Presentation by Mr. Daniel R. Fung, QC, SC, JP Solicitor-General of the
HKSAR at the American Chamber of Commerce Communication and
Advertising Committee Freedom of Information Forum

Wednesday, March 18, 1998


FREE EXPRESSION IN HONG KONG UNDER CHINESE SOVEREIGNTY

Ladies and Gentlemen,

I am honoured and delighted to be asked to address you today on a subject close to your hearts as well as mine, and which has attracted considerable attention both here and overseas in the months and years leading to the resumption of the exercise of Chinese sovereignty of Hong Kong, namely, freedom of expression - a fundamental right and a veritable litmus test of the viability of the constitutional principle "One Country, Two Systems".

Many of you will remember the days not so long ago, when the full weight of international punditry leaned towards and 'smart money' was placed on the prognosis that free expression - alongside a whole range of other rights and freedoms that we take for granted before 1 July 1997 - would disappear down some political 'black hole' or, even in the best-case scenario, be curtailed and gradually eroded after that date.

Now that we have seen - with our own eyes - and experienced personally the Hong Kong Special Administrative Region (SAR) functioning for almost nine months after the resumption of Chinese sovereignty, we can put hand on heart and endorse the assessment made by the US State Department's Hong Kong Report on Human Rights for 1997 released on 30 January 1998:-

"Hong Kong has a tradition of free speech and of a free press, and there was little apparent change in these freedoms after reversion. ... People continued to speak freely to the media. Political debate remained vigorous. Numerous viewpoints, including stories and opinions critical of the Hong Kong and Chinese Governments, were aired in the mass media, in public forums, and by political groups. International media organisations operated freely. Hong Kong's 16 major daily newspapers, 2 commercial television stations, and 2 commercial radio stations functioned with virtually no government control. There were no special visas needed for foreign reporters to work in Hong Kong, and no government-issued press cards. The media continued to operate as they had earlier. Newspaper published without obvious reprisals. There was neither a sharp increase nor decrease of critical coverage. Some stories that were sensitive for China, such as a bombing in Xinjiang, were first reported in the Hong Kong newspapers. For the most part, Hong Kong reporters continued to enter China to cover sensitive stories related to Hong Kong, Taiwan, or the mainland."

Structural Underpinnings to Hong Kong's Human Rights Protection

But I will go further than the US State Department's report - to tell you this: another fact, perhaps less well-known than the assessment of the State Department, but no less important and for which insufficient publicity has been given, namely, that Hong Kong today is structurally, constitutionally and legally better served in terms of human rights protection than at any stage when we were a British possession.

Let me begin by examining the historical legal underpinnings to free expression in Hong Kong. Before 1991, we relied principally on the common law for our basic human rights protection. On 8 June 1991, we enacted a Bill of Rights which encapsulated in Article 16 the right to free expression and, adopting Article 19 of the International Covenant on Civil and Political Rights, "the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of [one's] choice". This provided a benchmark from June 1991 to June 1997 for the protection of free expression by law.

That said, the Bill of Rights has an inherent and undeniable limitation. All of us are only too aware, and there can be no controversy on this score, that the Hong Kong Bill of Rights Ordinance is a statute just like any other in Hong Kong, and it can be repealed by simple majority in the legislature.

The same cannot be said of the Basic Law. On 1 July 1997, for the very first time in Hong Kong's history, we have been given a comprehensive written constitution which protects, among other rights, free expression. This constitution, known as the Basic Law, is a very special instrument, not least by virtue of its genesis. The Basic Law was borne out of a solemn international legal obligation. Such international legal obligation was owed by the People's Republic of China to the United Kingdom under the terms of the Sino-British Joint Declaration initialled in September 1984 and signed in December 1984. The Joint Declaration is in the nature of an international treaty signed by the two sovereign states responsible for Hong Kong, registered with the United Nations under Article 102 of the UN Charter and has the force of international law.

The Joint Declaration spells out by way of Annex I China's policies towards Hong Kong after resumption of sovereignty. In Part XIII of Annex I, China specified that the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) shall be implemented as part of Hong Kong's domestic law after 30 June 1997 and enforceable through SAR laws. This was despite the fact that China herself had not yet acceded to either the ICCPR or the ICESCR.

The Joint Declaration also obliged China as a matter of international law to reduce the terms of the Joint Declaration into an enforceable domestic form. In other words, China was obliged by international law to introduce a mini-constitution for Hong Kong - and this was exactly what China did. Almost immediately after the Joint Declaration was ratified by the Parliament in UK in May of 1985, China established in June of 1985 the Basic Law Drafting Committee. This committee comprised 59 members, 36 from the Mainland with the remaining 23 from Hong Kong, representing all walks of life, experts as well as non-experts, lawyers as well as laymen. In December 1985, China established a complementary body known as the Basic Law Consultative Committee consisting of 180 members drawn exclusively from Hong Kong, again covering experts as well as non-experts, lawyers as well as laymen. For four and a half years, these two bodies laboured to produce a comprehensive mini-constitution for Hong Kong faithfully reflecting the terms of the Joint Declaration. Their work was complete in April 1990 when the Basic Law was promulgated by China's Parliament, the National People's Congress, to come into operation on 1 July 1997.

Among the 160 articles comprising Hong Kong's first-ever comprehensive written constitution, 19 form a discrete section known as Chapter III being Hong Kong's constitutional bill of rights. Article 27 of the Basic Law falling within Chapter III protects specifically the right to "freedom of speech, of the press and of publication" as well as "freedom of association, of assembly, of procession and of demonstration". More importantly, Article 39 of the Basic Law incorporates both the ICCPR and the ICECSR as part of Hong Kong's domestic law and provides that the provisions of these two international covenants shall be implemented through Hong Kong law.

The second paragraph of Article 39 is even more significant in that it provides that there shall be no curtailment of any right enjoyed by Hong Kong residents, save by law but that no law shall contravene the provisions of preceding paragraph of this Article. In other words, since the preceding paragraph deals with the incorporation or domestication into Hong Kong of the ICCPR and the ICESCR, the provisions of these two covenants constitute the bottom line for human right protection by law in Hong Kong today and a floor below which human right protections may not legally be permitted to descend.

Developments Since 1 July

Developments since 1 July 1997 have been equally significant. The first such development took place immediately before the Clinton-Jiang summit in Washington DC in October last year. As President Jiang Zemin was about to board his plane for Hawaii, he announced on 25 October 1997 that China would accede to the International Covenant on Economic, Social and Cultural rights. On 28 October 1997, China's permanent representative to the United Nations, Ambassador Qin Huasun, signed the ICESCR in New York. This was an historic moment since it marked China's completion of a virtuous circle in being the last of the five Permanent Members of the UN Security Council to sign the ICESCR.

The second such development took place on 22 November 1997, when China announced that it would submit reports on behalf of Hong Kong to the United Nations under both the ICESCR and the ICCPR, despite the fact that China had yet to ratify the ICESCR and had not yet even signed the ICCPR. This was, again, an event of very considerable moment since this was the exact result China, the UK, the UN Human Rights Committee and the Committee on Economic, Social and Cultural Rights had been working towards for many years before 1 July 1997. Hong Kong is therefore ensured the continued scrutiny of the relevant UN treaty-monitoring bodies in respect of its human rights regime.

The third such development took place on 4 March 1998 when China announced that it would submit reports on Hong Kong to the United Nations under the ICESCR and ICCPR in August 1998. This meant that in accordance with a modus operandi adopted as between the Ministry of Foreign Affairs (MFA) and the SAR Government, the latter will draft reports for Hong Kong under both the ICESCR and the ICCPR and submit such drafts to the MFA for onward transmission to relevant United Nations treaty monitoring bodies.

Such an approach follows identical practice adopted during Hong Kong's period as British territory. Since reporting obligations to the United Nations are sovereign obligations undertaken by states parties to particular treaties but recognising the de facto high degree of autonomy Hong Kong enjoyed as a British Crown Colony, draft reports were prepared by the Hong Kong Government and submitted to the UK Foreign Office for onward transmission to relevant UN treaty monitoring bodies.

Indeed, in a significant development which took place in the second half of 1997, the SAR Government had already arrived at a comfortable modus operandi when it drafted the first report for Hong Kong under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and submitted that draft to the MFA for onward transmission to the CEDAW Committee. Such submission is likely to take place in September 1998 with a hearing scheduled for January 1999.

In an interesting reversal of roles, China preceded the UK in accession to CEDAW in 1980, some 6 years before the UK did so and some 16 years before the same was extended to Hong Kong as a British dependency in late 1996. Hong Kong has therefore never submitted for it any report under CEDAW, but the same will take place this year by China acting for Hong Kong as an SAR.

More importantly, the CEDAW submission and hearing will serve as an invaluable blueprint and template governing China's subsequent reporting for Hong Kong under the other five multilateral human rights treaties, namely, the ICCPR, the ICESCR, the Convention Against Torture (CAT), the Convention on Rights of the Child (CRC) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

A fourth interesting development also took place earlier this month when China announced on 12 March 1998 that it would sign the ICCPR. This announcement came during a press conference called by the outgoing Foreign Minister Qian Qichen to disclose his retirement from office. Although cynics have regarded the announcement as a clever footwork to head off US proposals to table a resolution condemning China's human right practices before the United Nations and the same was, indeed, effective in so doing in that shortly thereafter, despite a 95 to 5 overwhelming majority vote in the US Senate urging President Clinton to table such resolution before the UN, the US State Department announced it would not do so, thereby mirroring the position of the European Union, it is undeniable that China's announcement of intended accession to ICCPR is an important, positive first step in recognising the legitimacy of such international standards of human rights protections and in extending such protection to its citizens.

From Hong Kong's perspective, such announcement has the added significance of a Central Government move to eliminate discrepancies between Hong Kong's position on human rights and that of the Mainland, which would politically reinforce Hong Kong's human rights regime. From an international perspective, this is an historic move in rendering the PRC legal position on human rights protection consistent with those adopted by the other four Permanent Members of the UN Security Council, namely, the USA, Russia, the UK and France.

More than 2 years ago in Washington DC, when still a young man fresh in the office, I was rash enough to have stuck my neck out and predicted Chinese accession to both the ICCPR and the ICESCR sometime after Hong Kong's reversion to China on 1 July 1997 and the year 2000. Today, half my money is safe and - touch wood - the other half looks to be secure as well.

Other Protections on Free Expression Surviving the Transition

Legislative Amendments

Apart from the constitutional guarantees I have outlined, we as a community in Hong Kong are also well-served by a comprehensive range of statutory and administrative provisions protecting our right to freedom of expression.

Since the enactment of the Bill of Rights Ordinance in 1991, we as a government have carried out a comprehensive review of existing laws which are either obsolete or which may threaten freedom of expression. A total of forty amendments were made in this light between June 1991 and July 1997. Among other significant changes, we have:

swept away old and excessive regulations under the Emergency Regulations Ordinance, while preserving the means to act swiftly to protect public safety in an emergency in ways which are consistent with the Bill of Rights Ordinance and the ICCPR;

removed provisions in several laws so as to give the press more freedom to report and comment on court proceedings;

removed the Dickensian criminal offence of maliciously publishing defamatory libel;

ensured that newspapers will be allowed the greatest possible freedom in the way they conduct their activities;

removed power to pre-censor TV and radio broadcasts; and

restricted the powers of law enforcement agencies to enter into premises to search for and seize journalistic materials.

These changes were preserved as part of the laws of the HKSAR by virtue of Article 8 of the Basic Law and continue to provide statutory guarantees of free expression in Hong Kong today.

The Code on Access to Information

In addition to the constitutional, statutory and administrative guarantees I have already canvassed, we as a government subscribe to the trinity of principles known as transparency, accessibility and accountability which constitute the bedrock of open government. We are governed by the Code on Access to Information. This Code was introduced on a pilot basis in March 1995 and extended to the whole Government in December 1996. It continues to apply in full force today.

The Code serves as a formal framework for the provision of information by government agencies. The approach to release of information under the Code is positive. In other words, departments should work on the basis that information requested will be released unless there is good reason for not doing so. The Code requires departments to actively impart information to the public and also establishes a mechanism for individuals to obtain government information. The Code provides for a less legalistic and confrontational approach, allowing for a more flexible review and interpretation, with less scope for legal costs and delay.

As at the end of last year, we as a government had received a total of 3,358 requests. Of these, 2,906 or 86.5% were met either in full or in part. Only 89 or 2.6% were refused. Five complaints have been lodged with the Ombudsman. Three cases were found to be unsubstantiated, one partially substantiated and, in one case, investigation was discontinued when the information requested was released after an internal review by the department concerned.

The value of the Code was recently tested when the Hong Kong Journalists Association (HKJA) - which no-one would consider a government lapdog - carried out a survey on the level of openness within the SAR Government and requested more than 80 documents from over 30 government departments under the Code. A working level internal memo was sent within the Government to front-line Access to Information Officers urging them to meet the requests as far as possible. A copy of the memo was later given to the HKJA. Throughout, we have stressed that the primary aim of the Code is to maintain an open government, an object which clearly complements and reinforces the right to free expression.

Dissemination of Government Information through the Internet

As part of the SAR Government's commitment to open government, we have announced in their 1996 Policy Commitments that the Government would encourage all bureaux and departments to make more effective use of the Government Information Centre on the Internet to communicate with the public. Under this policy, all Government bureaux and departments have set up home pages by the end of 1997. In general, most of them have provided on their home pages details of their organisation, information about the services they provide, performance pledges and the extent to which they have been met, lists of records and information published, and explanations of new services or changes to existing ones. In addition, consultation papers are generally made available on the Internet and public views are collected through that medium.

To achieve this target, we have established an Internet Resource Centre in the Information Services Department. This assists bureaux and departments to make or improve their home pages. The SAR Government's own home page - the "Government Information Centre" - was launched on 5 December 1995. As at end of February 1998, it had received a total of 1,747,817 visits to its index page. The daily average number of visitors had increased from 467 in December 1995 to 3,206 in July 1997, and further to 5,143 in February 1998.

The Judiciary

The right to freedom of expression is, as everyone knows, not absolute. Under ICCPR and the Bill of Rights Ordinance, freedom of expression may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:-

for respect of the rights or reputation of others; or

for the protection of national security or of public order (ordre public), or of public health or morals.

In this respect, the judiciary plays an important role in balancing the right to free expression and other overriding public interest. Judicial independence is fully guaranteed in the Basic Law The position of the judiciary has been substantially strengthened after 30 June 1997 by constitutional guarantees embedded in the BL. For example, such values as the independence of the judiciary and the continuation of the previous judicial system are now constitutionally entrenched in Articles 81 and 85 of the BL.

Secondly, as contrasted with the previous colonial regime where legal disputes were determined ultimately by a court physically situated eight thousand miles away and manned by not a single Hong Kong person, we have today - for the first time - a Court of Final Appeal located within the jurisdiction and served by Hong Kong judges, but with the added flexibility of specialist input from visiting common law judges from overseas on appropriate individual cases. This unique structure of allowing non-national, non-resident aliens a vital input into the judicial process at the very highest level stands as a tribute not merely to Hong Kong's much vaunted pragmatism but is a fit reflection of Hong Kong's status as the leading financial, managerial services and dispute resolution centre in East Asia and the Western Pacific Basin.

Moreover, the system governing the appointment of judges and their security of tenure has been qualitatively improved over the previous regime. In the late colonial era, judges were appointed by the Governor as plenipotentiary of the British Crown after taking advice from an independent commission established in 1976 known as the Judicial Service Commission (JSC), chaired by the Chief Justice and comprising as members the Attorney General, serving judges, practising lawyers and laymen. Although the Governor, following long-standing political convention, normally acts in accordance with such advice, he was not obliged to do so by law, since judicial appointments have always been considered an exercise of Her Majesty's prerogative.

Today, however, under Article 88 of the BL, judges are appointed by the Chief Executive in accordance with the decision of an independent commission of nine known as the Judicial Officers Recommendation Commission (JORC), chaired by the Chief Justice and comprising the Secretary for Justice, two senior judges, one barrister and one solicitor in the private practice and three eminent lay persons. Unlike the pre-1997 arrangement, the CE is mandated by law - indeed, constitutional law - to implement such decisions of the JORC.

Further, decisions of the JORC may be reached by a majority vote of seven to two (a device introduced to the JSC in 1990), thereby effectively precluding the sole member of the executive arm of government, namely, the Secretary for Justice, from exercising a power of veto. Finally, as can be appreciated, the executive arm of government has but one vote out of nine within the JORC and, even counting judges among members of the government, private sector votes clearly outnumber those from the public sector by five to four.

Judicial decisions made prior to the handover survives as part of our present legal fabric. Judicial precedents from other common law jurisdiction may continue to be referred to under BL 84. We can therefore expect Hong Kong's judiciary to continue to benefit from overseas human rights jurisprudence from the House of Lords, the Privy Council, the Supreme Court of Canada, the High Court of Australia, the Court of Appeal of New Zealand and the US Supreme Court, to name but a few eminent institutions from the broad swathe of the common law patrimony. In line with previous jurisprudence in human rights cases, the SAR judiciary may also refer to decisions of the European Court of Human Rights and the UN Human Rights Committee. The constitutional experience in other common law jurisdictions on free expression will continue to provide a fertile source of inspiration to the SAR courts for many years to come.

So much for the structural protections in Hong Kong today which look to be in far better shape than they ever were when Hong Kong was a British possession. What of the reality on the ground?

Reality on the Ground

Today, having lived through nine months of Hong Kong under Chinese sovereignty, most of us in this room would share the view that our rights and freedoms, including our right to free expression has not only not been eroded, but has survived and flourished in robust fashion.

Let me illustrate that statement by sharing with you some interesting but unpublicised figures. From 1 July 1997 to 28 February 1998, there have been over 1,000 public demonstrations in Hong Kong but only 12 arrests. Such statistics are not merely the envy of police forces and law enforcement agencies the world over - just ask Mayor Giuliani in New York - but constitute eloquent testimony to the survival of civil society in Hong Kong under Chinese sovereignty, to our sense of tolerance and civilisation - statistics which can only be dreamed of in any other major, vibrant, over-crowded metropolis overseas.

Every morning, when we wake up in Hong Kong and pick up our morning papers to read over breakfast, we are greeted by articles, editorials as well as op-ed pieces criticising Hong Kong Government, our policies and individual officials from the Chief Executive through the various Policy Secretaries downwards. Throughout our waking hours, from the time we drive to work to the time we go home, we hear over the radio similar views and criticisms. Every evening before we go to bed, we lie down with television images recording public criticisms of the government and the public officials as well as its policies. No one can honestly describe Hong Kong today as a place or a community which is devoid of free expression or which does not subscribe to such values. Even half the world away in Washington DC, the US State Department considers this to be the case.

A few examples will suffice to bring home this point. On 1 July 1997, in the early hours of the morning when the handover celebrations were taking place and the Provisional Legislature Councillors were being sworn into office, public demonstrations took place both in Statue Square and in front of the Convention & Exhibition Centre to greet leaders not just of the newly-formed SAR but of the PRC itself.

Similar demonstrations were held in September last year when the World Bank and the IMF held their conference in Hong Kong. Such demonstrations were launched not just against the leaders of the Central People's Government but also of the IMF and the World Bank itself. These included well-known public figures lying down on the public highway impeding traffic, who had to be physically but courteously removed by the authorities.

On 10 October 1997, Taiwanese flags were flown in Hong Kong. The same were firmly but courteously and efficiently removed by the authorities with no civil unrest taking place. Demonstrators defaced and burned a PRC flag. The matter was handled sensibly, courteously, efficiently by the police and subsequently, on legal advice, the demonstrators were charged with defacing the national flag being an offence under Hong Kong law as well as Annex III of the Basic Law. The matter will be handled through our courts - just like any other criminal offence in Hong Kong.

We have today in Hong Kong, arguably, the freest and the most robust media - both print and electronic - anywhere in Asia. Indeed, even our public service radio and television station criticises the Hong Kong Government, its policies and officials robustly without either fear or favour. This is despite the fact that this station is publicly funded with taxpayers' money. Although controversy has erupted recently as to whether a public broadcaster should conduct affairs in such manner, the position of the station enjoying complete editorial and broadcasting freedom had been vigorously defended by the administration.

Two weeks ago, I had the honour and privilege of meeting - courtesy of the US Consulate General - arguably one of the most important religious delegation ever to visit China. This was an ecumenical delegation led by Archbishop McCarrick and Rabbi Arthur Schneier who visited Beijing, Chengdu and Lhasa as part of an exchange of visits on religious freedom agreed to between President Clinton and President Jiang in October 1997. This distinguished delegation gave Hong Kong high marks for tolerance and for constituting a beacon of civilisation and religious freedom in this part of the world. I mention that not because Hong Kong should therefore rest on its laurels, but because the observations of such distinguished visitors of undoubted integrity who have come halfway round the world to visit us on a fact-finding mission provide some of the best evidence on the continued survival and flourishing of freedoms, including free expression, in Hong Kong today.