19 July 2019
With the government and the pro-Beijing camp taking exception to some comments made by Prof. Benny Tai in relation to Hong Kong independence, ‘free speech’ issue has again come to the fore in the city. Photo: HKEJ
With the government and the pro-Beijing camp taking exception to some comments made by Prof. Benny Tai in relation to Hong Kong independence, ‘free speech’ issue has again come to the fore in the city. Photo: HKEJ

Don’t curb free speech in the name of national security

Recently Professor Benny Tai Yiu-ting of Hong Kong University came under enormous fire from the pro-establishment camp, the pro-Beijing media and the Hong Kong government for some remarks he made at a Taiwan forum last month on the prospects for Hong Kong independence.

In my opinion, I think it is very inappropriate for the government to lash out at Professor Tai for his comments.

Unlike the average individual, who is entitled to complete freedom of speech, authorities have to choose their words and actions carefully.

If they don’t exercise restraint and act according to the law when weighing in on social issues, they will expose themselves to the charge of trying to undermine the rights and civil liberties of citizens, whether in practice or in public perception.

In the meantime, the relentless bombardment against Tai on the grounds that his independence remarks threaten “national security” has raised grave public concern about the exact definition of national security.

Given the fact that the authorities have a lot of executive power at their disposal when it comes to “upholding” national security, I believe it is very important for the government to promptly clarify and define the exact meaning of “national security” and, in particular, “threats to national security”.

If not, there would be no protection for our civil rights whatsoever.

At present, two sets of principles — the Siracusa Principles and the Johannesburg Principles — have been widely adopted by the international community as the principal guidelines in defining “national security” and deciding what constitutes “a threat to national security”.

The two principles were first proposed and drafted by international experts on national security and human rights, and were intended as a legal and theoretical instrument to interpret the related concepts laid down in the International Covenant on Civil and Political Rights (ICCPR).

The two sets of principles have also been officially accepted by the United Nations Commission on Human Rights.

As the Bill of Rights of Hong Kong has incorporated some of the provisions of the ICCPR into the local law, it is therefore definitely worth referring to the two principles when we are trying to define “national security”.

According to Article 29 of the Siracusa Principles, a government can impose limitations on the exercise of certain civil rights on grounds of “protecting national security” only when it is facing military threat that may endanger the existence, territorial integrity or political sovereignty of the land over which it has jurisdiction.

Meanwhile, Article 6 of the Johannesburg Principles also states that a person or an organization can be regarded as “a threat to national security” only when they are openly advocating or inciting the use of violence to achieve policy or regime change.

And Article 7 has also given some clear examples of what shouldn’t be seen as a threat to national security.

These examples include advocating the use of non-violent means to achieve policy or regime change, criticizing or being contemptuous of the state or its symbol, opposing or inciting others to oppose mandatory conscription or military service based on religious faith or conscience, as well as opposing or inciting others to oppose going to war with other countries.

As we can see, Professor Tai has violated none of these universally accepted principles by remarking on the possibility of Hong Kong’s independence at a public forum.

Freedom of speech is the cornerstone of the success and prosperity of Hong Kong.

Only by allowing the society more space for exchange of different opinions, stances and concepts on various issues can we guarantee that Hong Kong will continue to remain a vibrant and diversified international city in the days ahead.

As such, I hope different sectors of our society will truly treasure our freedoms and stop cracking down on free speech in the name of protecting national security.

This article appeared in the Hong Kong Economic Journal on April 9

Translation by Alan Lee

[Chinese version 中文版]

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Member of Legislative Council (Functional Constituency – Accountancy)

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