ARTICLE 19 and The Hong Kong Journalists Association
however, were cited by the Legal Department as being possibly inconsistent with the right to freedom of expression.
The administration's retreat from a thorough-going review may partly be understood as a reluctance on the part of the authorities to lose their very considerable statutory powers. It also seems clear that, in the British pursuit of a "smooth transition", the review suffered as a result of the administration's reluctance to further antagonize China on this issue; the Chinese authorities are known to want to retain the strong executive powers laid down in colonial legislation, as they believed they would on the signing of the Joint Declaration in 1984.
For freedom of expression, the consequence of this abandoned review has been that, with the exception of minor reforms and the recent replacement of the 1911 Official Secrets Act with the 1989 version, there have not yet been any significant amendments to laws identified as potentially incompatible with Article 16 of the Bill of Rights. Given the legal and financial difficulties in challenging such legislation under the Bill of Rights, particularly if the government does not invoke its statutory powers to curb freedom of expression (which historically it has proved cautious in doing), there would be every reason to believe that many of these laws would be likely to remain unchallenged in the courts before 1997, and thereby carry over into the SAR intact.
Since the arrival of Governor Patten, there is now some degree of hope, albeit cautious, that legislation may be brought more into line with the Bill of Rights. At a meeting with the HKJA in August 1992, Mr Patten rolled back the government's claim of February 1992 that a further review of laws was unnecessary by agreeing that the Executive Council would review laws in light of concerns about freedom of expression. The Government Secretariat is presently coordinating this review, in consultation with the HKJA. The union has submitted a list of ordinances which it believes may contain provisions which are inconsistent with, or threatening to, the right to freedom of expression and of the press.
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This welcome development is partially reinforced by the Governor's appointment to the Executive Council of two lawyers known to be sympathetic to civil rights, Dennis Chang, QC, and Andrew Li, QC. They seem to be a minority opinion, however. Indeed, this review, which is still at an early stage in the administration, must be treated with considerable caution. It cannot be assumed that any significant changes to legislation will result. At a time of diplomatic crisis with China, the pressure on the government to conform to its previous status quo regarding human rights is especially acute. Moreover, time is running out. If the Executive Council approves in principle a review of legislation concerning freedom of expression, it may nevertheless take years before the government puts forward amending legislation to the Legislative Council. It is certainly plausible that the process of drafting amendments may be used as a delaying factor for legal reforms, as has been done in the past.
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See Chapter 4.
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