The recent arrests made by the police have drawn baseless criticisms from overseas politicians and entities. It is appalling to see that some even openly demand the immediate release of the arrested persons. Such demands are not only a gross disrespect for the rule of law, but also are in blatant violation of international law and the basic principle of non-intervention. Since the legal proceedings of the case concerned have already commenced, no one should further comment on any matter that is sub judice. Our legal system ensures that justice will be properly administered and due process will be observed.
Without commenting on the case, I would like to explain some legal principles in relation to the fundamental rights and freedoms protected by the law. Freedom of speech or expression and freedom of the press are guaranteed by the Basic Law1 and the Hong Kong Bill of Rights (which gives effect to the provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong)2. By virtue of Article 4 of the National Security Law (NSL), such rights and freedoms shall be protected in accordance with the law in safeguarding national security in the Hong Kong Special Administrative Region.
Whilst such rights and freedoms should be respected and protected, they are not absolute. They may be subject to restrictions that are provided by law and are necessary for pursuing legitimate aims such as the protection of national security or public order. It should be borne in mind that the safeguarding of national security and the preservation of the constitutional order of “one country, two systems” are matters of fundamental importance as stipulated in Article 2 of the NSL and long recognised by the courts of Hong Kong.
It is important to remind us all, as many often forget, that rights come with responsibilities. Freedom of expression is no exception. Indeed, Article 16(3) of the Hong Kong Bill of Rights expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. The concept of “responsible journalism” is well-established in international jurisprudence on human rights, and courts have consistently reiterated that journalists cannot be exempted from their duty to comply with ordinary criminal law3. Journalists are entitled to the protection of the freedom of expression on the premises that they act in good faith and on an accurate factual basis and provide reliable and precise information in accordance with the tenets of responsible journalism4. Publishers and editors of newspapers are likewise obliged to observe the special duties and responsibilities in journalistic activities5.
The boundary between genuine journalistic activities which should be protected, and offences endangering national security which should be prevented, suppressed and punished in accordance with the law, is thus reasonably clear. It is indisputable that the free flow of information in accordance with the law has always been well-respected in Hong Kong. Those baseless allegations against the enforcement of laws for safeguarding national security are purely made out of ignorance or with ulterior motives, which will have no weight when viewed objectively.
December 31, 2021
1 Article 27 of the Basic Law.
2 Article 16 of the Hong Kong Bill of Rights, See also Article 19 of the ICCPR.
3 For reference, see Guide on Article 10 of the European Convention on Human Rights (last update as of 30 April 2021) (https://www.echr.coe.int/documents/guide_art_10_eng.pdf), paragraphs 302-308.
4 Ibid., paragraphs 312-313.
5 Ibid., paragraph 331.