|Volume 76||Number 1||Spring 1998|
Cite as 76 Wash. U. L.Q. 113
FRANCES H. FOSTER[*]
In its "mini-constitution" for post-1997 Hong Kong, China seemingly provides sweeping guarantees for Hong Kong's future under Chinese sovereignty. Under the banner of "one country, two systems," China's Basic Law of the Hong Kong Special Administrative Region ("HKSAR") of the People's Republic of China ("Basic Law") promises to preserve Hong Kong's "previous capitalist system and way of life . . . unchanged for 50 years." It grants Hong Kong a "high degree of autonomy." It pledges to maintain Hong Kong's "common law" legal system, "right of private ownership of property" and a panoply of political and civil rights currently not afforded China's own citizens.
In the final months before the July 1, 1997 handover, however, statements by Chinese leaders suggested that China did not intend to honor these "promises" to Hong Kong. Restrictive Chinese interpretations of one Basic Law provision--article 27's broad guarantee that "Hong Kong residents shall have freedom . . . of the press"--created serious concerns regarding the meaning of post-1997 Hong Kong's "mini-constitution" as a whole.
Many Hong Kong and Western observers read these statements as a signal that China plans to ignore the Basic Law and rely on political and military power. In an earlier article, I argued that China has no need to do so. Textual analysis of Hong Kong's two founding legal documents, the Sino-British Joint Declaration and the Basic Law, reveals that China's oft-cited "promises" are essentially meaningless. These guarantees are framed in such vague and indeterminate language that they provide no real constraint on Chinese action in the post-1997 era. Hong Kong's "mini-constitution" effectively gives China the authority to interpret its own "promises." Thus, China, not Hong Kong or the West, will be the ultimate arbiter of Hong Kong's freedoms.
This does not necessarily mean that China will act arbitrarily without regard for its obligations under the Joint Declaration and the Basic Law. In recent years, China has made a point of using legal arguments and texts to justify its actions. Even a body whose interpretation is final--the U.S. Supreme Court, for example--must articulate a method to explain and legitimize its interpretation. The issue, then, is how China will exercise its virtually absolute power of interpretation. Specifically, where will it look for definition of Basic Law guarantees, such as "freedom of the press?" Neither the Joint Declaration nor the Basic Law provides any answers to these critical questions.
Indeterminate constitutional text and its potential dangers are familiar to all legal systems, including our own. Constitutional guarantees of "freedom of the press" have proven especially malleable worldwide. In the United States, as elsewhere, definitions and boundaries of press freedom have shifted considerably over time to accommodate national emergencies, changing standards of morality and fairness, technological advances, and the like. In the process of application, the term has acquired such new and diverse meanings that currently there exists little consensus in the United States as to what precisely constitutes freedom of the press.
A perennial question in our own legal system, then, is how to ascertain the meaning of indeterminate constitutional language. What techniques are employed to resolve contested meaning and to fit text to changing conditions? In this Article, I argue that this same question confronts China today in interpreting the broad guarantees of its "mini-constitution" for Hong Kong. As in the United States, there exists no settled mechanism or approach to give content to these provisions. But, for China, what is at issue is Hong Kong's right to retain its own distinctive definitions of freedom.
This Article explores possible approaches China might use to define Basic Law freedoms for post-1997 Hong Kong. It focuses specifically on the People's Republic of China ("P.R.C.") interpretation of one such freedom--"freedom of the press." Part I identifies and considers six techniques recently proposed by Hong Kong, Chinese, and foreign commentators, which I call the strict literalist approach, the integrated constitution approach, the law on the books approach, the law in action approach, the liberties with Chinese characteristics approach, and the balancing approach. I argue that all six are implausible. They fail to accommodate China's two key goals for the post-1997 era--to maintain its formal commitment to the "one country, two systems" policy and, at the same time, to preserve maximum flexibility to respond to changing needs and circumstances during Hong Kong's fifty-year transition from capitalism to socialism.
Parts II and III present a new framework, drawn from U.S. scholarship on constitutional interpretation. I argue that the metaphor of "translation" best captures China's likely method of interpreting Hong Kong freedoms, including "freedom of the press." Under this translation approach, China will turn to pre-1997 Hong Kong definitions of "freedom of the press" as its base standard and then "translate" them into the new context of a Hong Kong that is now an "inalienable part" of China. As a result, Hong Kong will end up with neither a Western nor a P.R.C. system of press freedom. It will receive what China deems the "equivalent" of the "freedom of the press" it enjoyed before the handover with a few "minor" adjustments to reflect changed conditions in the post-1997 era. The Article concludes with a critical evaluation of China's role as translator of Hong Kong freedom.
Recent literature on Hong Kong suggests six approaches to interpreting China's "freedom of the press" guarantee. Each of these approaches stresses a different definitional point of reference, ranging from the literal language of "freedom of the press" provisions in the Joint Declaration and the Basic Law to general world understandings of the term "freedom of the press." All six proposals are unlikely choices for China, however, because they impede flexible implementation of China's "one country, two systems" policy.
The strict literalist approach defines "freedom of the press" in accordance with the literal wording of the Joint Declaration and Basic Law guarantees found in Paragraph 3(5) and Article 27 respectively. Paragraph 3(5) reads in pertinent part: "Rights and freedoms, including those . . . of the press . . . will be ensured by law in the Hong Kong Special Administrative Region." Article 27 proclaims: "Hong Kong residents shall have freedom . . . of the press and of publication."
Proponents of the strict literalist approach read these texts as mandating absolute freedom of the press. They emphasize that there is "no mention" in either provision of restrictions on media rights: "`No ifs or buts, no qualifications, no phrases in brackets, no footnotes.'" Advocates of the strict literalist approach claim that the language of the Joint Declaration and the Basic Law leaves "`no room for redefining what the pledge mean[t].'" Thus, they conclude that post-1997 Hong Kong press freedom cannot be "qualified in any way" by Chinese law or policy.
The strict literalist approach is the least likely choice for China. Its origins alone make it suspect. It first appeared in British critiques of China's proposed restrictions on post-1997 Hong Kong's civil liberties. Its most vocal proponent is former Hong Kong Governor Christopher Patten, whom China has branded "the sinner of a thousand millennia."
Not surprisingly, China has already explicitly rejected the strict literalist approach. It contends that this approach distorts the meaning of its Joint Declaration and Basic Law "freedom of the press" guarantees by taking this language out of the context of the document as a whole. It also argues that by requiring absolute "freedom of the press," the strict literalist approach contradicts existing Hong Kong legislation and foreign experience. Most offensive to China is the symbolism of this approach. In theory, the strict literalist approach limits P.R.C. regulatory authority in an "inalienable part" of its own country. It thus intrudes on Chinese national sovereignty, a point of considerable sensitivity to the Beijing government.
Critics of the strict literalist approach have missed its greatest drawback, however. It confines definition to texts that are fundamentally flawed. As I have discussed elsewhere, close examination of the two "freedom of the press" provisions reveals serious discrepancies between Chinese and English-language texts, translation problems, and ambiguities. This textual analysis suggests that the language of the Joint Declaration and Basic Law "freedom of the press" guarantees may not in fact have the absolutist meaning proponents claim for them or, for that matter, any meaning at all. As a result, a strict literalist approach to "freedom of the press" ultimately meets no one's needs. It does not provide an effective technique for defining indeterminate statutory language nor does it offer any real check on Chinese power to restrict Hong Kong media rights.
The integrated constitution approach calls upon China to read meaning from the context of the document as a whole. Proponents of this approach make Hong Kong's "mini-constitution," the Basic Law, the primary source of definition. They argue that the starting point for any definition of "freedom of the press" is a "complete understanding" of the Basic Law. They claim that the Basic Law is an "integrated constitution" that consists of "articles providing freedoms and others setting out duties and responsibilities." They regard these articles as mutually complementary. Thus, "[o]nly those who accept the constraints of the Basic Law can enjoy the freedoms provided by the Basic Law."
Under this view, China's Basic Law pledge of "freedom of the press" "encompass[es] two aspects"--rights and duties. Accordingly, in defining the term, China should not consider article 27's "freedom of the press" guarantee in isolation. It should also take into account the "complementary" Basic Law articles that narrow the parameters of that freedom. Supporters of the integrated constitution approach commonly cite four such articles--the preamble and articles 1, 18, and 23.
The Basic Law's preamble and article 1 set out the overarching principles that confine media and other civil liberties--"the need to `uphold national unity and territorial integrity'" and Hong Kong's status as "an inalienable part of the People's Republic of China." Articles 18 and 23 provide the basis for Chinese and Hong Kong legal restrictions on press activities. Article 18 grants the P.R.C. legislature power to extend mainland laws into Hong Kong, including unilateral authority to declare a "state of war" or "state of emergency" "by reason of turmoil." Article 23 specifically directs the post-handover Hong Kong government to "enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets. . . ." Supporters of the integrated constitution approach thus conclude that when the Basic Law is considered in its entirety the real meaning of "freedom of press" emerges: "After July 1, 1997, Hong Kong people still can fully enjoy . . . freedom of press" as well as freedom of speech and freedom of publication. "But all of these rights must be within the scope of the law."
The integrated constitution approach originated as a critique of and alternative to the strict literalist approach. Yet, ironically, it shares the same fatal flaw. It relies exclusively on a text that provides no concrete guidance for future definition of problematic terms. This proposal essentially is circular. The integrated constitution approach refers China to a document riddled with ambiguities and gaps that itself depends on future interpretation to give it meaning. Thus, the integrated constitution approach also is not a viable interpretative technique for China.
The law on the books approach preserves the meaning of "freedom of the press" as codified in pre-1997 Hong Kong legislation. Proponents of this approach claim that pre-handover laws define "freedom of the press" in relative, not absolute, terms. They emphasize that British Hong Kong statutes feature extensive controls on media access to and dissemination of information. These include sweeping censorship regulations and a wide range of criminal and administrative sanctions for publication of material that incites rebellion or hatred, undermines national security, law and order, or harms public health or morality.
Proponents of the law on the books approach also contend that these pre-handover laws supply definition of terms and concepts not covered fully in the Basic Law. For example, when Chinese officials announced in 1996 that Hong Kong's "freedom of the press" would extend to "reporting" but not "advocacy" of Hong Kong or Taiwan independence, supporters of this position turned to pre-1997 statutes for guidance. They found "no lack of the concept of `advocacy' in the laws previously in force in Hong Kong." In particular, they cited Hong Kong's Film Censorship Ordinance, which "dr[ew] a clear distinction between reporting and advocacy" and stipulated "that from its theme and title to its method of description and wording, a film must not promote, advocate, incite, or encourage crime, violence, or drug abuse."
The strength of the law on the books approach is its apparent consistency with China's "one country, two systems" policy. By using existing Hong Kong, not P.R.C., legislation as its focal point, it lends support to China's longstanding claim that this policy is not a P.R.C. "scheme or intrigue . . . [but] respects fully the historical background and reality of Hong Kong." In so doing, it also underscores China's commitment to fulfilling its Joint Declaration and Basic Law pledges to define human rights, including "freedom of the press," in accordance with the laws previously in force in Hong Kong.
The law on the books approach has two significant flaws, however. First, due to ambiguous Joint Declaration and Basic Law language, it is unclear what precisely constitutes Hong Kong's "law on the books." Both documents contain sweeping guarantees that Hong Kong's "laws previously in force" and "laws currently in force" shall remain effective in the post-1997 era. They fail to provide any definition, however, of the temporal markers "previously" and "currently." The result is three plausible and competing interpretations of this language--Hong Kong legislation enacted prior to (1) the Joint Declaration (1984); (2) the Basic Law (1990); or (3) the handover (1997).
The choice of freeze date has important implications for Hong Kong's media. In the final decade before the handover, British Hong Kong authorities enacted a substantial body of new legislation, most notably a Bill of Rights Ordinance codifying expansive rights of expression and information. They also repealed or amended several outdated colonial-era restrictions on civil liberties, including media rights, that had not been applied in practice for years. Thus, a freeze date of June 30, 1997 effectively would exclude many of the provisions now cited by law on the books approach proponents as limits on "freedom of the press."
Second, the law on the books approach locks China into definitions that will rapidly become obsolete. In the early years of the transition, pre-handover legislation may indeed serve as a useful reference for resolving Basic Law gaps and ambiguities. Over time, however, these laws increasingly will become irrelevant, more historical artifacts of the British colonial era than practical guides for Chinese interpretation. Thus, by directing China to pre-handover laws only, the law on the books approach fails to meet China's future needs. It provides no meaningful technique or source to address the new, unanticipated problems that only will emerge in the process of implementing the "one country, two systems" policy. This lack of flexibility makes the law on the books approach too an unlikely candidate for Chinese adoption.
The law in action approach defines "freedom of the press" in accordance with pre-1997 Hong Kong "law in action" rather than "law on the books." Proponents of this approach acknowledge that Hong Kong's official legislation was repressive, even "draconian." They emphasize, however, that actual practice diverged markedly from the written text of these statutes. The law as applied in pre-1997 Hong Kong was tolerant and protective of media rights. Although full-fledged "freedom of the press" had neither constitutional nor statutory guarantee in pre-handover Hong Kong, "it [was] the rule."
Proponents of the law in action approach insist that this "rule" must prevail in the post-1997 era as well to ensure Hong Kong's continued success. They argue that "[p]ress freedom is not only an issue of civil liberties, but also of Hong Kong's economic viability." They claim that expansive media rights is both a product and a mainstay of Hong Kong capitalism. "Freedom of the press" has facilitated the flow of information essential for economic decision-making and successful competition in world markets. A free press has also served as an indispensable check on government corruption and tyranny, thus promoting investor confidence, economic stability, transparency, and predictability. Proponents conclude that Chinese authorities must retain their predecessors' "high threshold of tolerance" for Hong Kong's "effective, independent media corps." Otherwise, Hong Kong as we know it "will be dead."
The law in action approach offers powerful, pragmatic arguments for preserving expansive pre-1997 definitions of "freedom of the press." Proponents realistically assess Hong Kong's value to China as predominantly economic in nature. They recognize that P.R.C. leaders' key policy objective is to sustain Hong Kong's economic prosperity and dynamism in the post-handover era. They frame their defense of "freedom of the press" accordingly as an economic necessity rather than a political ideal. Under the law in action approach, a genuinely free press deserves protection because it is a "pillar" underpinning Hong Kong's economic success.
Despite its merits, the law in action approach is also an unlikely choice for China. It is problematic in several respects. It requires P.R.C. interpreters of Basic Law language to apply a media model antithetical to Chinese ideology and experience. In essence, the Hong Kong model "regards the media, the nation and the government as separate entities." The Chinese model, in sharp contrast, "identifies the government with the nation, puts the highest premium on territorial integrity, and sees the media as one of its integral elements." Chinese leaders have already demonstrated their lack of understanding and appreciation for the Hong Kong model. In at least two instances--press criticism of government and advocacy of Hong Kong independence--the Chinese government has declared Hong Kong media rights subordinate to Chinese national interests. These recent restrictions raise real doubts about the continued viability of a "freedom of the press" definition that exalts media independence as a check on government.
Moreover, Chinese officials have explicitly rejected the idea that a free press is vital to Hong Kong's economic success--the basic premise of the law in action approach. For example, P.R.C. President Jiang Zemin has proclaimed, "Hong Kong's prosperity in the past can not be attributed, as some have suggested, to an independent judiciary and a free system of the press, but mainly to the creativity of the Hong Kong people themselves" and China's own "economic development." Under this interpretation, previous definitions of "freedom of the press" are irrelevant. A sufficient guarantee for future success is to "return Hong Kong to the motherland" and to allow its people to be "masters" of their own country.
The Singapore case adds further support for China's position that "freedom of the press" and economic prosperity are not in fact inextricably linked. Singapore features what the law in action approach declares impossible--a vibrant economy and severe repression of press and other civil liberties. China currently is studying Singapore as a model for P.R.C. information management and control. Thus, Chinese interpreters ultimately may look to Singapore, not pre-handover Hong Kong, for post-1997 definitions of media rights as well.
Like the law on the books approach, the law in action approach also is flawed because it is rooted in the past. It requires China to preserve British colonial-era policy and practice. In so doing, it undermines P.R.C. sovereignty over Hong Kong and restricts its power to adapt law and policy to fit changing conditions in the post-1997 era.
Finally, the law in action approach defines "freedom of the press" in accordance with Hong Kong needs rather than overall Chinese national interests. It largely ignores Hong Kong's new status as an "inalienable part" of China. It assumes that Hong Kong and Chinese interests coincide and that both seek, above all, to maintain Hong Kong's economic vitality. In fact, however, China has other competing interests in Hong Kong that are not as compatible with Hong Kong needs and traditions. Chief among these is to prevent Hong Kong from serving as a "base" of subversion against mainland communist authorities. Thus, Chinese interpreters of Basic Law language will likely reject the law in action approach for a technique that allows them to balance all P.R.C. interests in Hong Kong. Recent events suggest that they may adopt a definition of "freedom of the press" that gives greater weight to Chinese national security than Hong Kong economic prosperity.
The liberties with Chinese characteristics approach argues that "Chinese" definitions of "freedom of the press" are determinative. It emphasizes that Hong Kong is now a part of "one country"--China. It stresses the shared Chinese values and traditions of Hong Kong and the P.R.C., including a "belief in order and stability" and "an emphasis on obligations to the community rather than rights of the individual." It claims that the Hong Kong media system must serve the interests of all Chinese people, not merely Hong Kong residents. This system must uphold "one China" and promote the economic and political welfare of the entire Chinese nation.
Accordingly, the liberties with Chinese characteristics approach confines Hong Kong's "freedom of the press" to "those activities which `a genuine Chinese' would do." It makes "patriotism" the litmus test for appropriate journalistic behavior. It defines patriotism broadly in accordance with Deng Xiaoping's three criteria: "respecting the nation, sincerely supporting the motherland's resumption of the exercise of its sovereignty over Hong Kong, and not undermining Hong Kong's prosperity and stability."
As articulated, the liberties with Chinese characteristics approach offers China flexibility but little else. It provides no concrete guidelines or sources of meaning for interpreting Basic Law provisions. Its advocates propose standards and definitions that are themselves ambiguous--"Chinese" and "patriotism."
Because of these ambiguities, the liberties with Chinese characteristics approach already lacks credibility with many Western and Hong Kong observers. Viewed in its most positive light, this approach creates "mines" and "traps" for the unwary journalist. With no bright-line tests to distinguish patriotic from unpatriotic behavior, this approach appears to chill expression and encourage media self-censorship. In essence, it holds Hong Kong "freedom of the press" hostage to changing P.R.C. notions of patriotism.
At worst, the liberties with Chinese characteristics approach fuels Hong Kong and Western suspicions that China plans to extend mainland definitions of "freedom of the press" to Hong Kong. Despite repeated P.R.C. statements to the contrary, many observers fear that the ambiguous adjective "Chinese" is in fact synonymous with "P.R.C." They point to the marked resemblance between rationales for the liberties with Chinese characteristics approach and for recent repressions of the P.R.C. media. They stress that China's own Constitution guarantees "freedom of the press" in language identical to that of the Basic Law, yet "a free press . . . does not exist in practice." As a result, many Hong Kong and Western commentators fear that, out of expediency or inexperience, Chinese interpreters will ultimately choose to follow familiar P.R.C. precedent rather than fashion new meanings of "freedom of the press" specific to the Hong Kong context.
Thus, the liberties with Chinese characteristics approach also is not a viable technique. Its adoption could actually prove detrimental to China's larger policy goals. In particular, this approach could undermine the "one country, two systems" model China proposes for not only Hong Kong but, eventually, Macao, Taiwan, and the world. As P.R.C. leaders themselves have acknowledged, public trust and confidence are essential for successful implementation of this model. By suggesting that in one context--press freedom--China might apply its own values and definitions, the liberties with Chinese characteristics approach raises troubling questions about the credibility of the "one country, two systems" formula as a whole.
Finally, the balancing approach looks to international practice as the standard for interpreting and implementing the Basic Law's "freedom of the press" guarantee. Its proponents claim that foreign countries uniformly define "freedom of the press" in relative, not absolute, terms. They argue that every sovereign nation has enacted laws that "redefine this liberty." They point out that even China's most vociferous critics--the United States and Great Britain--permit extensive legal restrictions on "freedom of the press" in the interests of national security.
Based on foreign precedent, proponents of the balancing approach conclude that the proper interpretation of "freedom of the press" strikes a "balance between individual rights and social order for the good of the entire community." Accordingly, they read the Basic Law's "freedom of the press" guarantee as entailing necessarily both legal and ethical constraints on Hong Kong media activities in order to achieve this delicate balance.
The strength of the balancing approach is that it removes the definition of "freedom of the press" from the specific China-Hong Kong context. Unlike the liberties with Chinese characteristics approach, it suggests that Chinese interpreters of this language will look beyond P.R.C. socialist practice to consider internationally accepted meanings of the term.
Ironically, this resort to foreign precedent is the weakness of the balancing approach as well. As the recent debate over media coverage of celebrities has illustrated graphically, there currently exists no international consensus as to what precisely constitute the appropriate boundaries of press freedom. Even if all countries indeed strike a balance between individual and societal interests, they do so at radically different points. Media activities viewed as innocuous, even exemplary, in one country may be regarded as a social danger in another country.
By directing interpreters to foreign experience, the balancing approach offers no concrete guidelines or procedures for defining "freedom of the press." In particular, it provides no meaningful, objective standards to judge when a specific media activity is beneficial or detrimental to society. This encourages unpredictable, arbitrary interpretation of Basic Law language. Proponents of the balancing approach only compound this problem by citing ethical, as well as legal, restrictions. They assume common world understandings of "right" and "wrong" journalistic behavior that simply do not exist.
Thus, all six proposed approaches are implausible choices for China. In the next parts of this Article, I present a translation approach, which builds upon recent U.S. literature on constitutional interpretation. I argue that this approach offers a better framework for understanding China's likely technique for interpreting Basic Law guarantees such as "freedom of the press." Unlike the existing proposals, this translation approach advances China's two key goals for Hong Kong. It showcases the "one country, two systems" policy and, at the same time, ensures that China retains maximum flexibility to respond to changing conditions during the transition era. Early developments in post-1997 Hong Kong support this analysis but also expose serious potential dangers of the translation approach for Hong Kong rights and freedoms.
In a series of recent influential articles, Lawrence Lessig has elaborated a "translation" model for interpreting U.S. constitutional text. This model calls for a two-step process of interpretation. Under the first step, the interpreter determines the meaning of the text at issue as applied in the original context. She considers the "facts, or values, or assumptions, or structures, or patterns of thought" that led the author to choose the specific language in question to convey meaning. Under the second step, the interpreter attempts to preserve the original meaning by "translating" it into the new context. To do so, she identifies any changes between the two contexts in "presuppositions" underlying the original reading of the text. She then reinterprets the text to accommodate these changes, "altering the original reading as little as possible while seeking its modern `equivalent.'"
Proponents claim that the translation model has significant advantages over the two dominant approaches to constitutional interpretation, originalism and textualism. Unlike traditional originalism, which insists on "applying the original text now the same as it would have been applied then," the translation model acknowledges and "neutralizes the effect of changed context on a text's meaning." As a result, it better ensures that the original meaning of a text prevails over time and is not distorted or eroded by changes in context. Proponents argue that the translation model is superior to textualism as well. The translation model expressly rejects the textualist technique of ignoring original meanings of constitutional text and simply adopting the reading that "is most compelling in the current context." In so doing, the translation model constrains judicial activism and promotes "fidelity" to founding understandings of constitutional text.
Proponents of the translation model also recognize its potential dangers. Specifically, they acknowledge the "immense power" of the translator to "improve," even rewrite, the original meaning of a text. As in the linguistic context, the accuracy and quality of constitutional translation ultimately will depend on the translator's skill and "commitment to fidelity." According to Lessig, two safeguards, however, limit overly free translations of constitutional text and meaning. The translation model itself contains one safeguard--familiarity. Under the first step of the model's two-step process, the interpreter first must become familiar with the original text and context, the new context, and how they interrelate. Only when the interpreter is "`at home' in both contexts, understanding from where and to where meaning is to be carried" can she proceed with the process of translation. The other safeguard--humility--is a "self-imposed ethic on the practice of translation." According to Lessig, the responsible interpreter necessarily will refrain from any translation that is beyond the interpreter's political or institutional authority ("structural humility") or capacity ("[h]umility grounded in incapacity").
U.S. legal scholars developed the translation model as a guide for U.S. constitutional interpretation. Nonetheless, it also provides a useful analytical tool for understanding China's likely approach to interpreting Hong Kong Basic Law guarantees. The next part of this Article explains how a translation approach based on this U.S. model would resolve interpretation of the Basic Law's "freedom of the press" provision.
Under the translation approach, Chinese interpreters provide Hong Kong with the "equivalent" of the "freedom of the press" it enjoyed before the handover, with the "smallest possible" adjustments in original meaning to reflect changed conditions after the handover. The translation approach roughly approximates Lessig's two-step process. Interpreters initially seek to determine the meaning of "freedom of the press" in its original context--pre-handover Hong Kong. Recent P.R.C. official statements suggest that they will base definition on Hong Kong understandings of "freedom of the press" as of 1984 (the date of the Joint Declaration) rather than 1997 (the actual handover date). These statements also indicate that interpreters will consider "minor" and "ordinary" changes in meaning from 1984-97. However, these interpreters will reject "major" and "important" changes as inconsistent with the Joint Declaration's pledge that Hong Kong laws will remain "basically unchanged." As a result, interpreters likely will ignore the radical liberalizing trends in Hong Kong media law and practice during the final decade prior to Hong Kong's reversion to Chinese sovereignty. In determining the original meaning of "freedom of the press," interpreters will draw primarily on pre-handover Hong Kong's traditional restrictive "law on the books" rather than its recent permissive "law in action."
The translation approach, unlike the law on the books approach and the law in action approach, does not freeze and preserve the meaning of "freedom of the press" as understood in the original context. It also considers the changed context at the time of interpretation and any effects on the original meaning of "freedom of the press." Accordingly, under the translation approach, Chinese interpreters do not simply apply "freedom of the press" as it would have been applied in pre-handover Hong Kong. They also identify and address any changes in the key "presuppositions" underlying the original meaning of "freedom of the press."
There have already been significant changes since 1984 (or even June 30, 1997). Most notably, Hong Kong is now an "inalienable part" of China rather than a British Crown Colony. These changes have had a direct impact on the meaning of "freedom of the press." For example, the British colonial definition of "freedom of the press" excluded the media's right to insult the Queen. In today's Hong Kong, this restriction has a new meaning because a basic fact has changed--the British monarch is no longer Hong Kong's sovereign. During its fifty-year transition to socialism, Hong Kong will likely experience many other dramatic changes that, in turn, will affect the meaning of "freedom of the press." Under the translation approach, interpreters consider and incorporate these changes into their evolving definitions of "freedom of the press."
Once Chinese interpreters have determined the meaning of "freedom of the press" in its original context and any changes between the original context and the new context, they proceed to the second step of the translation approach. They attempt to fashion a contemporary equivalent of the original meaning of "freedom of the press" with minor adjustments to accommodate any changed conditions.
The aforementioned colonial-era prohibition against insulting the Queen provides an excellent illustration of how this translation process could operate in practice. A November 1997 interpreter of the Basic Law's "freedom of the press" guarantee would determine the original meaning of "freedom of the press." In its pre-handover Hong Kong context, "freedom of the press" did not include the right of the media to insult the Queen, the then sovereign of Hong Kong. Due to changed circumstances, the Queen is no longer the sovereign of Hong Kong; the P.R.C. leadership has assumed that role. Thus, the modern equivalent of the original meaning of "freedom of the press" would exclude Hong Kong media publication of materials that insult the current sovereign, the P.R.C. leadership.
From China's perspective, the translation approach has significant advantages. The first step of this approach reinforces China's continuing commitment under the "one country, two systems" policy to maintain Hong Kong's distinct legal system and way of life. It does so by making Hong Kong, not P.R.C., law the initial point of reference for any interpretation of Basic Law guarantees. The second step of the translation approach meets China's other key objective, flexibility. It provides a rationale and a method for reinterpreting Basic Law guarantees to accommodate change.
The translation approach is also a natural extension of current Chinese methods for defining post-1997 Hong Kong's civil liberties. Although China has not explicitly adopted or even articulated a "translation" model, P.R.C. spokespersons in practice already have begun to "translate" Basic Law guarantees. For example, they have justified post-handover restrictions on press rights to advocate "two Chinas" and "splittism" as updated versions of pre-1997 British colonial efforts to "safeguard their sovereignty and territorial integrity and ban inciting remarks undermining unity."
From Hong Kong's perspective, in contrast, the translation approach poses serious dangers. In effect, China becomes the self-appointed translator of Hong Kong rights and freedoms. It unilaterally defines the values and purposes of translation. By controlling the very function of translation, China ultimately determines whether this process produces "equivalent" meanings.
To compound the problem, China is subject to neither of the translation constraints identified in the U.S. scholarly literature--familiarity and humility. The U.S. translation model requires that the translator of a text be familiar with "its purpose, the assumptions that underlie it, the scope of its reach, and theories it embraces." Thus far, China falls far short of this prerequisite for proper translation of Basic Law guarantees. For example, in their discussions of "freedom of the press," P.R.C. leaders have consistently demonstrated their lack of familiarity and inexperience with pre-1997 Hong Kong's Western-style definitions. Indeed, these errors have been so egregious that they raise questions as to whether Chinese officials are even capable of fashioning "equivalents" for freedoms they so fundamentally misunderstand.
Similarly, China enjoys the "immense power" of the translator without any "limits of humility," be they "structural" or "grounded in incapacity." The U.S. translation model's claim of "structural humility" is premised on an American system of separation of powers and checks and balances. It assumes a "legal culture" that "requires" "a clear division of labor between the author" of the text (the legislative branch) and the "translator" (the judicial branch). Under this scheme, the judicial translator's authority extends only to "nonpolitical" presuppositions. The translator must "ignore" "political" presuppositions, which fall within the exclusive "domain" of the legislative branch.
China, in contrast, explicitly rejects the U.S. concepts of separation of powers and checks and balances. The P.R.C. national legislature, as "guided" by the Communist Party, exercises supreme governing authority. The Basic Law only confirms this model of legislative supremacy by assigning China's highest legislative body, not its top judicial organ, the ultimate power of interpretation. This power specifically includes consideration of "political" questions. Thus, unlike the U.S. model, the "author" of Hong Kong freedoms is also their "translator." As a result, Chinese translation is subject to none of the practical or theoretical "structural" constraints of its American counterpart.
The final U.S. translation safeguard, "humility of capacity," is equally inapplicable in the Chinese context. Under this notion, the U.S. model envisions that the translator will "abstain" voluntarily from any translation that is beyond the translator's expertise, understanding, or resources. It cites actual cases in which the U.S. Supreme Court formally has refused to render decisions due to incapacity. In the Chinese situation, public acknowledgment of such incapacity is virtually inconceivable. It would be tantamount to a formal admission by Chinese authorities that they are unqualified to rule over capitalist Hong Kong. As the recent debate over "freedom of the press" has illustrated, Chinese leaders are hypersensitive to any foreign criticism of their interpretations of pre-1997 Hong Kong rights and freedoms. They reject Western attempts to "correct" and "enlighten" them as nothing less than intrusions into Chinese national sovereignty. Thus, like "familiarity" and "structural humility," "humility of capacity" too offers no real check on Chinese translation of Hong Kong freedoms.
For post-1997 Hong Kong, freedom is a matter of interpretation--Chinese interpretation. Yet, there currently exist no clear-cut rules or procedures to guide or constrain that interpretation. Hong Kong's founding documents, the Joint Declaration and the Basic Law, offer only the barest outlines of an interpretation process. Chinese, Hong Kong, and foreign observers have attempted to flesh out these provisions, but, as this Article has demonstrated, with minimal success.
This Article has examined current proposals for interpreting one Hong Kong freedom, "freedom of the press," and has shown that the six approaches suggested thus far are implausible choices for China. All six proposed approaches are flawed in their choice of definitional points of reference. The first two approaches, the strict literalist approach and the integrated constitution approach, confine China's inquiry to an open-ended charter--the Basic Law--that itself requires interpretation. The second two approaches, the law on the books approach and the law in action approach, apply pre-handover Hong Kong meanings of "freedom of the press." As a result, they freeze definition as of 1997 and fail to accommodate change. The fifth approach, the liberties with Chinese characteristics approach, potentially imposes P.R.C. definitions on Hong Kong and, hence, undermines the credibility of the "one country, two systems" policy. The sixth approach, the balancing approach, looks to international experience for definition. Because there is in fact no common meaning of the term "freedom of the press," this approach lacks clarity and predictability. The principal problem is that these approaches fail to accommodate China's larger policy goals for the post-1997 era. If adopted, they would impede P.R.C. efforts to implement its "one country, two systems" model in an effective, credible, and flexible manner.
The translation approach, drawn from U.S. literature, provides a better framework for understanding the methods that China has and will be using to define post-1997 Hong Kong's civil liberties. Within that framework, China can retain its credibility--both in Hong Kong and in the rest of the world--with regard to its pledge of "one country, two systems" and the flexibility that China considers a central element of its sovereignty.
The approach proceeds in two steps. In the first step, China as the translator determines pre-handover Hong Kong understandings of "freedom of the press" as they existed in law and practice. In the second step, China attempts to fashion a contemporary equivalent of the original meanings of "freedom of the press" with the "minor" adjustments necessary to accommodate changed circumstances. In so doing, China ostensibly adheres to methods of constitutional interpretation applied elsewhere in the world.
The translation approach may leave the Chinese interpreter with considerably more flexibility than it does the corresponding interpreter of the U.S. Constitution--the Supreme Court of the United States. The Supreme Court is, at least in theory, limited by its familiarity with the original context and meaning of the Constitution, separation of powers, and its self-imposed abstention doctrine. None of these constraints exists in the Chinese context. Thus, the resulting framework is one in which China can enjoy the "immense power" of the translator, while maintaining its commitments under the "one country, two systems" policy through standards of interpretation potentially acceptable to the rest of the world. For Hong Kong, however, the translation approach poses serious dangers. Hong Kong freedom ultimately may be lost in Chinese translation.
[*] Professor of Law, Washington University. A.B., Princeton University, 1977; M.A., J.D., Yale University, 1981; J.S.D., Stanford University, 1987. I thank Kathleen Clark, William Jones, Lynn LoPucki, and Ronald Mann for their comments on earlier drafts of this article and Natalia Dronova for her research assistance.
[1.] Hong Kong and foreign officials and commentators commonly refer to the Basic Law as post-1997 Hong Kong's "mini-constitution." See, e.g., Charlotte Ku, People's Republic of China: The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, Introductory Note, 29 I.L.M. 1511, 1511 (1990) ("Provisions of the Basic Law will serve as a `mini-constitution'"); Christine Loh, Historical Case for Forming an Oligarchy, S. CHINA MORNING POST, Dec. 2, 1996, at 18, available in LEXIS, News Library, Curnws File (describing Basic Law as "Hong Kong's future mini-constitution"); Carole J. Petersen, Equality as a Human Right: The Development of Anti-Discrimination Law in Hong Kong, 34 COLUM. J. TRANSNAT'L L. 335, 349 (1996) (stating Basic Law "will serve as the mini-constitution of Hong Kong after 1997"). While some Chinese spokespersons have also used the term "mini-constitution" [xiao xianfa] (see, e.g., RONALD C. KEITH, CHINA'S STRUGGLE FOR THE RULE OF LAW 185 (1994) (April 5, 1992 speech by "one of the most senior PRC architects of the Basic Law," Ji Pengfei, referring to Basic Law as Hong Kong's "mini-constitution"), others have explicitly rejected such characterization of the Basic Law. See, e.g., Zhang Youyu, The Reasons for and Basic Principles in Formulating the Hong Kong Special Administrative Region Basic Law, And Its Essential Contents and Mode of Expression, 2 J. CHINESE L. 5, 7-8 (1988) (Basic Law drafter stating "[t]here are those who call the Basic Law Hong Kong's `little Constitution,' but as has been seen, this appellation is quite inappropriate."). For a discussion of Chinese views regarding the term "mini-constitution," see Perry Keller, Freedom of the Press in Hong Kong: Liberal Values and Sovereign Interests, 27 TEX. INT'L L.J. 371, 390 (1992).
[2.] Zhonghua Renmin Gongheguo Xianggang Tebie Xingzheng Qu Jiben Fa [The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China] preamble (1990), translated in 29 I.L.M. 1511, 1520 (1990) [hereinafter Basic Law].
[3.] See id.
[4.] Id. art. 5, at 1521.
[5.] Id. art. 2, at 1521.
[6.] Id. art. 8, at 1521.
[7.] Id. art. 6, at 1521.
[8.] See id. ch. III, at 1525 ("Fundamental Rights and Duties of the Residents"). For a key divergence between Basic Law and Chinese constitutional provisions, compare id. art. 37, at 1526 (guaranteeing Hong Kong residents the "right to raise a family freely") with XIANFA [Constitution of the People's Republic of China], art. 49 (1982) (P.R.C.) (imposing on People's Republic of China ("P.R.C.") citizens the "duty to practice family planning"). Many of the Basic Law rights and freedoms have direct analogues in the P.R.C. Constitution. For example, both the Basic Law and the P.R.C. Constitution guarantee freedom of speech (see Basic Law, supra note 2, art. 27, at 1525; XIANFA, art. 35 (1982) (P.R.C.)), freedom of association (see id.), and freedom of religious belief (see Basic Law, supra note 2, art. 32, at 1526; XIANFA, art. 36 (1982) (P.R.C.)). A key difference, however, is that the Basic Law, unlike the P.R.C. Constitution, recognizes international law definitions of such rights. Article 39 states that "provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region." Basic Law, supra note 2, art. 39, at 1526. The article also stipulates that Hong Kong residents' rights and freedoms may be restricted "as prescribed by law" but only if "[s]uch restrictions shall not contravene the provisions" of the aforementioned international agreements. Id. The P.R.C. joined the International Covenant on Economic, Social and Cultural Rights in October 1997 and has announced that it plans to sign the International Covenant on Civil and Political Rights as well. See On Eve of Geneva Rights Talks, China Agrees to Sign U.N. Pact, N.Y. TIMES, Mar. 13, 1998, at A8. It remains to be seen what will be the impact on Chinese constitutional definitions. Currently, there is considerable resentment among Chinese citizens regarding the disparities between Hong Kong and P.R.C. rights. Thus, some feel that a "long-term threat" to "Hong Kong's way of life . . . may ultimately come from the ordinary mainland public's bitterness at Chinese citizens in a former British colony being allowed to enjoy privileges which they are denied." Danny Gittings, Mainland Envy Poses Problem, S. CHINA MORNING POST, Aug. 4, 1996, at 10, available in LEXIS, News Library, Curnws File.
[9.] See China Assures Hong Kong of Press Freedom, But . . . , AGENCE FRANCE PRESSE, June 1, 1996, at 1, available in LEXIS, News Library, Curnws File (Lu Ping, Director of China's Hong Kong and Macau Affairs Office, announcing in a May 31, 1996 CNN interview: "`[T]here will certainly be freedom of [the] press after 1997 . . . [t]hey can object to our policies. They can say anything they like, but with regard to action, they have to be careful. Freedom of [the] press has to be regulated by laws'" and citing press advocacy of Hong Kong or Taiwan independence as an action that will "absolutely not" "be allowed" after the handover); Kathy Chen et al., China's Foreign Minister Issues Warnings, WALL ST. J., Oct. 16, 1996, at A17 (Qian Qichen, Chinese Foreign Minister, stating that after July 1, 1997 the Hong Kong media "`can put forward criticism, but not rumors or lies. Nor can they put forward personal attacks on the Chinese leaders'"); Basic Law Adequate to Protect Freedoms Despite Critics, RENMIN RIBAO (Beijing), Apr. 7, 1997, at 11, available in LEXIS, Asiapc Library, BBCSWB File (Zeng Jianhui, Director of P.R.C. State Council Information Office emphasizing that "freedom of the press" is "relative and limited" and does not permit media to "deceive the public and mislead public opinion").
[10.] Basic Law, supra note 2, art. 27, at 1525.
[11.] See Kieron Flynn, Dispute over Hong Kong Freedoms Escalates, Enters Diplomatic Arena, AGENCE FRANCE PRESSE, Oct. 18, 1996, at 3, available in LEXIS, News Library, Curnws File (Christine Loh commenting that Qian's "remarks are raising fresh concerns about whether Hong Kong people can maintain their current lifestyles as promised"); Emily Lau, Britain Shirking Duty Over Freedoms, S. CHINA MORNING POST, June 10, 1996, at 20, available in LEXIS, Asiapc Library, SChina File (discussing British reaction to Lu's statement and "concer[n that] China may not abide by the promises in the Joint Declaration and the Basic Law.").
[12.] See Frances H. Foster, The Illusory Promise: Freedom of the Press in Hong Kong, China, 73 IND. L.J. 765 (1998).
[13.] See Zhonghua Renmin Gongheguo Zhengfu he Dabuliedian ji Bei Aierlan Lianhe Wangguo Zhengfu Guanyu Xianggang Wenti de Lianhe Shengming [The Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Future of Hong Kong] (1984), in ZHONGHUA RENMIN GONGHEGUO GUOWUYUAN GONGBAO 503 (1985), translated in 23 I.L.M. 1366 (1984) [hereinafter Joint Declaration].
[14.] This has been particularly striking in the human rights context. See Guo Zu, Why Those Who Study Law Act Against the Law--Mediation by Teachers and Students of China Politics and Law University, RENMIN RIBAO (Beijing), Oct. 23, 1989, at 4 (providing detailed legal arguments on behalf of official actions against Tiananmen Square demonstrators); Ren Yanshi, A Comparison of Human Rights In China With Those In The United States, BEIJING REV., Apr. 1-7, 1996 (comparing texts of U.S. and P.R.C. constitutions and concluding that "the Constitutional rights of Chinese citizens are much more extensive and specific, and the Chinese government assumes much greater duty in advancing and protecting human rights"); Judge Says Dissident Wang Dan Enjoyed Full Rights at Trial, XINHUA (Beijing), Oct. 30, 1996, available in LEXIS, Asiapc Library, BBCSWB File (citing legal arguments and texts to support conviction and imprisonment of Chinese dissident Wang Dan). See generally William P. Alford, "Seek Truth From Facts"--Especially When They Are Unpleasant: America's Understanding of China's Efforts at Law Reform, 8 UCLA PAC. BASIN L.J. 177, 181 n.23, 182 (1990) (discussing Chinese leadership's "use of the semblance of legality," and citing as "[a] particularly glaring example," the 1980-81 trial of the Gang of Four); Edward J. Epstein, Law and Legitimation in Post-Mao China, in DOMESTIC LAW REFORMS IN POST-MAO CHINA 19 (Pitman B. Potter ed., 1994) (arguing that "[l]aw was never more vigorously invoked to legitimate Communist rule in the People's Republic of China than it has been in the present era of reforms").
[15.] For a definition of "determinacy," see Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46, 56 (1992) ("the literary property of a rule: that which makes its message clear").
[16.] For an outstanding comparative analysis of constitutional indeterminacy worldwide, see A.E. Dick Howard, Oliver Wendell Holmes Devise Lecture Symposium: The Indeterminacy of Constitutions, 31 WAKE FOREST L. REV. 383 (1996) (discussing constitutional indeterminacy in Western Europe, Central and Eastern Europe, Latin America, South Africa, Ireland, Canada, and the United States). There has been a "hot" and "somewhat vituperative debate" in United States legal scholarship regarding indeterminacy of legal rules. David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 468, 475 n.25 (1990); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679 (1990) ("continuing preoccupation with the indeterminacy debate"). An examination of the extensive literature on indeterminacy is beyond the scope of this Article. For a sampling of the literature, see, e.g., Anthony D'Amato, Pragmatic Indeterminacy, 85 NW. U. L. REV. 148 (1990); John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 DUKE L.J. 84 (1995); Arthur J. Jacobson, Taking Responsibility: Law's Relation to Justice and D'Amato's Deconstructive Practice, 90 NW. U. L. REV. 1755 (1996); Ken Kress, Legal Indeterminacy, 77 CAL. L. REV. 283 (1989); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L. REV. 462 (1987).
[17.] Frederick Schauer has emphasized the "majestic indeterminacy" of constitutional guarantees of freedom of press and speech worldwide and practical restrictions in both the United States and foreign countries. Frederick Schauer, Free Speech and the Cultural Contingency of Constitutional Categories, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL PERSPECTIVES 353, 359 (Michel Rosenfeld ed., 1994).
[18.] For discussions of changing definitions of press freedom in foreign countries, see, e.g., ARTICLE 19, INTERNATIONAL CENTRE AGAINST CENSORSHIP, PRESS LAW AND PRACTICE: A COMPARATIVE STUDY OF PRESS FREEDOM IN EUROPEAN AND OTHER DEMOCRACIES (1993) (Europe); CHINA'S MEDIA, MEDIA'S CHINA (Chin-Chuan Lee ed., 1994) (China); PRESS LAW IN MODERN DEMOCRACIES: A COMPARATIVE STUDY (Pnina Lahav ed., 1985) (United Kingdom, United States, France, Germany, Sweden, Israel, Japan); Frances H. Foster, Information and the Problem of Democracy: The Russian Experience, 44 AM. J. COMP. L. 243 (1996) (Russia); Peter Krug, Civil Defamation Law and the Press in Russia: Private and Public Interests, the 1995 Civil Code, and the Constitution, Part Two, 14 CARDOZO ARTS & ENT. L.J. 297 (1996) (Russia, Europe); Stephen A. Mertz, Justice Through the Eye of a Camera: Cameras in the Courtrooms in the United States, Canada, England, and Scotland, 14 DICK. J. INT'L L. 673 (1996) (United States, Canada, England, Scotland); Kyu Ho Youm, Libel Law and the Press: U.S. and South Korea Compared, 13 UCLA PAC. BASIN L.J. 23 (1995) (United States, South Korea).
[19.] For example, since the Vietnam War, the U.S. "government has taken a decided turn toward increased censorship" of media reports on military operations. RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 302 (1992). See generally id. at 291-320; T. BARTON CARTER ET AL., THE FIRST AMENDMENT AND THE FOURTH ESTATE 335-59, 586-88 (6th ed. 1994); Matthew J. Jacobs, Note: Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, 44 STAN. L. REV. 675 (1992); Rana Jazayerli, Note: War and the First Amendment: A Call for Legislation to Protect A Press' Right of Access to Military Operations, 35 COLUM. J. TRANSNAT'L L. 131 (1997). Similar "emergency" restrictions limit journalists' access to accident sites. See CARTER ET AL., supra, at 589-92 (discussing cases limiting press access to automobile and airplane crash sites); O. Marie Anderson, Note: Mine Accident Investigations: Does the Press Have a Right to be Present?, 98 W. VA. L. REV. 1121 (1996) (considering press access to mine accident investigations).
[20.] Current examples of such changes include proposals to restrict First Amendment protection for dissemination of hate speech (see, e.g., RICHARD DELGADO & JEAN STEFANCIC, MUST WE DEFEND NAZIS?: HATE SPEECH, PORNOGRAPHY, AND THE NEW FIRST AMENDMENT (1997); MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH AND THE FIRST AMENDMENT (1993)); sexist or pornographic material (see, e.g., Debra D. Burke, Cybersmut and the First Amendment: A Call for a New Obscenity Standard, 9 HARV. J. L. & TECH. 87 (1996); Andrea Dworkin, Against the Male Flood: Censorship, Pornography, and Equality, 8 HARV. WOMEN'S L. J. 1 (1985)); violent images (see Ian Matheson Ballard, Jr., Note: See No Evil, Hear No Evil: Television Violence and the First Amendment, 81 VA. L. REV. 175 (1995)); and tobacco advertisements directed at children (see, e.g., John Harrington, Up In Smoke: The FTC's Refusal to Apply the "Unfairness Doctrine" to Camel Cigarette Advertising, 47 FED. COMM. L. J. 593 (1995)). Morality concerns also have inspired recent attempts to curtail media undercover investigative reporting (see Symposium, Undercover Newsgathering Techniques: Issues and Concerns, 4 WM. & MARY BILL OF RTS. J. 1005 (1996)); to mandate publication of sex offenders' names (see Michele L. Earl-Hubbard, Comment: The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 NW. U. L. REV. 788 (1996); Courtney Guyton Persons, Note: Sex in the Sunlight: The Effectiveness, Efficiency, Constitutionality, and Advisability of Publishing Names and Pictures of Prostitutes' Patrons, 49 VAND. L. REV. 1525 (1996)); and to require media outlets to sequester proceeds from contracts with criminal authors (see Garrett Epps, Wising Up: "Son of Sam" Laws and the Speech and Press Clauses, 70 N.C. L. REV. 493 (1992)).
[21.] The O.J. Simpson trial, in particular, has prompted serious discussion about the possible conflict between press rights and notions of a "fair trial." See, e.g., Charles H. Whitebread & Darrell W. Contreras, Free Press v. Fair Trial: Protecting the Criminal Defendant's Rights in a Highly Publicized Trial by Applying the Sheppard-Mu'Min Remedy, 69 S. CAL. L. REV. 1587 (1996).
[22.] For a sampling of the vast literature on the challenges of new information technology to traditional First Amendment definitions and doctrines, see, e.g., Keth A. Ditthavong, Paving the Way for Women on the Information Superhighway: Curbing Sexism Not Freedoms, 4 AM. U.J. GENDER & LAW 455 (1996); Donald W. Hawthorne & Monroe E. Price, Rewiring the First Amendment: Meaning, Content and Public Broadcasting, 12 CARDOZO ARTS & ENT. L. J. 499 (1994); M. Ethan Katsh, Software and the First Amendment: Virtual Doorkeepers in Cyberspace, 1996 U. CHI. LEGAL F. 335 (1996); Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the "Speaker" Within the New Media, 71 NOTRE DAME L. REV. 79 (1995); Symposium: Emerging Media Technology and the First Amendment, 104 YALE L. J. 1619 (1995).
[23.] It should be noted that expansive definitions of Hong Kong freedoms are a relatively recent phenomenon. During most of Hong Kong's colonial past there existed strict legal limitations on human rights, including press freedom. See generally Ming K. Chan, The Imperfect Legacy: Defects in the British Legal System in Colonial Hong Kong, 18 U. PA. J. INT'L ECON. L. 133 (1997); Richard Klein, The Empire Strikes Back: Britain's Use of the Law to Suppress Political Dissent in Hong Kong, 15 B.U. INT'L L.J. 1 (1997). Many of these laws still remained on the books in Hong Kong at the time of the handover even though they had not been applied in practice for decades. See infra part I.C, D.
[24.] I draw particular inspiration from Lawrence Lessig's work on constitutional "translation." See Lawrence Lessig, Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory, 110 HARV. L. REV. 1785 (1997); Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997); Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993); Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869 (1996); Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125; Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
[25.] Basic Law, supra note 2, art. 1, at 1521.
[26.] Joint Declaration, supra note 13, ¶ 3 (5), at 1372.
[27.] Basic Law, supra note 2, art. 27, at 1525.
[28.] Trevor Mason, China Pressed on Hong Kong Freedom of Speech, PRESS ASS'N NEWSFILE, Oct. 24, 1996, available in LEXIS, News Library, Curnws File (Malcolm Rifkind, British Foreign Secretary, stated: "`Freedom of the press and freedom of assembly are guaranteed by the joint declaration and the basic law and there is no mention of the kind of restrictions suggested by the Foreign Minister [Qian Qichen] in his reported remarks.'").
[29.] John Flint, Lu Tying Knots Over Free Press, S. CHINA MORNING POST, June 6, 1996, at 4, in FBIS-CHI-96-110, June 6, 1996, at 95 (quoting Christopher Patten, the last British Governor of Hong Kong).
[30.] Fung Wai-Kong, World Focus on Press Freedom Under China, S. CHINA MORNING POST, June 10, 1996, at 5, in FBIS-CHI-96-112, June 10, 1996, at 73 (quoting Christopher Patten, the last British Governor of Hong Kong).
[31.] Id. ("Mr. Patten said the territory's press freedom should not be qualified in any way by national Chinese law or by other policies.").
[32.] Tom Plate, Hong Kong's Houdini of Democracy; The Last British Governor, Chris Patten, Put China on the Defensive and Made Himself a Hero Back Home, L.A. TIMES, May 13, 1997, at B7 (Beijing "now calls the last British governor names like `prostitute,' descendant of `stinking colonialism' and, in one of those sublimely original propaganda-mill phrases that can only originate in China, `the sinner of a thousand millennia.'").
[33.] See, e.g., Editorial, Chris Patten Makes a Fool of Himself by Saying Something Revealing His Ignorance of the Law, WEN WEI PO (Hong Kong), June 7, 1996, at A2, translated in FBIS-CHI-96-111, June 7, 1996, at 96 ("Regarding the Basic Law, Patten has adopted the method of cutting it apart and taking it out of context.").
[34.] See, e.g., Yu Ming-shan, Lu Ping Answers Reporters' Questions in Japan (Full Text), WEN WEI PO (Hong Kong), June 6, 1996, at B5, translated in FBIS-CHI-96-110, June 6, 1996, at 96 (Lu Ping, defending restrictions on press "advocacy" of Hong Kong or Taiwan independence as "nothing new. All countries have similar laws to prohibit secession and subversion. There is a similar law in Hong Kong. It is even prohibited in Hong Kong to smear the British Queen, still more to subvert the state."); Editorial, Freedom of Press and Observing Law Complement Each Other, WEN WEI PO (Hong Kong), June 3, 1996, at A2, translated in FBIS-CHI-96-107, June 3, 1996, at 91 (describing limits on press freedom in British Hong Kong).
[35.] See, e.g., Han Hua, Beijing: Britain Should Not Vainly Try to Impose its Laws on Others, WEN WEI PO (Hong Kong), Jan. 22, 1997, at A1, available in LEXIS, Asiapc Library, BBCSWB File (Shen Guofang, Spokesman for the Chinese Foreign Ministry, arguing that repeal of unilateral British amendments to Hong Kong laws "is purely an internal affair of China" and emphasizing that "[T]he Chinese government now is not the pre-1949 Chinese government. We cannot accept anything that is forced upon us."). For discussions of Chinese concerns with sovereignty, see generally MICHAEL YAHUDA, HONG KONG: CHINA'S CHALLENGE 111-13 (1996); Jacques deLisle & Kevin P. Lane, Cooking the Rice Without Cooking the Goose: The Rule of Law, the Battle over Business, and the Quest for Prosperity in Hong Kong after 1997, in HONG KONG UNDER CHINESE RULE: THE ECONOMIC AND POLITICAL IMPLICATIONS OF REVERSION 62-65 (Warren I. Cohen & Li Zhao ed., 1997).
[36.] See Foster, supra note 12.
[37.] See id. at pt. II.C. (discussing problems created by different sentence structure and word order of English and Chinese texts of Joint Declaration provision). See generally Albert H.Y. Chen, 1997: The Language of the Law in Hong Kong, 15 H.K.L.J. 19, 27 (1985); Anne S.Y. Cheung, Towards a Bilingual Legal System--The Development of Chinese Legal Language, 19 LOY. L.A. INT'L & COMP. L.J. 315, 323-24 (1997).
[38.] See Foster, supra note 12, at pt. II.B (discussing inaccurate translation of "press" as "chuban," which refers to "publication" rather than mass media as a whole). See generally Ann D. Jordan, Lost in the Translation: Two Legal Cultures, the Common Law Judiciary and the Basic Law of the Hong Kong Special Administrative Region, 30 CORNELL INT'L L.J. 335 (1997).
[39.] For example, paragraph 3(5) of the Joint Declaration uses the broad phrase "rights and freedoms"/ "quanli he ziyou" to refer to a lengthy list of protected liberties, including those of the press. Joint Declaration, supra note 13, ¶ 3(5), at 1372. Thus, it is uncertain whether the Joint Declaration guarantees the Hong Kong media "rights," "freedoms" or both. This ambiguity causes considerable confusion about the scope of press liberties. In Chinese, the terms quanli ["right"] and ziyou ["freedom"] have distinct meanings and legal effects. "Freedoms" are subordinate to "rights." See Foster, supra note 12, at pt. II.A. A Hong Kong commentator has captured the difference between "rights" and "freedoms":
If one has the "right" to do something, other people must respect his actions. On the contrary, if one is "free" to do something, there may be no obligation by third parties to respect his action; he, in fact, may have to respect others' freedoms as well in doing what he wants.
There are also laws restricting freedom of the media. It is not allowed to instigate subversion of British rule, report in detail an ongoing case which may lead the public or judges to believe that a certain person is guilty, vilify others, or publish salacious writing or pictures, nor is television allowed to broadcast cigarette advertisements or television series or scenes of extreme violence and obscenity. Can this be regarded as "absolute freedom"?
the most significant elements [that] are not just relevant to an author's use, but are indeed relied upon by the author when using the text--relied upon in just the sense that had they been other than they were when the author first used these words, then the author would have used words other than she did.
While any element of an original context may change, and thus change something about the significance of the text, when a presupposition changes something more significant happens. When a presupposition changes, we imagine that the author would have accommodated that change when she first used the text, at least had she had the chance. Or alternatively, a presupposition marks out those elements of an interpretive context that, had they been different, would have led to a change in text.
Like in your country. If some press thinks that Hawaii should be separated from your government, from the United States, that's a different thing." . . . "If someone advocates a second government instead of the present government, what do you think? Would it be allowed? I don't think so. Would two national flags be allowed? Another national flag? Would you allow that? That's a different thing, you see.