After letting it lie dormant for several decades, the Hong Kong government, as part of the current crackdown on the opposition, has dusted off a sedition law under the local crimes ordinance to apply in numerous prosecutions. Public advocacy that had previously passed as legal public protests and critical debate has now been branded sedition. This narrowed public sphere in Hong Kong should be of concern to anyone dealing with the formerly vibrant city.
In the parade of sedition prosecutions, a recent case involving a children’s book about sheep and wolves has attracted bemusement worldwide, as observers puzzle over how a satirical children’s book of cartoons can land its authors in jail for 19 months. Readers are reminded of the case of Bo Yang, who in 1968 was sentenced to nine years in prison during the authoritarian period in Taiwan for simply translating a suggestive Popeye cartoon.
In convicting these children’s book authors, the legal hoops the judge had to jump through to uphold the prosecution’s stance reveals a lot about the wider Hong Kong government agenda to crack down on public debate. Three core elements of the court’s analysis adopted from the government’s case to justify weaponization of the sedition ordinance are of especially grave concern.
The first core concern – one that has been criticized by many, including the UN Human Rights Committee in its recent very critical concluding observations on Hong Kong – is the vagueness of the statutory principles being applied. Defendants in the sheep case raised this with reference to the sedition ordinance’s prohibition on speech “to bring into hatred or contempt or to excite disaffection” or “to promote feelings of ill-will or enmity.”
The judgment simply waves off this vagueness objection by noting that “these are just words with ordinary meaning … best left to the trial judge or jury.” But do such ordinary meanings provide sufficient guidance in judging appropriate limits on speech in public life?
Can a speaker imagine a criticism of government that does not cause some degree of disaffection or ill-will? Would it be possible, if the speaker is employing satire or mocking speech, to effectively advance a public policy argument without running afoul of these vague prohibitions? Certainly, in finding the children’s books’ authors guilty simply in using cartoons to explain contentious politics to children, there is little critical speech not covered by the sedition law.
A second core concern relates to the application of international human rights standards. To the court’s credit it at least mentions human rights – unlike earlier national security-related judgments that have been issued since a new national security law was imposed on Hong Kong. In speech cases involving incitement in the context of national security regulation, the international human rights standard articulated in the Johannesburg Principles emphasizes the protection of free speech, requiring the speaker to intend imminent violence and that such violence be likely to occur.
Instead of applying this standard for intent, the court in the sheep and wolves case jumps over human rights and discusses common law sedition, concluding that it does not impose a requirement that the speaker intends violence.
The court does invoke another comparable set of principles, the Siracusa Principles, in defining “legitimate national security interest” to include protection of “the existence of the nation or its territorial integrity,” but then ignores the strict limits on such regulation the Siracusa Principles require in the free speech context. The court claims that Hong Kong is an exceptional case, such that overseas practice, presumably including the Siracusa Principles, is “of little assistance.”
The Siracusa Principles aim to provide guidance in navigating the boundary between protection of national security and human rights under the ICCPR, a treaty to which Hong Kong has long been bound and that has been fully incorporated in the Hong Kong Bill of Rights and the Basic Law . The limitations dismissed under the heading of Hong Kong exceptionalism include Siracusa requirements that national security cannot be invoked against “local or relatively isolated threats to law and order” or as a “pretext for imposing vague or arbitrary limitation.” The Siracusa Principles emphasize that “violation of human rights undermines true national security.”
It is hard to imagine that these children’s books pose any threat to law and order, local or otherwise.
The third move of core concern that brought these convictions home is a factual one that drives Hong Kong’s much wider growth of prosecutions in the national security and public order areas – with over 10,000 public order and over 200 national security arrests. This relates to the characterization of the massive 2019 protests in Hong Kong, which saw up to 2 million Hong Kong people take to the streets in massive largely peaceful protests.
The court judges that tens of thousands of 2019 protesters “did not recognize the sovereignty of the People’s Republic of China over the HKSAR and did not support the policy of the ‘One Country, Two Systems,'” while supporting calls for “independence and self -determination.” From this characterization it then appears that the defendant book authors, by raising awareness of the protest in children’s books, suffer guilt by association with such allegedly illegal protests.
This view surely underlies the government’s account as to why such extreme measures to crack down on the 2019 protests were justified, but it ignores the reality that most protesters were merely demanding compliance with Basic Law commitments and the rule of law, as reflected in the five demands of the protesters. The five demands had demanded withdrawal of a proposed extradition bill (which would have allowed extradition to the mainland), retraction of the characterization of the protests as riots, release and exoneration of arrested protesters, an independent investigation of police behavior and implementation of the Basic Law commitment to universal suffrage. From public reporting, it appears that a small, frustrated minority were invoking independence, although with no evident capacity to carry forward such demand.
This official view of the protests, which the court fully embraced in its judgment, drives the massive arrests and prosecutions. Might the defendants in this case simply have used a children’s fairy tale to mock the government’s massive crackdown and arrests during and after the 2019 protests, without intending any view on independence?
In the court’s account, “The wolves are the aggressors, and the sheep are the oppressed.” Do the wolves simply symbolize abusive law enforcement and intimidation, leaving the sheep in a quandary as to what is permitted and what is not?
Many commentators and the millions that marched in Hong Kong in 2019 clearly concluded that the Extradition Bill profoundly ignored Basic Law requirements respecting the rule of law and basic rights and further that aggressive law enforcement tactics were being used to silence their protests. Whether officials fully agreed with this assessment or not, the proposed extradition bill, police behavior and the lack of the promised democratic reform were matters of legitimate public concern. Is speaking out on such issues sedition?