Urgent Business: Hong Kong, Freedom of Expression and 1997
an affirmative guarantee of the right to hold opinions without interference and the right to freedom of expression. The Bill's Article 16 is supported by other closely related rights -the right to freedom of thought, conscience and religion (Article 15), the right of peaceful assembly (17), and the right to form associations (18) - which together make a "strong presumption in favour of free ideas and free speech".4
3.1.1 Holding opinions without interference
Article 16 has three separate and distinct paragraphs. The first states that "Everyone shall have the right to hold opinions without interference". This right is absolute and cannot be restricted under normal circumstances, though it may be derogated from under conditions of emergency (see section 3.2.1 below). Its special and unrestricted nature has been upheld consistently by the United Nations Human Rights Committee (HRC) in its comments on the ICCPR's equivalent Article 19. The Committee, for example, has argued strongly that constitutions of single-party states which lay down a single political ideology yet also claim to allow for freedom of opinion - provided such opinion does not oppose state ideology - are incompatible with this right as it is understood and accepted internationally. Similarly, the HRC in various separate comments has clarified that the "arrest or detention of persons merely because of their political or other views is incompatible with the right to hold opinions"."
It is important to note, in this context, that Article 51 of China's constitution requires that freedom of expression "may not infringe upon the interests of the state, of society and of the collective". The arrest and detention of people as a result of their political or other beliefs is a common and well-documented practice there. In this regard, it is arguable that the subversion clause in Article 23 of the Basic Law is "one that carries considerable danger for the freedom to hold opinions and it will be important that the special character of the right in Article 16 (1) is affirmed and emphasized in the case law of the Bill of Rights.
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through any other media of his choice.
(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
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(a) for respect of the rights or reputations of others; or
(b) for the protection of national security or of public order (ordre public), or of public health or morals.
Yash Ghai, supra note 1, at 379. Discussion of these associated rights is largely outside the scope of this report,
though it is important to note that certain restrictions in existing laws, for example the law on assembly (Public Order Ordinance), are likely to be inconsistent with provisions of the Bill of Rights.
7
Kevin Boyle, supra note 1, at 14.
Yash Ghai, supra note 1, at 386.
Kevin Boyle, supra note 1, at 14.
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