EJ Insight » Hong Kong
Article 1 of the International Covenant on Civil and Political Rights stipulates that “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
The discussion of what happens in 2047 and the nativist and even pro-independence platforms of the city’s new-born democratic groups have apparently panicked Beijing, whose reaction has swayed from mild, amiable dissuasion to fulmination.
Beijing has once again raised the severity of its strictures: an editorial in the overseas edition of the People’s Daily said “several radical groups’ propagating of their Hong Kong independence platforms is proof of substantive actions, contrary to the Chinese constitution and other laws”.
This is a de facto order to the Hong Kong government to tackle the separatists.
There’s little wonder that Secretary for Justice Rimsky Yuen Kwok-keung, who only recently told reporters that “violating the Basic Law may not necessarily be a criminal offence”, had to rush to parrot Beijing’s tone: sovereignty and territorial integrity are “matters of principle” and the government may deal with the issue from four legal perspectives — examining whether separatists are guilty of crimes under the Companies, Societies or Crimes ordinances or any other criminal offences.
Such rhetoric should sound familiar to his Beijing masters, who like to use excuses like “a matter of principle” to circumvent legal fetters when they have a hidden political agenda.
I wonder if Yuen and other senior Hong Kong officials have been given instructions on how to frame a case against young separatists.
Their logic goes like this: freedom of speech has its boundaries, and even western democracies put limitations on people’s rights; you can’t gratuitously shout “fire” in a crowded place and get away with it under the cloak of freedom of speech.
Thus, spreading pro-independence thoughts far exceeds the limits of freedom of speech, and these advocates must be rounded up.
Beijing and its underlings have deliberately distorted the situation.
In 1911, the United States Supreme Court unanimously found guilty, under the Espionage Act of 1917, an antiwar activist who dispatched leaflets urging resistance to induction (Schenck v. United States).
Associate Justice Oliver Wendell Holmes Jr. wrote in the judgment that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic …
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”.
But the court, in another case in 1969 (Brandenburg v. Ohio), substantially narrowed the definition of “a clear and present danger”: it held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action, such as a riot.
Under the new definition, “falsely shouting fire in a theatre and causing a panic” should not be considered a lawless action, as it will be seen as an accident if shouting fire leads to a stampede.
So, how to define “an imminent lawless action”?
In a 1973 case (Hess v. Indiana), the court found that the words of the defendant, charged with violating a statutory provision against disorderly conduct in Indiana when he exhorted a crowd to take to the streets in an anti-Vietnam War protest, did not fall outside the limits of protected speech — in part, because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time”, and therefore did not meet the imminence requirement.
With all these precedents, propagating views or calling for violent activity is not necessarily illegal in the US today, provided that terrorism is not involved and such views and speech won’t lead to “imminent lawless action”.
We all know well that the independence for Hong Kong that people talk about today won’t be realized in the foreseeable future, and there is no “clear and present danger” or “imminent lawless action” that the discussion will entail.
Article 84 of the Basic Law stipulates that “the courts of the Hong Kong Special Administrative Region may refer to precedents of other common law jurisdictions”; thus, the US precedents above can all serve as vital references for local judges.
If a local court declares separatists not guilty of a criminal offence and there is a renewed wave of insults directed at the judiciary, the Hong Kong government will for sure stand with folded arms and respect the “freedom of speech” of these provocateurs.
Not only separatists, like members of the Hong Kong National Party, must never be connived at.
Beijing has censured the parties that support an open referendum, like Youngspiration and Demosistō, in the same breath as the separatists, as it considers self-determination tantamount to seeking independence.
Courts will differentiate among penalties depending on the gravity of the offence charged.
But Beijing has indiscriminately labeled all these groups as traitors, even after some moderate democrats suggested last week a narrower poll that excludes Hong Kong independence as an option.
Beijing, a prisoner of its own extremism, displays a knee-jerk response in fabricating charges, like treason or being an enemy of the state, against its opponents.
What it gets in return are more opponents.
Hence the disputes over approach and stance among democrats will be irrelevant, as Beijing is backing all advocates of self-determination into a corner.
Ultimately the people will be pushed to side with the separatists.
This article appeared in the Hong Kong Economic Journal on Apr. 25.
Translation by Frank Chen
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