‘The chilling effect’: Where does the Stand News verdict leave opinion writers in Hong Kong?
Hong Kong Free Press
Well, now that it’s over and we can comment on the Stand News case, we may note first of all the existence of a concept common in the academic circles where the fine points of free speech are explored: the chilling effect.
This refers to the tendency for expansively drafted laws restricting free speech for impeccable reasons to have an effect beyond the territory they are aimed at; the new rules restrict or discourage activities which they were, at least as presented by their drafter, not supposed to cover.
The chilling effect is alive and well in Hong Kong, and drastically curtailing the sort of journalism to which local consumers have access. Outside the government’s cheerleader chorus writing for government-approved media, opinion writing has become a rare and nervous activity.
If it is written, editors are nervous about running it. Willing writers are on offer overseas, but publishers are unsure of the legal risks of using such sources, so offers are usually refused.
We are often told that publications merely have to obey the law, which is well known and perfectly clear. Oh yes? Yet in the Stand News case, Judge Kwok Wai-kin acknowledged that in an earlier judgment on the “sheep village” books he had said that sedition must involve intentionally inciting others. He has now changed his mind, and the offence requires mere “recklessness of the consequences.” So all you suckers who perused the earlier judgment in the hope of finding out exactly what the law was were wasting your time.
In fact, if you are interested, even perusing the law itself is not much help. Traditionally it was supposed that seditious content must be so extreme as possibly to inspire violence. If violence was not implicitly advocated there was no sedition. This condition has apparently lapsed. It is in any case specifically excluded by the relevant part of the Safeguarding National Security Ordinance, where the revised law on sedition now resides.
The law is ostensibly politically neutral. Social critics can say that if you outlaw resistance you are defending the status quo, but the idea of sedition looks only at public order consequences. You would not, however, gather this from looking at the output of its local defenders.
Virginia Lee, writing in the English-language version of the China Daily, notes that the Stand News output was scrutinised for “illegal ideologies.” Goodness. Last time I was in Festival Walk’s excellent bookshop, I noted with some amusement that on one shelf potential readers could consider the works of Karl Marx, Adolf Hitler and Donald Trump. So which ideologies are illegal?
Fu Kin-chi, writing in the same publication, elucidates: the court “determined that the media outlet’s political ideology was ‘localism’ and its editorial policy was to promote ‘local autonomy’ in Hong Kong – both terms are an [?] euphemism for ‘Hong Kong independence’.”
I am not sure whether the equation of localism with independence was part of the court’s determination or Fu’s, but in either case it is bilge. Localism, for many of its followers, was more cultural than political: an attempt to preserve Hong Kong’s language and lifestyle from overzealous attempts at updating and aligning with mainland China.
Most of those who took a more political angle did not seek independence, whose practical difficulties and general implausibility were obvious. Local autonomy is not the same thing as independence and attempts to obliterate the difference are just an attempt to give a dog a bad name before hanging it.
Returning to the old definition of sedition, this involved efforts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. There is nothing about illegal ideologies there. This was long supposed to set a high bar for the prosecution. Hatred is an extreme emotion.
Many, perhaps most, people do not have strong enough feelings about political or constitutional matters to “hate” anything. Mere distaste or criticism was not enough. The words complained of must actively encourage resistance or rebellion.
National security judges have steadily diluted this to the point where vigorous criticism of one piece of legislation is enough, especially if it happens to be the national security law.
The definition in the new Safeguarding National Security Ordinance has been diluted even more. Protection is extended to a new range of potential victims, including the local Liaison Office, the local branch of the Ministry of Foreign Affairs and the local PLA garrison. We then go through much the same verbiage as in the old Crimes Ordinance section on this topic, until we come to two new bits:
(e) an intention to incite any other person to do a violent act in the HKSAR;
(f) an intention to incite any other person to do an act that does not comply with the law of the HKSAR or that does not obey an order issued under the law of the HKSAR.
Connoisseurs of carelessly drafted legislation will note that (f) is open to very wide interpretation. I did not realise, the other week, when I wrote that owners of small dogs and suitable bags could travel with them on the MTR in defiance of the railway rules, that this was a possible offence. Does an “order issued under the law” cover anything a policeman says to you?
Clearly this new law received all the careful scrutiny you would expect from a friends-only legislature working in a hurry. Nice work.
But I don’t hate you.
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