Urgent Business: Hong Kong, Freedom of Expression and 1997
3.2.2 Reservations
The Bill of Rights, by expressly incorporating the ICCPR as applied to Hong Kong into domestic law, continues to include the reservations made by Britain when the Covenant was extended to the territory in 1976. The most important, and one which has fundamental implications for freedom of expression and other human rights, is the reservation under Section 13 preventing Article 21 of the Bill, which guarantees democratic participation in public life, from being used to require the setting up of a directly elected legislature. The reservation thereby "converges" with the limited suffrage and development of democracy offered in the Basic Law."
Freedom of expression and democracy have a symbiotic relationship. Democracy and pluralism are necessary conditions for freedom of expression, and vice versa. Without democracy, freedom of expression, if it exists, is effectively little more than a grace granted at the discretion of an autocratic power, much as it has been in colonial Hong Kong.
3.2.3 Entrenchment and supremacy
Technically, the Bill of Rights itself has not been entrenched in the present constitution, the Letters Patent. Instead, to some criticism, the government chose what it saw to be the politically less sensitive path of amending the Letters Patent to include the ICCPR as applied to Hong Kong, which the Bill of Rights incorporates into law. By taking this route, the government sought to make the Ordinance more acceptable to China by ensuring that the colonial constitution was kept in line with Article 39 of the Basic Law. In doing so, the authorities were satisfied they had provided the basis for constitutional and legal continuity for the Bill of Rights.
Although by the inclusion of the ICCPR in the Letters Patent, the Bill of Rights seems effectively entrenched during the remaining years of British rule, the Ordinance's survivability or effectiveness after 1997 is in some doubt. Beijing has repeatedly threatened to repeal the Bill, claiming it to be inconsistent with the Basic Law.24 China's hostility to the Ordinance stems from the suspicion that it will somehow undermine the SAR constitution, which
23
See Chapter 2, Section 2.9.
24
Article 160 of the Basic Law permits the Standing Committee of the National People's Congress to repeal any law it finds to be "in contravention" of the SAR constitution. Interestingly, in a paper submitted to a conference on the Bill of Rights in June 1991, Professor of Comparative Constitutional Law at Beijing University, Gong Xiangrui, challenged the official Chinese line by declaring there were no inconsistencies in the broad declarations of substantive rights between the Bill of Rights and the Basic Law: both were reconcilable under the "one country, two systems" formula. Professor Gong withdrew from the conference without giving reasons, though his paper was read as submitted.
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