A Vigilant Public

  • Michael C. Davis

Abstract

With the signing of the Joint Declaration returning Hong Kong to Chinese sovereignty in 1997,1 Hong Kong faces an uncertain future. As Hong Kong assesses the elements of its current legacy and seeks a formula for continued stability and success, among the diverse elements, Hong Kong’s tradition of free expression is of particular concern. Free expression, as an institutional commitment, is fundamental to a society’s sense of self and the well-being of its people. Hong Kong now faces an occasion for serious reflection. What role does free expression play in a society? What is the emerging status of free expression in Hong Kong? Do current legislative and constitutional efforts in Hong Kong afford a formula for success in this role? Consideration of these questions not only exposes a better path for Hong Kong but also affords an opportunity for comparative study of free expression.

Keywords

Europe Assure Malaysia Defend Stake 

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Notes

  1. 6.
    The recent free speech legacy in Asia, especially as relates to the press, has been striking. Perhaps marked by a deep concern with political stability, Asian societies have struggled fitfully toward pluralist democracy. Serious opposition has been formally discouraged in several countries including, for example, China, Taiwan, North Korea, South Korea, the Philippines (at various times), Indonesia, Malaysia and Singapore (not to mention the various Marxist governments in South East Asia), to name a few. The press has been particularly curtailed in Asian countries with various licensing, emergency power, secrecy, public order, national security, and basic press laws operating to keep a tight lid on media criticism of the governments in the region. Critical stories by the foreign media have often resulted in the banning of foreign publications and expulsion of foreign reporters. Constitutions in the region have provided little protection from government excess, with the various relevant rights provisions affording rather liberal grounds for rights restriction. In ongoing comparative research in the area, the current author has noted a striking similarity in several countries in regulatory and constitutional practices. See generally, A. J. Nathan, Chinese Democracy (University of California Press, Berkeley, 1986);Google Scholar
  2. H. Scoble and L. Wiseberg, eds, Access to Justice: Struggle for Human Rights in Southeast Asia (Zed Books, London, 1985);Google Scholar
  3. R. S. Milne, D. K. Manzy, Malaysia: Traditions, Modernity and Islam (Westview Press, London, 1986);Google Scholar
  4. J. Drysdale, Singapore: Struggle for Success (Times Books Int’l, Singapore, 1984);Google Scholar
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  6. K. H. Youm, ‘Press Law in the Republic of Korea’, 6 New York Law School J. of Int’l and Comp. L. 667 (1986); ‘The Press in Asia’, Asia Magazine, p. 10 (14 June 1987) and p. 42 (28 June 1987); International Press Institute Reports (periodically reported).Google Scholar
  7. 9.
    A. Meiklejohn, ‘The First Amendment is an Absolute’, 1961 Sup. Ct. Rev. 245, 256–7 (1961). While urging that free speech is aimed at politics he feels that it protects expression within ‘the range of human communication from which the voter derives the knowledge, intelligence, sensitivity to human values: the capacity for sane and objective judgement’.Google Scholar
  8. 10.
    R. H. Bork, ‘Neutral Principles and Some First Amendment Problems’, 47 Indiana L. J. 1, 27 (1971).Google Scholar
  9. 12.
    See generally F. Schauer, ‘Must Speech be Special?’, 78 Northwestern U. L. Rev. 1284, 1289 (1983).Google Scholar
  10. 16.
    L. Alexander, P. Horton, ‘The Impossibility of a Free Speech Principle’, 78 Northwestern U. L. Rev. 1319 (1983).Google Scholar
  11. 19.
    L. C. Bollinger, The Tolerant Society, Freedom of Speech and Extremist Speech in America (Oxford University Press, New York, 1986).Google Scholar
  12. 28.
    O. M. Fiss, ‘Why the State?’, 100 Harvard L. Rev. 781, 785 (1987).CrossRefGoogle Scholar
  13. 29.
    See generally Lord McGregor of Durris, ‘Freedom of Expression and Information: Conditions, Restrictions and Limitations Deriving from the Requirements of Democracy’, 6 Human Rights L. J. 384, 391 (Sevilla Colloquy, 1985).Google Scholar
  14. 30.
    J. S. Mill, Three Essays (Oxford University Press, New York, 1975) (‘On Liberty’), p. 65. With respect to the above-noted political task (noted as one of the missions of a reflectively capable society), Mill appreciated that political tasks are among the obligations of people under representative government and that their achievement depended on the degree of general improvement in the society or its capability. Ibid., pp. 199ff. (‘Considerations on Representative Government’). To provide Hong Kong people with democracy, as called for in the Joint Declaration, and then to deny them the development of a reflective capacity is to deny them the capability to succeed in their political task.Google Scholar
  15. 33.
    Bollinger notes that the ideal judge has the ability to set aside his or her own bias, that the central ethic of the judiciary is tolerance. Bollinger, The Tolerant Society, p. 134. Bollinger notes further that the judiciary as an essentially powerless institution is dependent on its capacity for tolerance to secure the tolerance of others; and that, further, by having a certain ambiguity in the free speech principle over responsibility for tolerance we are relieved of indicating weakness for that which we choose to tolerate — ibid., pp. 135–7. A capacity for tolerance is, in my view, a significant ingredient in the building of an overall reflective capacity. Judicial suitability is further indicated by the enhanced judicial capacity for and emphasis on objective reflection. But see R. F. Nagel, ‘How Useful is Judicial Review in Free Speech Cases?’, 69 Cornell L.R. 302 (1984).Google Scholar
  16. 35.
    See H. C. Anawalt, ‘The Right to Communicate’. 13 Denver J. of Int’l Law & Pol’y 219, 225–26 (1984). Anawalt characterizes the latter view as the ‘Soviet’ view.Google Scholar
  17. 38.
    See Anawalt, ‘The Right to Communicate’; J. W. F. Sundberg, ‘Human Rights in Sweden: The Breakthrough of an Idea’, 47 Ohio State L.J. 951, 953 (1986); A. J. Nathan, Chinese Democracy, pp. 152ff. The Chinese viewpoints will be further discussed below under the section on the Basic Law.Google Scholar
  18. 40.
    The respondents’ recommendations fell generally into the following four categories: 1. Fully develop the supervisory role within the media and improve reporting techniques. 2. Formulate a press law, which accords greater liberty to media organizations and improves the leadership system in these units. 3. Further promote press freedom so that the press can truly act as the channel for dialogue within the community. 4. Fortify the moral concept of the press corps and correct malpractices. Ibid. A more liberal emphasis on development of a capacity for reflection, however, is still more likely to come from voices in dissent in China. Xu Wenli, a participant in the democracy movement (1979–80) and an avowed Marxist, is a case in point: A person who cannot think freely feels wounded. Only a minority are allowed to express their views. It is impossible to modernize the country unless you let the intelligence of a thousand million individuals unfold. So the problem of freedom of thought is more serious than that of physical attacks on people… G. Barme and J. Minford, Chinese Voices of Conscience (Far Eastern Economic Review, Ltd., Hong Kong, 1986), p. 304. Although the Chinese government may have come close to this view during the various ‘100 Flowers Movements’ (1956, 1980), they clearly would not do so now, as is clear from the recent campaign against bourgeois liberalism and the violent suppression of the recent democracy movement.Google Scholar
  19. 41.
    For indications of the vigour of resort to courts for review of administrative process in Hong Kong, see generally, D. J. Clarke, B. Lai and A. Luk, Hong Kong Administrative Law: Cases and Materials (Manuscript, University of Hong Kong, Department of Political Science, 600 pages, 1986).Google Scholar
  20. 42.
    As noted in Chapter 1, note 9, a recent survey in an ordinary community in Hong Kong shows that while the vast majority of respondents were dissatisfied with the fairness of various aspects of the legal system in Hong Kong, 75 per cent viewed it generally as just. The researchers in this case found a high degree of ‘alienation’ with respect to the legal system. Nevertheless, their study showed that half the respondents did not consider the legal system as ‘foreign and unsuitable to Chinese Society’. They found higher educated people more accepting of the legal system. There was strong support for the view that freedom was the major objective of law (68 per cent). 97.6 per cent of the respondents supported freedom of speech. They noted a correlation between this aspect and distrust of the Chinese government. They noted some problem with understanding the notion of natural rights, with only 22 per cent seeing rights as inalienable. See H. C. Kuan and S. K. Lau, ‘Common Law in Chinese Society: The Case of Hong Kong’, (Manuscript, The Chinese University of Hong Kong, May 1987).Google Scholar
  21. 43.
    Unlike Britain, however, Hong Kong does have constitutional documents in the Letters Patent and Royal Instructions. See, Letters Patent and Royal Instructions (Dated February 14, 1917), reproduced in P. Wesley-Smith, Constitutional and Administrative Law in Hong Kong, vol. I (China and Hong Kong Law Studies, Hong Kong, 1987), pp. 57–69. But these documents merely delineate the powers of government and do not contain a bill of rights component.Google Scholar
  22. 44.
    See Chapter 3; P. Wesley-Smith, ‘Legal Limitations Upon the Legislative Competence of the Hong Kong Legislature’, 11 Hong Kong L. Rev. 3–31 (1981). It has been urged that while such power has not been exercised it does exist in theory.Google Scholar
  23. P. Wesley-Smith, Constitutional and Administrative Law in Hong Kong, vol. II (China and Hong Kong Law Studies, Hong Kong, 1988).Google Scholar
  24. 50.
    See, J. A. Shumpter, Capitalism, Socialism and Democracy (third edn, paperback, Harper and Row, New York, 1962).Google Scholar
  25. 95.
    O. M. Fiss, ‘Two Constitutions’, 11 Yale J. of Int’l Law, 492, 501 (1986).Google Scholar
  26. 96.
    R. R. Edwards, L. Henkin, A. J. Nathan, Human Rights in Contemporary China (Columbia University Press, New York, 1986), p. 150.Google Scholar
  27. 114.
    See note 6. Strong popular concern with stability, perhaps led by often stated official Chinese and Hong Kong government emphasis on this, is revealed in recent public opinion surveys in Hong Kong. H. C. Kuan and S. K. Lau, ‘The Civic Self in a Changing Polity: The Case of Hong Kong’ (manuscript, Chinese University of Hong Kong, January 1988).Google Scholar
  28. 120.
    Article 35 of the Constitution of the Republic of Korea (Fifth Republic), for example, much like the previous draft Article 39 of the draft Hong Kong Basic Law and the language in some of the international covenants (especially the free speech provision discussed above), specifies, ‘The freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order or of public welfare’. This language, much like similar language in previous Korean constitutions, while not on its face unreasonable, ‘has been wielded as a sword to cut out the heart of the constitutionally guaranteed right to a free press, when no justifying national emergency really exists’, — K. H. Youm, ‘Press Law in the Republic of Korea’, 6 New York Law School J. of Int’l and Comp. L. 667, 673 (1986). A complete regime of press law essentially eliminating any opposition press has been imposed. A similar style of generous restriction of free speech is evident in the language of the constitution of Malaysia. Article 10 provides in Part (a) that ‘Every citizen shall have the right to freedom of speech’, but in part (b) permits parliament to impose by law ‘such restrictions as it deems necessary or expedient in the interest of the security of the federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of parliament or any legislative assembly or to provide against contempt of court, defamation or incitement to offense’. This along with weak institutional rights support means free speech has little protection. See note, 118.Google Scholar

Copyright information

© Michael C. Davis 1990

Authors and Affiliations

  • Michael C. Davis
    • 1
  1. 1.The Chinese University of Hong KongHong Kong

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