HICC 246/1 RECEIVED NO
1 APK 1993
DESK OFFICER
INDEX
PA
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in Malhall
See para 7.
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grateful. It news
FROM:
ill Barrett
pa 246/1 ра
15
Assistant Legal Adviser K174 270 3381
Mr Bunten
DATE:
9 March 1993
HKD
HONG KONG: REPORT ON FREEDOM OF EXPRESSION
10
1. You asked for general comments on the Article XIX report on freedom of expression in Hong Kong. With apologies for the delay in sending them, they are as follows.
2. The report is well written and the legal analysis is generally sound. In my view its content deserves to be taken seriously. Much of it is factual, rather than legal in nature, so I will focus my remarks on the Conclusions and Recommendations on pp vii to xi.
3. Para 1: The Basic Law
It is asserted in para 1.4 that the JD specifically states that the power of final interpretation of the BL would rest with the SAR courts. This is not so; the JD does not say anything about the power to interpret the BL. Arguments that it does are presumably based on inferences drawn from JD 53 and JD 59-62.
4.
I agree with the view expressed in para 1.7 that one of the BL provisions most at variance with the ICCPR is Article 23. I agree also with the comment in para 2.2 that the uncertainties over the interpretation of this provision will be particularly acute since, according to Article 158 (3), it is one of the areas where HK courts will be obliged to seek an interpretation from the NPC Standing Committee. This could involve interpretation of the word "subversion". Since BL 23 provides that the SAR shall enact laws to prohibit treason, secession, sedition, subversion, etc. it is probably a subject on which the Chinese will be unwilling to discuss adaptation or even localisation at all. However, since this range of offences is bound to be one of the most troublesome in the future, I would agree with the suggestions in the report that urgent thought should be given now to what can be done to put as much of the required legislation in place in an acceptable form before
1997.
5. The argument in para 1.8 that China's powers under BL 18 are inconsistent with the JD has some force. If they mean that the CPG's powers to deal with "turmoil" within Hong Kong are inconsistent with JD 147, I would agree.
6. The statement in para 1.9 that China has no direct obligation to implement the ICCPR after 1997 is not correct; JD 156 amounts to a bilateral legal obligation. (This is dismissively acknowledged in para 2.4).
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