Grinding Down the Edges of the Free Expression Right in Hong Kong

Abstract

In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region, the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in a different way, by pushing back against localists across a number of policy domains. It, along with public bodies and other establishment voices, has justified these actions by claiming that open avocation or perhaps even mere discussion of localism is itself automatically ‘unconstitutional’. I argue, however, that the Basic Law is essentially vertical in its operation, defining the structure and values of the Region and from there its relationship to the citizen. Thus, it is not the people of Hong Kong that are directly bound by the terms of the Basic Law, but rather the Government itself. Grinding down the edges of the expression right on the basis of this false perspective is not only wrong, it is counter-productive. Though only a tiny number of Hong Kongers identify with the localist position, an aggressive campaign against their political speech rights may serve to reinforce the perception amongst the wider population that the ‘one-country, two systems’ model is not as robust as previously believed — and thus ironically making the localists’ point for them.

Keywords: hong kong, china, expression, constitutional law, speech rights, localism, OCTS, basic law