Greater clarity is needed on the issue of collecting publications
- Working out what is seditious and what is not under the law is the problem. People need to know so they can live their lives accordingly
The process for passing Hong Kong’s domestic national security law is moving at a breathtaking pace. Much of the focus has been on new provisions. But questions have also been raised about a law already in place.
Possession of seditious publications is a crime that will not change much under the government’s proposals. But the maximum penalty is to be increased from 12 months imprisonment to three years.
This has prompted some residents to wonder if their collections of books, newspapers or other publications, as well as digital content, may fall foul of the law.
Officials have stressed the offence is only committed if there is knowledge the material is seditious. And it is a defence if you have a reasonable excuse. The problem is working out what is seditious and what is not. There is no cause for undue alarm. But this is one of the many areas of the bill where greater clarity is needed.
The broader sedition law, focusing on the use of words, was not used by the authorities for decades. It was revived after the passing by Beijing of an overarching national security law for Hong Kong in 2020, following months of civil unrest. Jail terms have been imposed for offences ranging from wearing a T-shirt calling for Hong Kong’s “liberation” to importing a children’s book found by a court to “discredit and vilify” the authorities.
All you need to know about Hong Kong’s domestic security law
There have long been calls for the sedition law to be modernised and its scope narrowed, in accordance with the trend elsewhere. The Bar Association suggested this during the public consultation on the new laws.
But the government has, sadly, not adopted the association’s suggestion there should be a requirement that offenders have knowledge of “a likelihood that violence, disobedience to the law or breach of the peace may occur”.
Officials argue the use of non-violent words can still be damaging to the city and might, in time, lead to riots.
Some light was shone on the question of what constitutes sedition in a Court of Appeal judgment delivered earlier this month.
The court rejected a bid by activist Tam Tak-chi to have his convictions for uttering seditious words overturned. His lawyers argued the existing sedition provisions are too vague and impose a disproportionate restriction on freedom of expression. This judgment came two years after Tam’s conviction and eight months after the appeal hearing began. It has taken too long, especially as the outcome had the potential to affect many other cases.
The court ruled sedition laws must “set clear parameters for what is seditious and what is not”. But the judges added there must also be sufficient flexibility to ensure it can effectively combat threats to national security.
Ultimately, the court found the law to strike the right balance. The judges elaborated on the meaning of broad terms used to define a seditious intention, including the incitement of hatred, contempt, disaffection, discontent, or feelings of ill will and enmity.
They said the aim was to prohibit words intended to seriously undermine the legitimacy of the government, constitutional order or administration of justice, or seriously harm the relationship between the government and the people or among Hong Kong residents.
Some comfort might be found from the court’s reassurance that merely criticising the government or the courts or raising objections to government policies “however strong, vigorous or critical they may be” do not amount to seditious intention.
It will be interesting to see if the case is taken to the Court of Final Appeal. A definitive ruling on the constitutionality of the sedition law would be helpful, even though a slightly amended version of it is on the way.
Even after reading the court judgment, I am not entirely sure whether any of the material I gathered when living and working as a journalist in Hong Kong would be deemed seditious. Greater clarity is still required, so that people can regulate their lives accordingly and Hong Kong’s precious free flow of information is not unduly curbed.
