For a fairly depressing experience, try reading the Court of Final Appeal’s decision on the question whether it is acceptable for the government to make it a crime to encourage people not to vote. Of course it is all right. This does not come as a surprise. As Alexander Pope put it, “Blessed are the pessimists, for they shall never be disappointed.” The judges’ conclusions lived down to expectations.
Well I do not propose a critique of the decision. This would be pointless. The law is, in the end, whatever judges decide it is.
The interesting thing about the judgment written by Chief Justice Andrew Cheung, and unanimously endorsed by his colleagues, was what was said, or implied, about what you might call the surrounding area. Granted that the restriction on advocating election boycotts was an acceptable restriction on freedom of speech, what areas are we left with?
Consider, for example, a generalisation during what you might call the warm-up phase: “Debate and discussion during an election period concerning whether to vote, for whom to vote, and whether the election is being conducted openly, fairly and honestly are plainly matters of importance.”
May we deduce from this that having allowed the government to curtail discussion of whether to vote, judges will in future defend the right to discuss whom to vote for, and whether the election is open, fair and honest?
There are, I think we can infer from the turnout in the last district polls, among us some deluded citizens who think the elections were neither open nor fair, and as that is the case the question of honesty does not really arise. They may think that the electoral system merely pastes a rather ineffective figleaf over an entirely predictable exercise of China’s undisputable and unlimited sovereignty, that a Chief Executive “election” with only one candidate lacks a certain je ne sais quoi in democratic respectability
But if one of these unfortunate people were to express this view in a public forum, what would happen? Our government’s reaction to public criticism of any kind, even from its most dogged supporters, tends to fall in the range between tetchy and outraged.
It also appears that with so many recycled police people in the administration, the reaction to opposition is like that of the man with a hammer to whom every problem looks like a nail. Ungrateful people and organisations should be arrested and charged. If there is no convenient law permitting this we should explore the uses that can be made of inconvenient ones, so independent bookshops get raided, independent news outlets get tax demands, independent restaurants are inspected…
This seems a long way from the world inhabited by Chief Justice Cheung, who observes that the law on boycott calls “is confined to the election period and to acts of public incitement. At other times and on other occasions, the right to freedom of expression remains unaffected.”
Does it indeed? I suppose private incitement enjoys a certain amount of freedom because it is private. As the old Lancashire saying has it, “what the eye doesn’t see the heart doesn’t grieve over.” As a potential practitioner of public incitement, though, I remain unconvinced by the time limit. Would 1,000 words on the deficiencies of Hong Kong elections under the current system pass unnoticed if published outside the election period? Would it make any difference if they were in Chinese? Would it make any difference if they had been written by some reviled target figure like Ted Hui?
Far be it from me to suggest that the Court of Final Appeal has erred. It is difficult though to acquit the court of the charge of complacency. Freedom of expression is an endangered species and it would be nice to think judges would protect it. Perhaps this was not a suitable case for a demonstration of judicial zeal for the defence of an important human right. Perhaps there will never be a suitable case…
tim's experiment 