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ARTICLE 19 and The Hong Kong Journalists Association
HOSTAGES TO FORTUNE: THE ARMOURY OF COLONIAL LEGISLATION
The Hong Kong administration's claim to have undertaken a thorough review of existing laws to assess their consistency with the Hong Kong Bill of Rights falls far short of its legal and moral obligation to act in the spirit of promoting the basic rights set out in the Bill. On the question of freedom of expression, the Chief Secretary Sir David Ford took the view during a Legislative Council debate on press freedom in February 1992 that the laws brought before the Council as being inconsistent with Article 16 of the Bill of Rights and threatening to freedom of the press were, as far as could be ascertained, broadly compatible with the Bill. Any possible inconsistencies were ultimately a matter for the courts to decide.
As seen in the previous chapter, this irresponsible approach to freedom of expression issues has more recently been superseded by Governor Patten's August 1992 pledge of a further review in the Executive Council of laws concerning this basic right. At present, though, it is too early to tell whether this further review will result in any significant changes to those laws.
Colonialism and freedom of expression have never been comfortable partners. As an activity perceived to be potentially disruptive to colonial rule, the authorities have created - as circumstances have required - statutory powers which override the common law framework under which freedom of expression may have been said, until the passage of the Bill of Rights, to be protected.' Even where the colonial statute has evolved and undergone reform over the years, the basic assumptions about the regulation of freedom of expression have been retained.2
A significant proportion of these powers began life as emergency legislation created in response to a perceived breakdown in public order, often as a consequence of events in China. Others were created in anticipation of any disruption or challenge to colonial rule, many of these either evolving or transferring from emergency laws into ordinary legislation. These vested the colonial authorities with highly discretionary quasi-emergency powers of censorship intended to control the expression of views in times when the "security" or "peace and good order of Hong Kong" was threatened. Broadcasting legislation, for example, is heavily laden with such provisions. The fear that instability and opposition to colonial rule might arise from the "communication of ideas in the public domain" has had a profound affect on policy.
1 Yash Ghai, "Freedom of Expression", in Raymond Wacks (ed.) Human Rights in Hong Kong, (Hong Kong: Oxford University Press, 1992), 370-71.
2 Id. at 370.
3
R Mushkat, "Peaceful Assembly" in Raymond Wacks (ed.) Human Rights in Hong Kong, supra note 1 at 415.
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