Hong Kong should reconsider enacting Article 23 legislation to nip support for independence in the bud

by Eliza Chan/scmp.com

Recently, a radical separatist group led by a former Occupy Central activist held a press conference announcing the formation of a “Hong Kong National Party”. The party aims to promote the independence of Hong Kong and the abolishment of the Basic Law.

As stated in the preamble and Article 1 of the Basic Law, “Hong Kong has been part of China’s territory since ancient times” and is “an inalienable part of the People’s Republic of China”. Article 12 of the Basic Law also provides that Hong Kong is a local administrative region of the People’s Republic of China, “which shall enjoy a high degree of autonomy and come directly under the central people’s government”. Therefore, the proposition made by the radical group is undoubtedly contrary to the spirit enshrined in the Basic Law.

While this is not the first time a group has rejected the fundamental values laid out in the Basic Law, the Hong Kong National Party can be considered a radical group at the extreme end of the political spectrum. Not only has it refused to recognise the Basic Law, it has even pledged to use “whatever effective means” available to break away from the central government.

The recent formation of such a radical group has sparked discussions on whether a group of Hong Kong extremists can challenge China’s sovereignty without any serious legal consequences.

Advocates of Hong Kong independence will not find a strong and infallible defence for their actions by relying on their entitlement to the freedom of expression. There is a general misunderstanding within Hong Kong that freedom of expression allows a person to express his or her opinion without any form of restraint.

Freedom of expression is not an absolute right under the laws of Hong Kong. In fact, it is expressly provided under Article 16(3) of the Hong Kong Bill of Rights Ordinance, which incorporated the International Covenant on Civil and Political Rights into Hong Kong local laws, that states that the exercise of the rights to freedom of expression carries with it special duties and responsibilities. Consequently, it may therefore be subject to certain restrictions, provided by law and which are necessary for the protection of national security, public order (ordre public), or public health and morals.

The Hong Kong Court of Final Appeal has also affirmed in the 1999 case of HKSAR versus Ng Kung Siu & Another (the “Flag Burning Case”) that while freedom of expression is a fundamental freedom which lies at the heart of civil society and of Hong Kong’s fundamental social values, it nonetheless is not an absolute right and its exercise might be subject to restrictions.Read more…

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