The Decibel - How Hong Kong is cracking down on dissent

Episode Date: April 24, 2024

The government in Hong Kong recently voted to pass a new national security law, referred to as Article 23. It includes seven new offences related to sedition, treason and state secrets, and is expected to have a chilling effect on protest. A number of countries, including Canada, denounced the law before it was passed, saying it’s too broad and risks undermining human rights.James Griffiths, The Globe’s Asia Correspondent, is on the show to discuss Article 23 – what it is, how it’s affecting people in Hong Kong and who is most at risk.Questions? Comments? Ideas? Email us at [e-mail]

The protests of 2019 were the largest unrest Hong Kong's seen in its history, and even dating back to the colonial era. James Griffiths is The Globe's Asia correspondent, based in Hong Kong. This was months of incredibly large-scale, often very violent protests, which sprang out of initially opposition to a proposed extradition bill with China, but became this much wider movement for kind of pro-democracy causes

and against police brutality. Protesters were fighting pitch battles on the police, protesters throwing molotov cocktails and being met with non-lethal rounds and water cannon. An estimated two million people descended into the streets of the city during these demonstrations. The protests were eventually quashed by a 2020 national security law imposed by Beijing.

Now, Hong Kong has passed another law meant to root out what it calls seditious activity. Sedition is generally understood as any speech or action that incites rebellion. But Hong Kong has taken a much wider approach to that concept than most countries. And this new law, called Article 23, got a very different reaction from the public. There was no reaction. You know, privately, people were very concerned and there was a lot of kind of fear about this new law,

but there was no public response. There was no mass protests. The previous national security law means that mass protest is no longer allowed. Today, James is on the show to explain what's different with Article 23, how it's expected to change Hong Kong, and who's most at risk. I'm Mainika Raman-Wilms, and this is The Decibel from The Globe and Mail. James, thanks for being here. Thanks for having me.

So James, to begin here, why is this legislation worth talking about? Why is it so significant? So Article 23, the name itself refers to an item in the Hong Kong Basic Law, which is the city's constitution, which states that the Hong Kong government shall enact on its own a law to prevent treason, secession, sedition, subversion, and theft of state secrets, among other things. So the new Article 23 law is incredibly broad. It creates a host of new offenses, many with really severe penalties, some life imprisonment penalties. And it has a scope to really affect a lot of people in Hong Kong. One of the main offenses is sedition under the act. It updates this colonial era sedition law, which has been used a lot recently. But it takes the penalty from that from two years to 10 years. And people have been charged with sedition for comparatively minor acts, you know, such as chancing a pro-democracy slogan or playing

a pro-democracy anthem. Yeah. Okay. So because a lot of countries have laws against sedition, right? But it sounds like this one in particular is much more extreme than a lot of other countries would have. Absolutely. And the Hong Kong government has pointed to other countries laws, including Canada's own national security legislation to say that, look, we're not doing anything that's different from other countries. But the fact of the matter remains that you just wouldn't be prosecuted for a lot of these offenses in most most Western democracies. You could not imagine someone being brought up on sedition charges in Canada for chanting a six-word slogan, which I can't repeat because that would be against the law. That couldn't happen, both because I think a judge would throw it out point blank,

and then there would be constitutional protections for free speech, which would kick in. And the same when they talk about national security legislation in various European countries. Yes, that legislation might be quite strict on paper, but it is subject to the European Convention on Human Rights and subject to other protections. Whereas ultimately, Hong Kong courts have already interpreted national security legislation very broadly. And even if they don't, if they are narrower or more liberal than the Hong Kong government likes, these cases can ultimately be appealed to Beijing, and Beijing can decide how they should be interpreted.

I just want to quickly clarify, James, Article 23 is a section of Hong Kong's constitution called the Basic Law. And so it is the section that deals with sedition. But the actual law that was passed has a different name, but essentially, they're like the same thing. Yeah. I mean, most people will use Article 23 as shorthand to refer to this new law, which is technically the Safeguarding National Security Ordinance. OK. You touched on this a little bit, James, but let me ask you directly.

How was sedition understood in Hong Kong prior to this new legislation, this Article 23? So there was a sedition law on the books, which dates back to the British colonial era, but it basically hadn't been used for decades until 2020. And there was a court case which interpreted it as that police could use some of their new national security powers under the Beijing-imposed law to prosecute sedition. And prosecutors seemed to quickly decide that sedition was actually a much easier offense to charge people with. Sedition is a very loosely defined word, you know, in the dictionary, let alone under the law. And so it was something that you could go after all kinds of vague criticism of the government, or there's this term that Hong Kong officials like to use a lot called, quote, soft resistance,

which they've never really defined and can seem to mean any kind of criticism or pushback against government policies. And so how different is Article 23 from the national security law, the one that was passed in 2020? In practice, the national security law has changed Hong Kong society dramatically, and it has had this huge sweeping effect. It's essentially dismantled the opposition movement, the pro-democracy movement. But if you're an individual person, you know, even if you're someone with very kind of anti-government views, it was relatively easy to avoid prosecution under the national security law. It was, you know, something that could be understood to be targeting kind of high profile activists and things like

that. Article 23 is much broader in scope. You know, the government says it's filling these, quote, loopholes in the law, but it massively expands the type of national security offense that one could be charged with. And that could even mean things like officials have said, if you own a copy of the Apple Daily newspaper, which has been deemed to be seditious, you could be charged with sedition for having that copy unless you have what they say is a reasonable excuse, which basically means you have it in order to criticize it or something like, you know, you have it in order to warn people away from this horrible newspaper. The scope for people being charged under this law is much,

much greater than under the national security law. And James, I also understand that bringing Article 23 into effect might not actually have been possible without the 2020 national security law. Can you explain that? For a long time, this has been unfulfilled, this part of the constitution. They tried in 2003 to pass a law, but there was a lot of concern around it. It sparked mass protests and they gave up. And then essentially after that, for two decades, various governments would gesture towards passing Article 23, but never really followed through on it because the sense was this would have such massive public reaction and fear that they never followed through on it. But following mass protests in 2019 and the national security

law the year later, which was imposed directly on Hong Kong by Beijing, that really wiped out the civil society in Hong Kong and wiped out the pro-democracy movement. So in the wake of the 2020 national security law, as well as mass arrests. There was also several new laws were brought in to change Hong Kong's political system. So to make all of the legislative seats and even lower level kind of district level, you know, kind of councillor seats are all now, quote, patriots only. And that has meant that they're all vetted, all of these legislators are vetted in advance, and are guaranteed to be pro-government and to follow in line when the government tries to pass something. But in the past, while pro-democracy lawmakers never had a majority in the legislature, they were able to block laws and they were able to kind of filibuster

forever on a law and also use that to rally public opposition and have protests, which sometimes would have made pro-government lawmakers concerned because some of them are democratically elected. Now, they don't really need to worry about getting elected so much. It's much easier for them to pass a law that's widely unpopular. All right. So let's dig into this a little bit more. Two of the key offenses that are laid out in this legislation are about sedition and influence, I guess, from outside forces, external forces. We've talked about what a seditious act could be. But what about the external forces part of this, James? Can you,

I guess, yeah, just tell me more about that. So this is somewhat difficult to describe because it is so broadly written that it's going to be one of those things that we understand in practice rather than reading the law. But the language around external forces essentially encompasses almost any foreign actor. So NGOs, political parties, you know, in the past, there was a lot of pro-democracy NGOs would be involved in Hong Kong or, you know, consulates would offer support for things like pro-LGBT campaigns and things like that. That would definitely not happen under this new law. I mean, you know, it would be far too dangerous. We can assume the only place we can look for a model for this is China, and China has similar laws, and China has really cracked down on the role of foreign NGOs in China.

So even on things like environmental movement or pushing feminist causes, things that aren't something that would challenge the government necessarily, those are essentially illegal in China or very, very dangerous. Oh, yeah. And I guess I should ask, who's the arbiter here? Who gets to make the call that someone has been seditious or been colluding with external forces? Who gets to decide? If there are prosecutions under this law, they will most likely go to a handpicked circle of national security judges who were chosen by Hong Kong's chief executive.

Currently, there is 100% conviction rate under the national security law who were chosen by Hong Kong's chief executive. Currently, there is 100% conviction rate under the national security law. 100% conviction. 100%. Yeah. And obviously, we haven't had any convictions, any prosecutions under this new law, because it's only a few weeks old. So far, the city's courts have been incredibly strict in how they interpret the national security law and the colonial era sedition law. There's no reason to think that they will be more liberal when it comes to applying the new law. And even if they are, Hong Kong's legal system is structured so that while there is a court which is maybe misleadingly named the Court of

Final Appeal, the government can actually appeal cases in that court to China's National People's Congress, which is the Chinese rubber stamp parliament. And that can then, quote, reinterpret the city's basic law to say, actually, no, you should have decided the case this way. And then because that's a constitutional decision, judges have no choice but to apply it in the way that the NPC decided. So, you know, ultimately, the ultimate arbiter of any case in Hong Kong is Beijing. We'll be back in a minute. So, James, we've talked about Article 23 kind of in the individual sense for individual acts, but the media is also really worried here, too.

Why are journalists worried? So there's two aspects in particular of the bill that are of great concern to journalists and various groups like the Hong Kong Journalists Association and Reporters Without Borders and similar organizations have expressed severe concern and urged the government not to pass this law before it came into force. And those are around firstly state secrets, because the language around state secrets is very broad. It's very similar to China, where state secrets legislation has been used to prosecute journalists in the past for sharing, say, a secret speech that was given by a politician. The other concerns are potentially some of the language around sedition could be applied to when you're quoting someone, especially, say, an overseas critic of the Hong

Kong government, because there's a lot of prominent Hong Kong activists who are now in exile, some of whom are fugitives from the Hong Kong government. And then finally, for foreign media or for media that gets funding or support from overseas, obviously, the external forces language comes into effect. So Radio Free Asia, which receives money indirectly from the US government, they quit Hong Kong before the law even came into force because they'd already been singled out by Hong Kong officials as an external force. And the writing was on the wall for them. Were they to stay, it was very likely that they might have been prosecuted. And so they've left Hong Kong. They've mostly moved to Taiwan.

And I guess what could happen to a journalist if they're found to have contravened these laws? I mean, some of the worst offenses have life in prison. I think it's probably less likely that a journalist would be charged with that type of offense. But, you know, a sedition offense comes with up to 10 years, state secrets can be years in prison. And any offense where a defendant is found to have acted in collusion with an external force adds about three to four years to the conviction. So if Radio Free Asia had stayed in Hong Kong and they were found to have been seditious and acting with an external force because of their funding from the U.S. government, that could have been 13, 14 years in prison for that person. Wow. Do we have a sense? Are there some journalists who are, I guess, more at risk than others? It's hard to know because on one hand, obviously, the law is very concerning.

And we can look at how China has prosecuted journalists in the past. On the other, the Hong Kong government does insist that, you know, quote, legitimate reporters have nothing to fear. Particularly, there will be concerned for people that work for, say, a public funded broadcaster from another country. So things like the BBC and CBC doesn't have a presence in Hong Kong. But, you know, that type of organization, because, you know, there obviously is a link through your funding to a foreign government. So government funded media. Yeah. For a privately funded media organization like, say, the Global Mail, we would hope that that would never be defined as an external force. But again, we don't really know. And it is concerning. I mean, James, can I ask, you're based in Hong Kong, obviously,

how are you feeling about all of that? I was often asked that question when the national security law came into force and would kind of confidently say, while this had a huge effect on Hong Kong, it didn't really affect me per se, that this was something that was, particularly as a foreign journalist in Hong Kong, it didn't really affect me per se, that this was something that was, particularly as a foreign journalist in Hong Kong, was relative easy to navigate. I never was concerned about anything that I published would be in contravention of the national security law. Article 23 will be more difficult to navigate. You can't get away from that. The language is so much broader. The offenses are kind of so much more varied and numerous. I don't want to kind of sound kind of arrogant and narcissistic enough to be like, oh, you know, that I will be kind of so much more varied and numerous. I don't want to kind of sound kind of arrogant and

narcissistic enough to be like, oh, you know, that I will be kind of particularly at risk, particularly definitely not compared to friends and colleagues in the Hong Kong media. But at the same time, I do think foreign media, myself included, are much more at risk than we were, you know, in February before this law came into force. That's just, you can't get away from that. While we're talking here, I want to ask you about the trial of Jimmy Lai. This is, of course, a big national security trial happening in Hong Kong. This is a newspaper publisher, Jimmy Lai, who is on trial for breaking the 2020 law. James, I guess, how does this play into the context of Article 23? Well, as well as being charged under the

national security law, Jimmy Lai is facing charges of sedition under the colonial era legislation. So the decision in that case, which his lawyers believe is predetermined and think that there's no way that he'll possibly win this case, the decision in that case will have an effect on how Article 23 is applied, because it will be another piece of sedition case law. And obviously, Apple Daily was such a huge newspaper. There were a lot of people that worked for it. This was his newspaper, yeah. Yeah. A lot of people have copies of Apple Daily, kind of historic front pages that they have at

home, which the government has already warned could be deemed seditious. Another thing we've learned from the Jimmy Lai trial and some other national security trials as well, is the degree to which these laws can be applied retroactively. According to legislation, they aren't retroactive. The courts have interpreted them as such to say that you can have a continuing offence. So you can have an offence which was technically began before the law came into force, so obviously couldn't be prosecuted back then, but is continuing. And one of the things they've said is that, particularly in the Jimmy Lai case, is he lobbied for sanctions against Hong Kong. Those sanctions are still in force,

and therefore he is continuing to commit the original offense of lobbying for these sanctions, even though when he originally lobbied for them, that wasn't legal. Wow. I mean, this is kind of theoretical at this point, but are there any known defenses for someone who is charged under Article 23? There is a public interest defense of sorts under the law, which the government has kind of pointed to when journalists have expressed concern. But it's quite narrowly written, and it's something that we'll have to see how that's interpreted in cases going forward. When it comes to sedition, the courts have already kind of ruled that that can be applied very broadly, that you don't need to be

promoting violence or promoting another illegal act to be convicted of sedition. And so, you know, that is the type of defense that a journalist might have used in another jurisdiction, right? That, you know, fine, this column was seditious, but it was not calling for people to act illegally or to do any violence, the courts have already decided and the government has endorsed the fact that no, you don't need to be calling for violence. You can still be committing sedition just by saying something. So can anything be done to soften the effects of the law? This gets us to an interesting point because, I mean, A, I don't really know. And B, there is, you know, to talk about how broad this law is, I think there is an extent to which that were I to speculate and to kind of think of things that could be done, especially if

we were to kind of speculate about things foreign countries might do in response to this law, that would potentially be in contravention of the law. I can talk about some actions which have been taken. Yeah, let's talk about that then. What's been done in response? So the US government has sanctioned Hong Kong officials since the law came into force. A lot of governments have obviously denounced it. The UN has denounced it. Human rights groups have all denounced it. The US sanctions follow up on a raft of sanctions that were imposed from 2019 following the national security law in 2020. It's hard to see how they will really have any effect. They mostly kind of bar Hong Kong officials who had no intention of traveling to the US from doing so. And China is

very defiant. I mean, China does not respond well to sanctions. I mean, few countries respond well to sanctions, but China particularly, you know, regards these as Western meddling, as denounced, you know, various foreign governments for trying to interfere in Hong Kong's internal affairs. Just very lastly here, James, I mean, you've been in Hong Kong for about a decade now. When you take a step back and look at these laws, I guess, what is the overall impact of them on Hong Kong? The Hong Kong of today is incredibly different to the Hong Kong that I moved to in 2014. Not just the idea that there was a huge civil society movement in 2014. That's when we had the umbrella movement coming into 2019, the huge process then. The elections have gone away. The protests have gone away.

Civil society has largely gone away. And while obviously that is a huge change, there's also a degree to which the character of the city has changed. Hong Kong used to be a very optimistic place and a place that was very vibrant and people were passionate about changing the city for the better. And a lot of that's seeped away. Hundreds of thousands of people have left. Those that do remain have checked out politically or are very pessimistic about the future. And it can feel often like a very oppressive and depressing place to be at times. James, thank you for taking the time to be here. Thank you. That's it for today.

I'm Maina Karaman-Wilms. Our intern is Raisa Alibi. Our producers are Madeline White, Cheryl Sutherland, and Rachel Leaman-Wilms. Our intern is Raisa Alibi. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pachenza is our executive editor.

Thanks so much for listening, and I'll talk to you tomorrow.