An Analysis of the Banning of the Hong Kong National Party and the Legitimate Restrictions on Freedom of Expression
On 24th September 2018, Secretary of Security John Lee issued a ban on the Hong Kong National Party (“the National Party”) under the Societies Ordinance on the basis that the National Party posed a “real threat to national security”. Section 8(1)(a) of the Societies Ordinance states that the Secretary for Security may prohibit the operation of a society “if he reasonably believes that the prohibition of the operation or continued operation of a society or a branch is necessary in the interests of national security or public safety, public order, or the protection of the rights of freedoms of others”. Although the government might not like the ideas promulgated by the National Party, they are an exercise of freedom of expression, and the ban does not meet the requirements of international law.
Freedom of expression is enshrined both in domestic law and international law. On the domestic front, Article 3(5) of the Sino-British Joint Declaration guarantees the “rights and freedoms, including those of the person, of speech, of the press”, and Article 27 of the Basic Law protects the “freedom of speech, of press and of publication”. According to the European Court of Human Rights in Handyside v United Kingdom, freedom of expression is “applicable not only to information or ideas that are favorably received or regarded as inoffensive, but also to those that offend, shock, or disturb the state”. In Irwin Toy v Quebec (Attorney General), the Canadian court stated that “all expressions of heart and mind, however unpopular, distasteful or contrary to the mainstream” are protected. Although Hong Kong and China are not bound by definitions established by foreign jurisdictions, it is notable that China and many European countries have ratified the Universal Declaration of Human Rights (“the Declaration”). The Declaration is a set of fundamental principles shared by all signatories and as such, international definitions of fundamental values held by signatories of the Declaration such as the doctrine of freedom of expression should hold persuasive value. Accordingly, offensive, shocking, or disturbing ideas are all protected by the doctrine of freedom of expression. The premature banning of the National Party is a violation of the internationally held definitions of freedom of expression given that the doctrine nonetheless applies to offensive, shocking, and disturbing ideas.
An analysis of the Johannesburg Principles on National Security, Freedom of Express and Access to Information by ARTICLE 19 shows the requirements for the legitimate restrictions on freedom of expression, and further fuels speculation that the ban of the National Party was premature. Principle 6 states that “expression may be punished as a threat to national security only if a government can demonstrate that (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.” Currently, there has been no evidence released by the government that the National Party incited violence, nor has there been evidence that there is an immediate connection between speeches given by the National Party and the likelihood of violence.
According to the Basic Law, it is unconstitutional to advocate for independence. Although right now the National Party does not appear to have incited imminent violence, it is important to note that once the National Party or anyone associated with the Party uses expression that incites imminent violence and it is likely for such violence to ensue, it would be both legal and legitimate for the government to ban the National Party under the Societies Ordinance.