Constitutional Victory for Flag-Burning Case
23 March 1999
Human Rights Monitor welcomes the approach taken by the Court of Appeal. Indeed, the peaceful expression of views should be protected. Article 39 of the Basic Law specifically provides that the specific conventions "shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region", and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) specifically provides that everyone "shall have the right to freedom of expressioníK..through any other media of his choice." These rights could only be derogated in certain circumstances. This is only for "respect of rights or reputations of others", and "for the protection of national security or of public order, or of public health or morals". At no time was public order threatened during the peaceful demonstration. When deciding whether section 7 of the Flags Ordinances were indeed necessary, it was felt that the sections did not comply with the ICCPR, and indeed the reason of "public order" could not be used since there was no evidence in the case to suggest that there was an imminent or indeed a threat of possible violence. The freedom of expression of individuals should be protected. This means that this wide ranging section which could possibly encompass the freedom of artistic expression, could be under threat should this section prevail. Indeed in other jurisdictions such as the States, flag burning is seen to constitute a clear form of lawful expression and judicial scrutiny has resulted in statutes being declared unconstitutional without exception for being in breach of freedom of expression. Indeed, no other European Union member country has similar flag legislation, and we are pleased that the Court of Appeal today has accepted that section 7 of the Flags Ordinances was not a "necessary" piece of legislation.
Human Rights Monitor also applauds the court's decision to take into account the words of Chief Justice, Mr. Justice Li in the Ng Ka Ling case, where he said that the Basic Law is an entrenched constitutional instrument, and that "We must begin by recognizing and appreciating the character of the document. The Basic Law is an entrenched constitutional instrument to implement the unique principle of "one country, two systems". As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances. We are pleased that the Court of Appeal is willing to adopt this open-minded approach in deciding cases. We hope that they will continue to act as the protectors of rights and be the protectors of the rule of law and not be subject to "open pressures of influences".