NSL Verdict a Major Blow to Free Speech in Hong Kong
Human rights have taken another major step backward in Hong Kong. On Nov. 11, activist Ma Chun-man, 31, was sentenced to 5 years and 9 months in prison for inciting secession under Hong Kong’s draconian new National Security Law. Ma is only the second person to be convicted of a NSL crime. But with at least 84 Hong Kongers awaiting trial on a range of NSL charges, he almost certainly won’t be the last.
Ma is known to many in Hong Kong as Captain America 2.0, after the American superhero costume he wore during the 2019 pro-democracy protests. His crimes, however, stem from his actions in early 2020, in the months following the June 30 implementation of the NSL. Ma’s actions following the law’s implementation indicate his desire to become a test case for free speech. For months after the law went into effect, Ma mounted his own one-person protests, chanting various slogans from the protest movement, including the now-famous phrase, “Liberate Hong Kong, Revolution of Our Times.” At times, Ma chanted even more controversial phrases, such as “Hong Kong independence, the only way out” and “Hong Kong people, establish our state.”
It was only a matter of time before Ma was arrested. Government officials had clearly signaled that many of the key protest movement slogans were now forbidden and that those who ignored the ban would be prosecuted. Ma was arrested several times for his protest actions, but he failed to heed the clear warning from the police. Instead, he returned to his public chants each time after being released on bail, virtually daring the government to put him on trial over his peaceful political speech. Finally, in late November 2020, he was arrested for a sixth and final time and was quickly charged with inciting secession. He was then held without bail for nearly a year before his trial began.
Ma’s defense to the charge against him was simple: His right to free speech was protected under the Basic Law, Hong Kong’s mini-constitution, which meant that he could not be punished merely for chanting slogans that the government didn’t like. Ma’s lawyer also argued in court that Ma’s actions lacked the requisite intent, as Ma made clear in media interviews before his November arrest that his goal was not to incite others to take revolutionary action but merely to prove that he could still exercise his free speech rights.
The court’s verdict, released on Oct. 25, can be described only as a disappointment. Judge Stanley Chan largely ignored the defense’s rights arguments, blithely declaring that all rights have limits, and that Ma’s speech fell outside the realm of protected speech. Disturbingly, Chan failed to draw any analytical lines between protected speech that touches on controversial subjects and speech that crosses the line. Instead, Chan highlighted the prosecution’s reference to Article 1 of the Basic Law, which notes that Hong Kong is “inseparable” from the People’s Republic of China. By linking Ma’s speech directly to Article 1, Chan seemed to suggest that any form of pro-independence speech—no matter how mild or nonviolent—would run afoul of the NSL and could be criminally punished.
Chan may be right to point out that all rights have legal limits; for example, no one has the right to yell fire in a crowded theater. At the same time, however, Ma Chun-man is right to point out that the Basic Law protects his right to free speech. And the Basic Law itself makes clear how his free speech rights should be defined and limited: through international human rights law, including the International Covenant on Civil and Political Rights (ICCPR).
According to Article 39 of the Basic Law, the ICCPR “remains in force” in Hong Kong. Article 39(2) in particular states that restrictions on rights must be consistent with the covenant.
Generally speaking, the U.N. Human Rights Committee, which is charged with overseeing implementation of the ICCPR, has stated that national security-related restrictions on free speech must be narrowly tailored, and directly related to a specific and genuine national security threat. Ma’s sloganeering may well have proved politically inconvenient to Hong Kong government officials anxious to please their superiors in Beijing. But as Ma himself pointed out prior to his arrest, it’s hard to argue that his public speech constituted a genuine threat to Hong Kong’s political system.
International human rights law experts have taken ICCPR jurisprudence one step further. The 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, drafted by a group of leading international law experts, hold that speech can be criminalized only if the speaker had an intent to incite imminent violence that is likely to succeed. Although the Johannesburg Principles are not themselves international law, they are a relevant source of expert guidance that a number of national governments and courts have drawn upon. As recently as 2003, the Hong Kong government has itself made reference to the Johannesburg Principles, calling them “a useful benchmark” for evaluating new national security legislation.
The court’s failure to grapple with international human rights law, and even with key domestic free speech jurisprudence, sends a clear message: NSL trials have been conducted in a constitutional rights-free zone. This leaves the government with a free hand to arrest not just peaceful political protesters like Ma but also opposition politicians and leading journalists whose criticisms have raised the ire of the Communist Party leadership in Beijing.
The poor quality of the Ma verdict is also likely a product of the extreme political pressure the Hong Kong judicial system faces. If the judiciary fails to deliver verdicts that Beijing finds satisfactory in key NSL cases, then the party could take steps to further curtail the courts’ constitutional powers, in ways that could resonate for years to come.
And yet, there is a real downside to the court’s one-sided approach to NSL cases. As the courts are pressed to deliver ever more favorable verdicts to the government, they are seen as less institutionally independent, and public trust in Hong Kong’s world-class judiciary declines. Public confidence in the courts can be difficult to win back, and can make effective governance in Hong Kong all the more difficult. The Hong Kong government—and by extension, Beijing—should ask whether further damage to the political system’s governing legitimacy is truly worth it, especially in the absence of any apparent ongoing threat to national security.
Any effort by the courts to return to a more rights-conscious approach may come too late for Ma Chun-man himself. Though [he has 28 days to decide whether appeal or not] , Ma now faces the very real prospect of spending 5 years and 9 months in prison, merely for peacefully chanting slogans that were, not too long ago, part of the fabric of everyday life in Hong Kong. If [he decides to file an appeal and if] his conviction is upheld on appeal, his imprisonment will serve as a signal of free speech’s end in Hong Kong.
(Co-authored with Thomas E. Kellogg, originally published in Lawfare on 19 November 2021, available at: https://www.lawfareblog.com/nsl-verdict-major-blow-free-speech-hong-kong)