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DATELINE: HONG KONG

The Basic Law promises freedom of speech. But will it deliver? : Professor Yash Ghai.

Introduction: Yash Ghai is Professor of Public Law at Hong Kong University and a specialist in constitutional law. His new book, Hong Kong's Constitutional Order, is the first systematic analysis of the legal, economic, social and political system of Hong Kong as a special administrative region of China. In this interview, he explains the provisions of the Basic Law which are supposed to provide for freedom of speech in Hong Kong after 1997. He discusses the fatal flaw in the agreement, which will allow China to decide whether breaches of human rights in Hong Kong will even be reported to the United Nations human rights committee.

It may also be that while Westerners see the Basic Law as similar to their own constitutions (e.g. a working legal document), China may see it as similar to its own constitution; a document which promises much but which has little direct relevance to day to day legal decisions. The interview was conducted on 27.2.97 at Hong Kong University.

Ghai:"The Basic Law protects freedom of expression in a number of different ways. First of all, it has a chapter which is called The Fundamental Rights and Duties of Residents (Chapter Three). There is protection of freedom of speech, of the press and publications. The same Article twenty Seven protects freedom of association, assembly, procession, demonstration and the right to strike and form unions. There is also the protection of the freedom to engage in academic research, literary and artistic creation and other cultural activities. Academic institutions have also been promised autonomy. These specific provisions are very important. Over and above that, there is in Article Thirty Nine, a promise to maintain an international system for the protection of human rights; the international covenant on civil and political rights. It says there will be no restrictions introduced in Hong Kong which are incompatible with the covenant.

Knight: In practice, how would an appeal to the international covenant work?

Ghai: "Well there are two aspects of the international covenant. One consists of substantive provisions which give these rights through Article 19. The second aspect of the covenant is the recourse to international machinery, in the case of a violation of rights. Principally as far as Hong Kong is concerned, it consists on periodic reports to the UN committee on human rights, which supervises the interpretation of the covenant.

Knight: So it's not just a question of making a complaint? Someone is monitoring the situation?

Ghai: "They receive reports from the government responsible for the country. Until now Britain has been filing these reports and in recent years the UN committee has focused a great deal of attention on Hong Kong, precisely because of the transfer of sovereignty. Under pressure of the UN committee, Hong Kong has take a number of steps to strengthen human rights. In 1991, the government adopted the Bill of Rights Ordinance, in order to give effect to the covenant in domestic law and the government undertook a review of all existing laws to ensure compatibility with the convenant. But Britain didn't accept that part of the convenant which allows individuals to make complaints to the UN committee. So what we have is normally every two years a report, although in recent months more frequently, whereby Britain as a sovereign power sets out its reports. People Hong Kong have produced alternative reports and have gone to New York and Geneva or where ever the committee meets to present them. That on the whole has been a positive development. But the question is whether China will continue to report on the human rights in Hong Kong. China itself is not a party to the covenant and so it does not have a direct responsibility for reporting to the UN. But the argument of the British and many other persons is that in the Joint Declaration between Britain and China, China undertook to keep in effect the covenant and keeping in effect the covenant involves the reporting procedure. But China has taken the line that it has no obligation to report to the UN committee and I believe the matter is still being discussed between Britain and China in the joint liaison group. The UN committee itself made a ruling recently that China does have an obligation to report to the UN committee even though China itself may not be a party to the covenant.

Knight: Under international law, are there any sanctions that could be made against China for refusing to co-operate?

Ghai: "Not really. The UN committee does not have what you might call a binding jurisdiction. All it can do is express its opinion if it feels a country is in breach of an obligation. Its opinions are not binding. If you look at the record, you can see that several countries have take the convenant seriously and amended their laws.

Knight: Would these be countries where human rights are already secure?

Ghai: "Yes. But look at Canada. Quebec has been in default of the covenant in relation to language rights and rights of expression. But Canada has done nothing about Quebec. So even if a country like Canada can disregard the opinions, other countries are likely to do so.

Knight: So to summarise, what we have is an international covenant which is intended to protect human rights but breaches of that covenant have to be notified by the sovereign power. In this case, the incoming sovereign power, China, not only says it has no obligation to report, it may be that it can not be made to do so. Is that right?

Ghai: Yes.

Knight: So what about greater China. Does its own constitution provide for freedom of speech?

Ghai: "China's constitution provides for many freedoms and many rights, including the freedom of expression but the Chinese constitution is not directly operable. It requires legislation to become effective. China has in recent years been passing legislation, regulating the press and the media. So the rights are to be gathered from the legislation and not the constitution. We argue in Hong Kong that the Basic Law is directly enforceable and it doesn't require any further legislation. So if you look at China, there are many provisions which allow the government to suppress papers, to apply censorship, to punish journalists. I could not say that China has an effective system for protection of freedom of the press.

Knight: So the Chinese constitution is a statement of ideals rather than a working legal document which provides a basis for legal actions?

Ghai: "Yes that is fair. The Chinese constitution is an inspirational and ideological document. If you want to know about people's rights then you have to turn to other legislation. Even then the other legislation may not give you a very precise idea of what happens in practice.

Knight: So if the Chinese government sees the Basic Law in the same way it sees its own constitution, that is significantly different from Western ideas of the ways laws should work?

Ghai: "Yes that is the great fascination for me as a constitutional lawyer. It is also the great challenge of the Basic Law. The Basic Law will be adjudicated in both the Hong Kong courts and by the committee of the Chinese People's Congress. You have this one document which is subject to two different regimes of interpretation. The questions about freedom of expression in Hong Kong would normally be a question for the Hong Kong courts. But there is an article in the Basic Law which is relevant to freedom of expression and that is Article 23. It requires Hong Kong to make laws which prohibit any act of treason, secession, sedition or subversion against the central People's government, or the theft of state secrets. It prohibits political organisation or bodies from establishing ties with foreign political organisations. Matters which concern Hong Kong and the mainland are matters are the responsibility of the mainland authorities and would be subject to interpretation by the Central Committee. Now while the question of basic freedoms are the matters for the Hong Kong courts, Article 23 means certain questions of freedom of expression are a matter for China. For example, criticism of Chinese authorities might be regarded as something that could be covered by Article 23. Hong Kong courts might take the line, consistent with common law which they would define, that the Basic Law is binding and directly creates rights and obligations. But the two bodies could have different approaches. How one resolves that is not clear. I suppose that ultimately the standing committee of the national People's Congress will prevail because it also has a general power of interpretation of all the laws passed in the People's Republic of China.