At a glance:  This session addressed the issue of balancing national security and freedom of the press, national security legislation in Hong Kong (Article 23), and the deepening problem of a proliferation of restrictions on the press and free speech throughout Southeast Asia.  Jennifer Robinson, the Legal Director for the Bertha Foundation and legal adviser to Wikileaks, described the US government cases against Julian Assange and Bradley Manning. “Free speech rights apply to publishers, which is what Wikileaks is,” she said.  “The principles of going after Wikileaks are the same as those that would be used to go after the New York Times.”  Robinson said it was “chilling” that the New York Times now had a practice of showing the government what it was going to publish because it didn’t want to be sued.  Others in the conference didn’t fully agree, saying that national security concerns needed to be balanced with free speech and that responsible journalism sometimes required consulting with the government.

Panel F: Speech Crimes and National Security (75 min, 15 min Q&A)
Moderator: Prof. Simon Young, Centre for Comparative and Public Law, HKU
Speakers: Lord Lester of Herne Hill QC
Mr. Malik Imtiaz Sarwar (Human rights lawyer, Malaysia; former president, Malaysian National Human Rights Society)
Hon. Mr. Dennis Kwok (Legislative Council, Hong Kong on Article 23)
Mr. M. Ravi (Singapore human rights lawyer)
Ms Jennifer Robinson (Director of Legal Advocacy, Bertha Foundation, counsel to Wikileaks)

Panel F dealt with speech crimes, particularly in the context of national security. As moderator for the panel, Professor Simon Young underscored the importance of clarity and bright-lines in defining criminal liability in speech crimes, as well as in establishing safeguards and protection for the media, as opposed to ad hoc balancing.  Likewise, any public interest defence for criminal liability should be spelled out clearly; otherwise there could well still be a chilling effect on free speech.

Lord Lester initiated the discussion by tracing the origins of common law speech crimes, which tend to be overbroad, vague, unnecessary and an infringement to free speech, to their inception for the purpose of protecting public order in British colonies.  While the UK has abolished common law speech crimes, including obscene libel, criminal seditious libel, blasphemous libel as well as the offence of scandalizing the court, more controversial are criminal sanctions for race-related, homophobic and religious hate speech, which are too strict in Lord Lester’s opinion.  He said that criminal law cannot be an effective means to counter racist and homophobic speech save in exceptional circumstances, observing that the best remedy for evil speech is not less speech, but more speech.

In examining Hong Kong’s constitutional obligation to enact national security laws under Article 23 of the Basic Law and the city’s resistance to the government’s proposal of anti-subversion legislation ten years ago, the Hon. Dennis Kwok analyzed the precise wording of Article 23 and observed that it was the intention of the drafters of the Basic Law to allow Hong Kong people to decide when and how to enact national security legislation.  Kwok also remarked that national security laws are already covered under the existing body of law in Hong Kong.  Professor Young also pointed out that Article 23 in fact presents an opportunity to modernize and abolish the present legislation, which are archaic and unnecessary, such as common law speech crimes.

In light of the extremely volatile political climate in Hong Kong and frequent stalemates owing to the composition of the Legislative Council, the current administration hardly has the political capital to resume such proposals.  It is foreseeable that Article 23 will continue to be put on hold until democratic reforms are introduced both in the legislative and the executive arms of the government.

In her presentation, Jennifer Robinson focused on the leak of national security information and criminalization of the publication of such information.   The prosecution of Wikileaks, which is the first case where a publisher is subject of a Grand Jury investigation in the US for the publication information pertaining to national security, raised fundamental issues of free speech.  Cases such as the Pentagon Papers case and United States v. Rosen (2006) left open the possibility that publisher of national security information could face criminal prosecution, generating a chilling impact on free speech.

She also questioned the propriety of New York Times’ practice of letting government officials to review embassy cables which the newspaper planned to post prior to its publication.  In contrast, Rob Balin regarded such practices as a way through which newspapers may engage in responsible journalism, by exercise editorial judgment upon garnering the government’s view of such materials.

Robinson also criticized the Espionage Act (1917) as a piece of archaic legislation, not least by its failure to include a public interest exception to the Act. Recent cases of John Kiriakou and Bradley Mannings epitomized the harshness of strict liability under the offence, such that the intent of the defendant to harm the interest of the US and whether actual harm has been caused to the country were irrelevant.  It is foreseeable that Edward Snowden would be subject to the same standards should he face trial in the US.

Meanwhile, Lord Lester recognized that free speech and national security concerns should be carefully balanced in line with principles of certainty and proportionality.  Under the Official Secrets Act of 1989 in the UK, national security is construed as narrow as possible in compliance with the European Convention of Human Rights.  He stressed his confidence in English judges to be careful in scrutinizing restrictions invoked in the name of national security.

M Ravi gave an overview of the barriers to free speech in Singapore, including the well-known tendency of the Singaporean leadership to sue political opponents in defamation suits resulting in their bankruptcies, a tactic effectively barring opponents from running in elections.  Ravi invited the audience to consider the recent phenomenon of public bodies suing private citizens in defamation, as well as alluding to the well-known contempt of court case of Allan Shadrake, in which the Court of Appeal, despite affirming Shadrake’s conviction, had overturned decades of jurisprudence and shifted to the real-risk test in requiring the prosecution to show there must be more than a remote possibility that the statements complained of would undermine the administration of justice.

Ravi invited the audience to consider the recent phenomenon of public bodies suing private citizens in defamation.  One of his clients was recently challenged with defamation by the Singapore’s Council of Private Education (CPE), a statutory board empowered to regulate institutions of private education, for defamatory emails which his client had disseminated to several news organizations.

On the issue of seditious libel, Ravi referred to the criminal proceedings against cartoonist Leslie Chew, whose comics criticized the government’s immigration policies which allegedly discriminated against the ethnic Malay population. Although the initial sedition charges against Chew for promoting ill-will or hatred among races were eventually dropped, he was charged with scandalizing the judiciary for publishing comic strip which reprehended a constitutional challenge in courts.

Noting the fundamental differences in the legal and political landscapes between the West and Southeast Asia, Malik Sarwar pinpointed at the desire of Southeast Asian governments to maintain power despite the lack of a popular mandate through the enactment and maintenance of penal laws that stifle free speech.  The enactment, modification and interpretation of laws are key ways by which despotic regimes suppress dissent under the veneer of legitimacy.  Among the plethora of speech crimes in Malaysia, Sarwar highlighted a new security offence targeted at activities detrimental to parliamentary democracy by any “unconstitutional means”, including the solicitation of funds for such activities.  Sawar also highlighted the use of Islamic legislation as a means to stifle or undermine private law, referring to the recent raid by Islamic authorities of Irshad Manji’s book “Allah and Liberty” and prosecution of the manger of a book outlet in Sharia courts.

Sarwar reflected upon the nature of speech crimes in Southeast Asia as essentially a breakdown of democracy, which pertains to a more fundamental struggle with the rule of law as applied by political power, co-opted institutions and the judiciary.   Moreover, the debates over speech crimes and national security in the region are complicated by cultural nuances and the broader Asian values debate.

In contemplating on the possible strategies in this area, Lord Lester urged lawyers not to take the line of least resistance in face of rampant restrictions against free speech, despite greater pressures to conform in the era of mass production and mass information.  Sarwar also stressed the need for heightened scrutiny of national legislation by the press and international organizations such as the International Bar Association, as well as exchanges and collaborations between such institutions with judiciaries in the development of commonly recognized standards.

Presentation by M Ravi

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