The Uncommon Law in the Hong Kong SAR: The Shifting Norms of Press Freedom under the National Security Law

Abstract

Few legal expressions have ever caught the public attention and imagination of Hong Kong people as has the English common law. By common law, this study refers not only to the formalistic aspect of judge-made law and the system of binding precedent, but the entire legal and judicial system, including what were perceived to be the values and procedures of the English legal legacy. Equally important for the thriving of this liberal but non-democratic city is freedom of the press.

Expectedly, the continued survival of the common law and press freedom become one of the litmus tests for the success of the social and political experiment of “one country two systems” when the People’s Republic China (PRC) resumed its sovereignty over Hong Kong from the British colonial ruler on 1 July 1997. Since then, for more than two decades, Hong Kong Special Administrative Region (HKSAR) had continued to prosper as a capitalist city, an international financial center, and a vibrant media hub enjoying much political freedom. However, in 2022, according to the World Press Freedom Index, Hong Kong was ranked 148th out of 180 regions, a sharp fall from 18th place in 2002. Some attributed the decline of press freedom to the National Security Law (NSL) , enacted on 30 June 2020 by the PRC Government to be directly applicable to Hong Kong. Indeed, the NSL provides a critical intersecting point for us to examine the continued operation of the one country two systems model.

Other than analysing the legal provisions of the NSL and the judicial interpretation of relevant cases affecting the media, the study of press freedom in the HKSAR must be examined in the larger national security roadmap of the PRC. This chapter argues that the enactment of NSL on 30 June 2020 signifies an important milestone in the development of the “uncommon” law in the HKSAR: a move towards a system of common law with Chinese characteristics and rendering the common law operating in the HKSAR becoming uncommon among other common law jurisdictions in democratic societies.