By Lydia Wong and Thomas E. Kellogg
Last week, Hong Kong took one step closer to its first criminal trial in decades for sedition. On December 3, Judge Stanley Chan announced that, as a judge designated to hear national security cases, he would hear the case against pro-democracy activist Tam Tak-chi.
Judge Chan further decreed that Tam’s trial would begin in May 2021. Barring any change of schedule, he will spend a full eight months in detention before his trial begins.
Though he is being tried for sedition under Hong Kong’s Crimes Ordinance, Tam’s case is inextricably linked to Hong Kong’s new National Security Law (NSL). Tam was originally arrested by the newly-created Department for National Security (DNS), and was initially slated to be tried for NSL crimes. Per the prosecutor’s request, Tam will be tried by an NSL-designated judge. And his case is part of the government’s ongoing campaign to limit free speech in Hong Kong, with a particular focus on key pro-democracy and pro-independence slogans that emerged during the 2019 protest movement.
The recent developments in Tam’s case did not receive the level of attention they deserved, in part because high-profile activists Joshua Wong, Agnes Chow, and Ivan Lam were themselves sentenced to prison for unauthorised assembly earlier that same week. The sentences handed down to Wong, Chow, and Lam – 13 months, 10 months, and 7 months, respectively – were seen by some legal experts as unusually harsh given the charges against them, and raised concerns that political factors may have played a role.
Still, the case against Tam is worthy of attention. It could become the first so-called “speech case” – in which an individual is put on trial solely for words uttered, in this case in the context of a public protest – to go to trial since the National Security Law went into effect on June 30 and the campaign against pro-independence speech began. When Tam’s case resumes in May observers will be looking to see whether he is given a fair trial, and whether the court is able to apply key human rights protections in its judgement.
Tam, 48, is a longtime pro-democracy activist and politician associated with the localist group People’s Power. He was arrested at his home on September 6 by DNS police officers. According to Senior Superintendent Steve Li Kwai-wah, police officers had initially planned to arrest Tam for NSL crimes but then decided that a sedition charge under Hong Kong’s Crimes Ordinance made more sense. The reasons for the switch remain unclear.
In order to prove their sedition charge, prosecutors will have to show his words were intended to “bring hatred or contempt or excite disaffection” against the government, as required by the colonial-era anti-sedition law. Prosecutors have claimed that Tam used such slogans as “Disband the police force,” “Liberate Hong Kong, revolution of our times,” and “Five demands, not one less,” in ways that were seditious and thus criminally actionable. Tam has also been charged with disrupting public order, in connection with his participation in public protests that had not been approved by the Hong Kong police.
There’s a strong argument to be made that Tam never should have been arrested and charged in the first place. He was engaged in acts of peaceful political speech, which – though highly provocative from the Hong Kong government’s perspective – nonetheless are generally protected under international human rights law, which is in turn embedded in Hong Kong law through Article 39 of the Basic Law. If the Hong Kong courts are allowed to make use of international human rights instruments, along with its own Basic Law free expression case law, then it’s hard to see how Tam could be convicted.
Tam’s case is but one element of the government’s ongoing campaign to curtail pro-democracy and pro-independence speech. Since the implementation of the NSL in late June, the government has made vigorous use of the law to limit speech, both directly – through a series of arrests and other measures – and indirectly, through what activists and journalists in Hong Kong have told us is a widespread and pervasive chilling effect on political discourse.
A close look at the NSL arrests that have taken place thus far makes clear that free speech is under threat. A full 22 of the initial 40 NSL arrests have to do with so-called seditious or pro-secessionist speech, or possession of such materials. Of those 22, 16 are “pure” speech cases, such as chanting and displaying pro-independence slogans, and do not involve other alleged crimes. The other six involve a combination of alleged speech crimes and other acts.
In many of these cases, individuals were arrested merely for possessing pro-independence materials, or, like Tam, shouting pro-independence slogans at a public protest. In some cases, individuals were arrested simply because they wore t-shirts bearing the slogan “Liberate Hong Kong,” or used mobile phone cases carrying similar slogans. Such actions no doubt annoy Hong Kong government officials and seem to drive Communist Party officials into a frenzy. But these statements don’t pose any sort of threat to Hong Kong’s governing institutions, much less to Beijing. They should not be subject to criminal prosecution or even arrest.
Indeed, one could argue that the real damage is done by the Hong Kong government’s heavy-handed and overbearing response to such rhetoric. By seeking to stamp out each and every use of the now-banned slogans, the government risks making itself look both authoritarian and faintly ridiculous in the eyes of the Hong Kong public, many of whom have no sympathy for pro-independence statements. The government may have to learn the hard way that it is often better to ignore such statements, rather than to elevate them through repeated condemnation and repression.
As for Tam himself, he will remain in jail at least until May 2021, as he awaits trial. The verdict in his case – and others like it, currently working their way through the system – will be yet another bellwether for the state of human rights and judicial independence in Hong Kong, a telling signal of whether One Country, Two Systems is in terminal decline or whether it might yet be saved, even on the brink of collapse.
Lydia Wong is a pseudonym for a research fellow at the Center for Asian Law. Thomas E. Kellogg is the executive director of GCAL, and also an adjunct professor of law at Georgetown University Law Center.
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