THE UNIVERSITY OF HONG KONG LIBRARIES. Hong Kong Collection. gift from Cheng Kar-Foo, Andrew

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2 THE UNIVERSITY OF HONG KONG LIBRARIES Hong Kong Collection gift from Cheng Kar-Foo, Andrew

3 Freedom of speech is a fundamental right In an open and democratic society, the government is subject to close public scrutiny. Protection of the fundamental freedoms of speech, assembly and association serves to guarantee the rights of the public to form and effectively communicate their opinions, including those which are critical of the policies and measures of the government and which expose its weakness. "Such are the demands of pluralism, tolerance and broadmindedness, without which there is no 'democratic society'" - The European Court of Human Rights, Handyside v. United Kingdom The Universal Declaration of Human Rights, adopted in 1948, provides the cornerstone for the protection of human rights, including the freedoms of speech, assembly and association. The International Covenant on Civil and Political Rights (ICCPR) elaborates on the civil and political rights stipulated in the Universal Declaration. The ICCPR provisions, as applied to the Hong Kong Special Administrative Region (HKSAR), have constitutional status by virtue of Article 39 of the Basic Law. "...that the best test of truth is the power of the thought to get itself accepted in the competition of the market" - Justice Holmes, U.S. Supreme Court, Abrams v. U.S "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." - Universal Declaration of Human Rights, Article 19

4 The responsibilities of exercising the right The right to freedom of expression is not absolute, as its exercise can have a detrimental effect on the rights and freedoms of others and on society as a whole. Responsibilities attached to the exercise of freedoms have been recognized in many international instruments, constitutions and legislation. "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." - Universal Declaration of Human Rights, Article 29(2) The ICCPR, which has constitutional status in Hong Kon^tfyrpugh the Basic Law, spells out the responsibilities exercise of the right to freedom of expression. 4^& fep^l ^' "The exercise of the rights (to freedom with it special duties and responsibilities. It be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals/ 7 -ICCPR, Article 19(3) The ICCPR goes further to stipulate that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

5 The proposed sedition offence Legislative proposals The proposed offence of "sedition" is defined as inciting others - (a) to commit treason, secession or subversion; or (b) to cause violence or public disorder which seriously endangers the stability of the state or the HKSAR. The proposals in the consultation document have substantially narrowed the scope of the existing "sedition" offence. Existing broad definition of sedition to be repealed Under the existing law, "seditious intention" includes: (a) to bring into hatred or contempt the Government or the administration of justice of the HKSAR; or (b) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong. Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a "seditious intention;" or utters any words having a "seditious intention," would commit an offence. -See sections 9 and 10 of the Crimes Ordinance Under the proposals, one would commit sedition only if one incites others to endanger the state by levying war or by means of force, threat of force or other serious unlawful means akin to terrorist acts, or to create gravely serious incidents of violence or public disorder. This will not undermine the freedom of speech. The proposed offence of "sedition" is in fact based on the existing common law offence of "incitement." The scope of the criminal law has not been expanded. What is "incitement"? "Incitement" is a long-established concept in common law. Under the common law, the act of "inciting" others to commit a substantive offence, for example murder or theft, is itself an offence. To convict a person of the common law offence of "incitement," the prosecution must prove beyond reasonable doubt that (a) he has compelled or encouraged others to commit a crime; and (b) he has the intention of others, after being incited by him, committing a criminal act that leads to an offence. In other words, if the person does not believe that others would commit the offence incited, he does not commit an offence of "incitement" because he lacks the requisite intention.

6 Full compliance with international human rights covenants law in Hong Kong shall contravene the Basic Law. Chapter 3 of the Basic Law protects the freedom of speech, of the press, of publication, of association, of assembly, of procession, of demonstration and the freedom to engage in academic research, literary and artistic creation. Restriction of such rights and freedoms must comply with the provisions of the two international covenants as applied to Hong Kong. All laws that implement Article 23 must not contravene the human rights protections stipulated in the Basic Law. The proposed sedition offence prohibits only incitement of others to endanger national security by such means as levying war or use of violence. The offence is in full compliance with the protection of freedom of speech. Internationally renowned specialist in human rights law, Mr. David Pannick, QC, pointed out in his opinion to the HKSAR Government that the proposals in the consultation paper are consistent with the protection of human rights. Public Consultation The Government is conducting a public consultation exercise on the legislative proposals to implement Article 23 of the Basic Law. Copies of the consultation document are available at the Public Enquiry Service Centres of all District Offices, and can be accessed at the Security Bureau website at or the Government Information Centre website at Your views should be forwarded to the Security Bureau by 24 December. By post: By fax: th Floor, East Wing, Central Government Offices, Lower Albert Road, Hong Kong. By bl23@sb.gov.hk Security Bureau December 2002

7 21 FEB Wouic? 1 commit the sedition offence? Situation In the course of teaching, cultural or artistic creations or performances, or other discussions, touching on political or historical issues, presenting dissenting opinions or views, or making satirical or critical remarks. Delivering speeches or shouting slogans which criticise the state, the constitution, the government, or its policies or leaders. Conducting lectures, cultural or artistic activities, making comments or shouting slogans which unintentionally causing others to commit treason, etc. Participating in processions or demonstrations which turn into public order incidents such as physical conflicts or violent confrontations. Participating in processions or demonstrations, in which other participants committing criminal offences. Participating in processions or demonstrations, and intentionally inciting others to criminal actions (such as violence or burning vehicles) Publicly expressing support of strikes or demonstrations in the Mainland, and such acts would have breached the laws of the Mainland. Violent conflicts happened as a result of media reports of political incidents or comments. Sedition? Remarks intention that such activities would cause others to commit crimes or cause serious violence or public disorder, and therefore would not constitute sedition. It is not a sedition offence when there is no intention that such speeches or slogans would cause others to commit crimes by force, etc. or cause serious violence or public disorder; or when one does not believe that the speeches would cause such consequences. Causing crimes unintentionally without criminal intent would not constitute sedition. Participants without the intention to commit a crime, when the public order incidents are incited by others, would not commit the sedition offence. Common public order incidents would not seriously endanger stability of the state or the HKSAR, and would not amount to sedition. Participants who had not carried out, and had no intention to incite others to carry out criminal acts would not be responsible for the criminal acts of others. Unless the person intended and believed that the aim of secession or subversion, or seriously endangering the stability of the state or HKSAR, etc. could be achieved by such means, this would not constitute sedition. If the acts incited are not unlawful in Hong Kong, the incitement would not be an offence in Hong Kong. Mere expression of support for peaceful actions is not sedition. It is not sedition when the reporter has no intention to cause such violence. Designed by the Information Services Department Printed by the Printing Department Hong Kong Special Administrative Region Government