The Courts in Shackles: Freedom of Speech in the Era of National Security in Hong Kong

Hong Kong was once dubbed 'the city of protest', a seemingly derogatory description that actually highlights the vibrancy and vocality of this small international city. However, as the usually peaceful and orderly protests and demonstrations gradually degenerated into riots, arson, and criminal damage during the Anti-Extradition Protests in 2019, the Central People's Government perceived a severe national security loophole in Hong Kong. In response, it swiftly imposed the highly controversial Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, in the absence of any sort of meaningful public consultation. International academic discourse often argues that the National Security Law has significantly restricted, if not entirely suffocated, freedom of expression in Hong Kong. This article acknowledges that freedom of expression in Hong Kong is indeed constrained within its social, political, and cultural context; however, it also seeks to explore how the courts in Hong Kong, often regarded as defenders of human rights and freedoms in the region, work to protect freedom of expression from being unduly curtailed under the guise of national security. Motivated by a strong interest in investigating the role of the Judiciary of Hong Kong, this article, after defining the meaning of freedom of speech in Hong Kong, examines several landmark cases in Hong Kong that involve the delicate balance between national security and freedom of expression. The central argument is that despite the restrictions imposed by the Law, the Hong Kong courts, now dancing with shackles, have endeavoured to use their judicial vehicles to safeguard freedom of speech. While the judicial approach adopted by the Hong Kong courts may not be as robust and straightforward as various interested parties in Hong Kong and in the international world would prefer; the strength and scope of protection of freedom of speech in Hong Kong has strengthened since the enactment of Bill of Rights Ordinance domesticated the International Covenant on Civil and Political Rights, and has remained so in the pre-National Security Law era. Although the leeway for free speech has narrowed in the post-National Security Law era, such protection still surpasses that of Hong Kong's early colonial days before the Bill of Rights Ordinance was enacted and essentially remains consistent with the new constitutional order of Hong Kong. The Hong Kong courts can always be seen as dedicated guardians of freedom of expression within the domestic context and should be trusted as such. © 2024 Walter de Gruyter GmbH, Berlin/Boston.