ROLE Essay Competition 2019 English Group Second Runner-up
Freedom of expression and rule of law
It has been becoming more and more common to hear Hong Kong citizens claiming that, under the interference of the Hong Kong Special Administrative Region (HKSAR) Government and possibly the Central People’s Government, the freedom of expression has been shrinking. According to the “CUHK Quality of Life Index” report issued in July 2019, the “freedom of speech” index has declined from 4.50 in 2008 to only 3.90 in 2018. Such a notion and figure have also led some to doubt whether ‘rule of law’ is under threat in Hong Kong.
The ‘rule of law’ and ‘freedom of expression’ are what considered by Hong Kong citizens, then and now, as ‘core values’ and the foundation of the success in Hong Kong. However, it has been observed that some understand the concept of ‘rule of law’ as a system just for maintaining social order, and hence ‘rule of law’ contradicts with ‘freedom of expression’. The aforementioned understanding of ‘rule of law’ is erroneous. Suppose that the notion is correct, then everyone shall consider the society back in Qin dynasty, under the rule of the tyrannical emperor Qin Shi Huang, one that accords with ‘rule of law’ since the aim of implementing law back then was simply for maintaining social order.
The Qin society did not totally violate ‘rule of law’ but it only fulfills the bottom two layers of the rule of law pyramid suggested by Professor Benny Tai Yiu-ting, i.e. “there are laws to abide” and “the law must be strictly enforced”. In short, ‘rule of law’ per se does not only mean obeying rules for achieving a stable society, but also protecting the rights enjoyed by members of society. Thus, under the common law system adopted by Hong Kong since the British colonization and the Basic Law, the ultimate goal of exercising ‘rule of law’ is to protect individual’s right to the greatest extent and at the same time, maintaining social order through ordinances which every member, regardless of status, has to obey.
Since June 2019, the anti-extradition movement has sparked discussions among Hong Kong citizens on whether the freedom of expression is seriously hindered by regulations. It has been prevalently seen that the Hong Kong Police Force (HKPF) constantly refuse to issue a ‘letter of no objection’ for processions to be conducted. From the perspective of the HKPF, it is their right to not issue the ‘letter of no objection’ as protests often end catastrophically. The Force, as the law-executing party, believes that the aim of implementing ‘rule of law’ is to maintain social order, and therefore it is the correct choice to limit ‘freedom of expression’ through the right granted by the law.
On the contrary, protestors hold a distinctively different point of view towards the concept of ‘rule of law’ and ‘freedom of expression’. As mentioned before, the aim for exercising ‘rule of law’ is to protect individual rights while maintaining social order. Protestors think that their ‘freedom of expression’ shall be comprehensively protected as such is what clearly stated in Article 27 of the Basic Law. As the HKPF comprehends ‘freedom of expression’ as assaulting ‘rule of law’ since it might cause social disharmony, protestors understand ‘rule of law’ as a system which protects their ‘freedom of expression’. The above contradiction in views has attributed to the widespread discontent about the HKPF and the HKSAR government.
While some might ask for an absolute answer to whether the HKPF or the protestors hold the correct understanding of the concept of ‘rule of law’, it is fair to say that the comprehension of the concept by both parties is correct. It is worth emphasizing that both ‘maintaining social order’ and ‘freedom of expression’ are important parts under the system of ‘rule of law’. The two have to co-exist in order to illuminate the ultimate aim of exercising ‘rule of law’. Therefore, it is not worth for society to choose between ‘maintaining social order’ and ‘freedom of expression’, but rather focus on achieving consensus on weighing the relative importance of the two.
The key to success in implementation of ‘rule of law’ is balance. Well-known to the world as the ‘principle of proportionality’, the English common law system has aimed to strike a balance between social stability and freedom of expression. One could freely express his or her dissatisfaction towards the government in almost any means unless such means have reached the ‘bottom line’. For instance, going on strike to express resentment to the government is acceptable, but killing an official or proposing independence is not. To summarize, freedom of expression and rule of law are definitely not mutually exclusive. That is to say, the two ‘core values’ do not contradict with one another. It is rather the balance of the two which shall be focused on.