ARTICLE 19 and The Hong Kong Journalists Association
3.2 ARTICLE 16 AND THE BROADER CONTEXT OF THE BILL
The capacity of Article 16 to guarantee effectively the right to freedom of expression rests not only on how narrowly - and in how enlightened a way - its restrictions are interpreted in the spirit of promoting the right but also on factors affecting the wider scheme of the Bill of Rights. Prominent amongst these is the continued security and status of the Bill in the future constitutional environment of the Basic Law under the post-1997 SAR.
3.2.1 Derogation
Freedom of expression is one of several fundamental rights laid down in the Ordinance that may be derogated from in a state of emergency. Section 5 of the Bill of Rights allows for derogation from Article 16 if there is a "public emergency which threatens the life of the nation".
How elastic is the concept of derogation? Human rights, and particularly freedom of opinion and expression, are highly vulnerable during times of crisis and emergency. More often than not emergencies are declared not because the state of public order "threatens the life of the nation", but rather to protect the threatened interests of a particular administration, party or class. Significant censorship is vital to the prosecution of such emergencies, to hiding abuses and for spreading propaganda and disinformation. Witness the events of 1989 in Beijing.
If derogation is carried out in the intended spirit of the legislation, if it seeks to do minimum damage to a particular right, then it should follow the principle of minimum derogation consistent with the public need to declare a state of emergency. Though not expressly excluded from derogation, it has been argued that the right to freedom of opinion, given its special and unrestricted nature, should not be derogated from under any circumstances (it is often the case, during emergencies, that people are arrested and detained for their views). Arguably, also, there should not be complete censorship of the media, only the absolute minimum that would allow the public authorities to cope with the emergency at hand.21
One important problem with derogation in the Hong Kong context takes us back again to the interpretation of the term "nation". As with "national security" in paragraph 3(b) of Article 16 itself, a deliberate choice was made by the drafters to use the wording "life of the nation" rather than "life of Hong Kong". In its recent report, the International Commission of Jurists has recommended that, "the existence of a state of public emergency, and hence of the power of derogation, should be looked at in the context of Hong Kong alone, and not of the PRC as a whole".?
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21 Kevin Boyle, supra note 1, at 13.
22 Countdown to 1997, supra note 1, Chapter XII at 96.
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