After laying it dormant for several decades, the Hong Kong government, amid the ongoing crackdown on the opposition, has dusted off a sedition law under the Local Crimes Ordinance to be enforced in many many lawsuits. Public advocacy that was once considered lawful public protest and critical debate is now labeled as sedition, with more than 60 arrests to date. This shrunken public sphere in Hong Kong should be of concern to anyone dealing with the once vibrant city.
In the parade of sedition prosecutions, a recent case involving a children’s book about sheep and wolves has sparked worldwide bewilderment, as observers wonder how a satirical children’s cartoon book can lead its authors in prison for 19 months. Readers remember the case of Bo Yang, who in 1968 was sentenced to nine years in prison during authoritarian times in Taiwan for simply translating a suggestive cartoon of Popeye.
In sentencing these children’s book authors, the legal hurdles the judge had to jump to uphold the prosecution’s position speaks volumes about the Hong Kong government’s broader agenda to suppress public debate. Three fundamental elements of the court’s analysis drawn from the government case to justify the weaponization of the sedition ordinance are of particular concern.
The first central concern – which has been criticized by many, including the UN Human Rights Committee in its recent highly critical concluding observations on Hong Kong – is the vagueness of the statutory principles applied. The defendants in the sheep case raised this issue in reference to the sedition ordinance’s prohibition against speaking “to arouse hatred or contempt or to excite disaffection” or “to promote feelings of ill will or enmity”.
The judgment simply dismisses this vagueness objection by noting that “these are only words in the ordinary sense … best left to the trial judge or jury.” But do these ordinary meanings provide sufficient guidance for judging appropriate limits on speech in public life?
Can a speaker imagine a criticism of the government that does not provoke some degree of disaffection or ill will? Would it be possible, if the speaker uses satirical or mocking speech, to effectively advance a public policy argument without violating these vague prohibitions? Certainly, in finding children’s book authors guilty of simply using cartoons to explain controversial politics to children, there is little critical speech not covered by the Sedition Act.
A second key concern relates to the application of international human rights standards. To the court’s credit, it at least mentions human rights – unlike previous judgments related to national security that have come down since a new national security law was imposed on Hong Kong. In cases of incitement to violence in the context of national security regulation, the international human rights standard set out in the Johannesburg Principles emphasizes the protection of freedom of expression, requiring that the speaker intends to commit imminent violence and that such violence is likely to occur.
Instead of applying this intent standard, the court in the Sheep and Wolves case skips over human rights and discusses common law sedition, concluding that it does not impose requirement that the speaker intends to use violence.
The court invokes another set of comparable principles, the Syracuse Principles, to define “the legitimate interest of national security” to include the protection of “the existence of the nation or its territorial integrity”, but then ignores the strict limits of such regulation, the Syracuse Principles. need in the context of freedom of expression. The court says Hong Kong is an exceptional case, so overseas practice, presumably including the Syracuse Principles, is “of little help”.
The Syracuse Principles aim to provide guidance for navigating the boundary between protecting national security and human rights under the ICCPR, a treaty to which Hong Kong has long been bound and which has been fully incorporated into the Hong Kong Bill of Rights and Basic Law. . Limitations rejected under the heading of Hong Kong exceptionalism include Syracuse’s demands that national security cannot be invoked against “local or relatively isolated threats to public order” or as a “pretext for imposing a vague or arbitrary”. The Syracuse Principles emphasize that “the violation of human rights compromises genuine national security”.
It’s hard to imagine that these children’s books pose a threat to law and order, local or otherwise.
The third movement of fundamental concern that has brought these convictions home is factual which drives the much wider growth of prosecutions in Hong Kong in the areas of national security and public order – with more than 10,000 arrests for the public order and more than 200 for national security. This ties into the characterization of the 2019 massive protests in Hong Kong, which saw up to 2 million Hong Kongers take to the streets in largely peaceful mass protests.
Court rules that tens of thousands of protesters in 2019 “did not recognize the sovereignty of the People’s Republic of China over the Hong Kong SAR and did not support the ‘one country, two systems’ policy”, while supporting calls for “independence and autonomy”. -determination.” From this characterization, it then appears that the authors of defendant books, in raising awareness of protest in children’s books, are blaming themselves for associating with such allegedly illegal protests.
This view certainly underpins the government’s narrative as to why such extreme measures to suppress the 2019 protests were justified, but it ignores the reality that most protesters were simply demanding respect for the commitments of the Basic Law and the rule of law, as evidenced by the five demands of the demonstrators. The five demands had called for the withdrawal of an extradition bill (which would have allowed extradition to the mainland), the retraction of the characterization of the protests as riots, the release and exoneration of arrested protesters, an independent investigation into police behavior and the implementation of the Basic Commitment to Universal Suffrage Act. From public reports, it appears that a small, frustrated minority were arguing for independence, despite having no obvious ability to push such a demand forward.
This official view of the protests, which the court fully adopted in its judgment, is behind the mass arrests and prosecutions. Could the defendants in this case simply have used a children’s fairy tale to poke fun at government repression and mass arrests during and after the 2019 protests, with no intention of having an opinion on independence?
In the court’s account, “the wolves are the aggressors and the sheep are the oppressed”. Do wolves simply symbolize abusive law enforcement and intimidation, leaving the sheep in a dilemma as to what is allowed and what is not?
Many commentators and the millions of people who marched in Hong Kong in 2019 have clearly concluded that the Extradition Bill profoundly ignores the requirements of the Basic Law regarding the rule of law and fundamental rights and, further , that aggressive law enforcement tactics were being used to silence their protests. Whether officials fully agree with this assessment or not, the extradition bill, police behavior and the lack of promised democratic reform were matters of legitimate public interest. Is speaking out on these issues a sedition?