Hong Kong is today a less free place as a result of the Court of Final Appeal's ruling in the flag desecration case.
In a poorly reasoned judgment the Court held that the laws criminalising flag desecration are necessary because of the important aim of protecting the flags as unique symbols. Elsewhere in its judgment the court states that "necessary" should be given its ordinary meaning, yet in the key passage of his reasoning the Chief Justice appears to confuse "necessary" with "desirable". The judgment does not address the fact that the freedom being limited by these laws was a freedom which existed and was often exercised before the transfer of sovereignty.
The judgment gives cause for grave concern as to the future of freedom in Hong Kong. A traditional form of protest, used many times during the 1990's, has now been outlawed. Mr Ng and Mr Lee, dissidents to the Chinese and Hong Kong authorities who have expressed their political opposition by using desecrated flags, have now been labelled as criminals. They have committed a crime of conscience.
In sharp contrast to its judgment in January this year in which the Court of Final Appeal placed great value on protecting the rights of the individual against the violations by the state, this judgment has placed heavy emphasis on national unity and territorial integrity. Human Rights Monitor does not say that national unity and territorial integrity are unimportant. However, their protection does not necessitate criminalization of peaceful flag desecration as a form of expression in a free and democratic society. The essence of a free and democratic society is pluralism and tolerance. Regrettably the Court of Final Appeal has become receptive to the intolerant and narrowed-minded attitude promoted by the Government. People came before it in the believe that the court is the guardian of liberty but were disappointed to find it yet another part of the ruling machinery which considers it appropriate to penalize peaceful expression in the name of national unity and territorial integrity.
The reaction of the Court of Final Appeal in the present case and in the right of abode decision this month show that the court is no longer prepared to make findings against the Government in important cases with political overtones. This is a giant step towards the Singaporisation of the Hong Kong judiciary.
The authorities should find the judgment encouraging in assaulting on freedom for administrative convenience and their political ends when the court became less rights conscious and has adopted such a loose standard in applying the concept of necessity on actual situation. Therefore similar assault on freedom will not stop here. This is particularly unfortunate when Article 23 legislation are pending. Article 23 requires Hong Kong to legislate to prohibit treason, sedition, secession and subversion. The court has opened the floodgate to restrictive Draconian provisions in those legislation. The judgment will also be relied upon for years by the government to justify restrictions of rights.
Some commentators have suggested that the court has avoided a constitutional crisis by making this decision. This view highlights a serious concern: The court is no longer adjudicating its cases without fear and favour. Under our new constitutional order, whenever it considers the possibility of a ruling against the government, it has something to fear: the possible humiliation resulting in another reinterpretation the Standing Committee of the National People's Congress (the national parliament). This means that in future the court will always avoid "constitutional crisis" by finding for the Government and progressively restricting freedom.
With the supreme unlimited power of interpretation vested in the Standing Committee and the stipulation that our court has to follow all interpretations by the Standing Committee, Hong Kong courts are placed in a difficult position in all cases of politically significance against the Government. The courts may exercise self-discipline by ruling in favour of the Government or the authorities may reverse the court's decisions by appealing for a reinterpretation. In either case independence of the courts will just be wishful thinking.
1999 (c) Hong Kong Human Rights Monitor
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