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Thursday, May 03, 2018, 00:14
Freedom of speech is not an absolute right
By Chan Tak-leung
Thursday, May 03, 2018, 00:14 By Chan Tak-leung

Chan Tak-leung urges HK activists to consider that duties and responsibilities come with this privilege to speak their minds.

Pro-independence remarks expressed by Benny Tai Yiu-ting, an associate professor of law at the University of Hong Kong, in Taiwan last month were strongly criticized from all sides despite Tai himself saying his remarks were made in an “academic context”.  Tai went on to assert that his comments were purely “hypothetical” and he was not advocating independence for the Hong Kong Special Administrative Region.

Let’s examine the facts. 

To begin with, since his host was none other than the Taiwan Youth Anti-Communism Corps, it was pretty obvious from the inconsistence of his contorted explanations that the so-called hypothetical comments he made were definitely aimed to appease his audience’s anti-communism stance and not for any academic purpose. Putting forward a scenario that Hong Kong might need to consider its “future sovereignty”, one would suggest, is definitely crossing a red line of free speech. 

Secondly, Tai knew full well that since he was in Taiwan when he made his anti-communism utterance, he will be beyond any legal redress. As a result, although his comments might sound far-fetched and subversive, he has every right to say whatever he likes against the central government without retribution even if his words might have the hallmarks of promoting independence, self-determination and departure from the “one country, two systems” principle.

Tai might have convinced himself that he articulated assumptions rather than facts but his self-delusional utterances have nonetheless nullified all the historical and factual realities presented in the “one country, two systems” principle. Perhaps he might think he was sharing his thoughts in the confines of an ivory tower and the audience in front of him were his students. Critics strongly argued that in order to deter similar reckless and irresponsible acts from happening again, there is an urgent need to consider enactment of national security legislation in line with Article 23 in the Basic Law of the SAR.

Tai’s supporters have responded by claiming he has every right to speak freely. The professor himself also responded to the “accusations” by saying his accusers were making an example of him to limit freedom of speech. Others also claimed that he cannot be prosecuted under the SAR’s current Crimes Ordinance. So all in all — Tai did not commit a crime. In the meantime, the debate on how to handle the fallout from Tai’s comments and diverse observations of the incident rumble on unabated.

It is true that all SAR residents, Tai included, are entitled to have their freedom of speech and other freedoms as guaranteed under Article 27 of the Basic Law. However to say China might not be the sovereign state of the SAR under the “one country, two systems” principle, and the SAR’s residents might want to consider being part of a totally fictitious new state or new society, is fanciful and irresponsible to say the least and certainly shows manipulative and sinister intentions.

Besides Tai’s recent antics, a number of “pan-democratic” legislators as well as other “pro-democracy” and pro-independence activists have also been attempting to associate themselves with third parties such as the United States and United Kingdom to raise their anti-China stance, believing legislators from these nations will stand up for their freedom of speech and democratic rights.

Freedom of speech is indeed guaranteed in these nations under the First Amendment to the Constitution of the United States and Article 10 of the European Convention on Human Rights for the UK. There are, however, exceptions such as incitement, false statements of facts, obscenity and so on which make the notion of absolute freedom of speech a fallacy.

As far as the European Convention on Human Rights which governs the freedom of expression in the UK is concerned such freedom also carries “duties and responsibilities”, especially in the interests of national security and territorial integrity. One believes it is time now for academics like Tai and other “pan-democratic” activists to consider the reality of exercising their freedom of speech in the SAR. They should also examine and observe these duties and responsibilities closely, with or without the enactment of legislation under Article 23.

The author is the director of the Chinese in Britain Forum. He was the first-ever Chinese British citizen to be elected mayor of the Greater London Borough of Redbridge (2009-10) and served as a member of the city council for over 10 years.

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