16
Yash Ghai, supra note 1, at 391.
17
In a similar vein, what might future courts make, for example, of an alleged libel of China's leaders? Such a possibility was raised in July 1991 when He Xin, a mainland academic and prominent conservative, threatened the Hong Kong media by suggesting that those who had "defamed" Chinese leaders during and after the Beijing massacre
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