Activism or Separatism? The Declining Freedom of Speech in Hong Kong

Posted on 27 Jan 2022 by Matthew Sou

Disclaimer: The views expressed below are that of the individual author.

‘If liberty means anything at all it means the right to tell people what they do not want to hear.’[1]

Free speech is intrinsic to human development as it promotes public discourse in the search for truth, develops human self-fulfilment, allows citizens to participate in democracy, and exposes the government under scrutiny. [2] Therefore, it is difficult to argue for the removal of this valuable human right if the society has enjoyed its fruits. Yet, citizens of Hong Kong, a liberal enclave of China, have been involved in a prolonged fight to retain this freedom ever since the handover to China in 1997, and the enactment of the National Security Law (NSL)[3] and recent decisions from the Hong Kong court suggest that they have already lost the battle.

Background

The Sino-British Joint Declaration of 1984 marked the end of the British rule and the introduction of ‘one country, two systems’ in 1997, an attempt by China to preserve the common law jurisdiction while enacting a ‘mini-constitution’ (the Basic Law) to govern Hong Kong’s judicial behaviour. However, the ideological and political tensions between the pro-democracy supporters and the pro-Beijing camp have long existed prior to the handover. These tensions culminated in tumultuous protests in 2019 against the Extradition Bill, which was designed to extradite Hong Kong people to China for trial.[4] These demonstrations caused vociferous turbulence and the Beijing government in response brought in a more draconian measure—the NSL—criminalising any act of secession, subversion, terrorism, or collusion with external forces, with a maximum sentence of life imprisonment.[5] The purpose of the NSL is to deter and punish the separatist, however, it treads on the very fine line between separatism and activism, which leads to a drastic detriment to the freedom of expression.

Two NSL cases

The NSL is capable of overriding any law in Hong Kong. The national security commission, supported by the Communist Party, is vested with immense power, one of which is to select their desirable judges to hear national security cases ad curiam. Ludicrously, the NSL even has the purported extraterritorial ability to prosecute wrongdoers outside Hong Kong regardless of their nationality and transfer them to mainland China for trial.[6] The law is further problematised by immunity from judicial review.

The impact on free speech has emerged from the case of Tong Ying Kit.[7] Tong, being the first protester charged with terrorism, incitement to commit secession under the NSL, rode a motorbike into a group of riot police with the flag waving a popular slogan ‘liberate Hong Kong, revolution of our times’. He was denied trial by jury and was given a 9-year sentence by a panel of judges selected by the commission clandestinely. The core of the debate revolves around whether the meaning of the slogan breached the NSL and thus amounted to secession. [8]The slogan was generally not regarded as a product of the separation movement, but rather deriving from the campaign for democracy and universal suffrage. [9] The court, however, did not take this view, ruling that any material containing such words would be deemed unlawful on the ground that the words alone were ‘a general call for the separation’ of Hong Kong from China with a view to ‘[intimidate] the public in order to pursue a political agenda.’[10] In this sense, the Hong Kong court has treated pure political speech as illegal, and thus equated democracy to terrorism.

Free speech is further undermined in the most recent case—Ma Chun Man. [11] Fully aware of the NSL, Ma, peacefully, chanted democracy words in the street. Subsequently, the police arrested him multiple times and charged him with secession under the NSL. Ma’s only defence was that he was exercising his right of free speech protected under the Basic Law, but the judge still held that his speech was outside the scope of protection and sentenced him to 5 years imprisonment. Critically, the judge did not draw any distinction between political dissenting speech and protected speech but only held that it was contrary to Article 1 of the Basic Law.[12]This seems to suggest that any form of political speech irrespective of severity would be punished. The UN Human Rights Committee has warned that any national security related restrictions on speech should present an actual genuine possibility of violent incitement. [13] Chan’s argument that Ma’s one-man peaceful chanting had posed such a threat to the state is tenuous at best. This verdict therefore raises significant concerns regarding the seemingly boundless scope of the NSL.

Impact on free speech

The NSL has attracted international condemnation.[14] A ‘chilling-effect’ would inevitably occur as people would be more careful with what they say due to fear of punishment by the NSL. After the implementation, signs supporting democracy were removed while those supporting the government were allowed to remain[15]; several political parties were dissolved, and activists were arrested[16]; a plethora of the Hong Kong nation have emigrated overseas[17]; school libraries were requested to take down any conflicting books[18]; a few foreign judges such as Lady Hale presiding over the Court of Final Appeal have announced departure owing to reluctance to enforce such nebulous decree[19]; even a reputational newspaper publisher was forced to shut with the owner captured[20].

Attempting to remove the ephemera of freedom Hong Kong has enjoyed will not resolve such tensions, and arguably causes a serious impediment to human development. Such head-on legislation is never preferable; oppression only inexorably promotes more violence and hatred, and thus conduces further tensions. Such suppression of speech through the tyranny of law will be doomed to failure. The oppressed will always look for ways to have their voice heard. In fact, it has already been put into practice by the creative Hong Konger: ‘They carry blank signs or ones with coded messages. They play protest songs but without lyrics.’[21]So, should the next task for the Hong Kong court be to find another way to persecute these actions as an unlawful delict?

Near the end?

From the Extradition Bill to the enforcement of the NSL, people in Hong Kong have found themselves jumping out of the frying pan into the fire. Both decisions in Tong and Ma have sent out a clear message: freedom of speech has been attenuated and the fight is near the end. Ma and Tong certainly will not be the last. With the emergence of a vast diaspora, the current prospect of Hong Kong’s human rights development is pessimistic. It is likely that Hong Kong’s courts will continue to adopt a broader interpretation of the NSL and thus deliver more favourable rulings for the PRC. This would inescapably damage the separation of powers between the judiciary and the executive, and the calamitous loss of confidence in the judiciary of Hong Kong would be the concomitant corollary.

[1]George Orwell, ‘The Freedom of the Press’ The Times Literary Supplement(London, 15 September 1972) 1037–9.

[2]Eric Barendt, Freedom of Speech(2nd edn, OUP 2007)

[3]The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region LN 136 of 2020 (NSL).

[4]CL Lim, ‘The Hong Kong Extradition Bill’ (2020) 136 LQR 19.

[5]NSL, arts 20–30.

[6]NSL, arts 36–38

[7]Tong Ying Kit v HKSAR[2020] HKCFI 2133.

[8]James Pomfret, ‘Free Speech or Secession? “Liberate Hong Kong” at Heart of Landmark Case’ (Reuters, 26 July 2021) <www.reuters.com/world/asia-pacific/free-speech-or-secession-liberate-hong-kong-heart-landmark-case-2021-07-25> accessed 13 December 2021
[9]Timothy McLaughlin, ‘The End of Free Speech in Hong Kong’ (The Atlantic, 27 July 2021) <www.theatlantic.com/international/archive/2021/07/end-free-speech-hong-kong/619577> accessed 13 December 2021.
[10]Tong(n 7) [7].

[11]HKSAR v Ma Chun Man[2021] HKCFI 3132.

[12]Eric Yan-ho Lai and Thomas E Kellogg, ‘NSL Verdict a Major Blow to Free Speech in Hong Kong’ (Lawfare, 19 November 2021) <www.lawfareblog.com/nsl-verdict-major-blow-free-speech-hong-kong> accessed 13 December 2021

[13]ibid.

[14]CL Lim, ‘Hong Kong’s New Law’ (2021) 137 LQR 11.

[15]Reuters, ‘The Impact of the National Security Law on Hong Kong One Year on’ (Reuters, 1 July 2021) <www.reuters.com/world/asia-pacific/impact-national-security-law-hong-kong-one-year-2021-07-01> accessed 14 December 2021.

[16]ibid.

[17]ibid.

[18]Jin Wu and Elaine Yu, ‘What You Can No Longer Say in Hong Kong’ The New York Times (4 September 2020) <www.nytimes.com/interactive/2020/09/04/world/asia/hong-kong-speech.html> accessed 13 December 2021.

[19]Anna Dziedzic, ‘Foreign Judges and Hong Kong’s New National Security Law’ (2020) 25 Com Jud J 27

[20]HKSAR v Lai Chee Ying[2021] HKCFA 3.

[21]Wu and Yu (n 18).

Image source: The Atlantic

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