Written by Divija Vaish, a grade 11 student.

In the last two weeks in Hong Kong, almost 500 people have been arrested. The reason? They were using “illegal” slogans to protest against the decision taken to postpone the key elections that should have been held on Sunday.

However, one arrest stands out. This is the arrest of the leading figure of the localist (someone/something that is only concerned with matters regarding their local area) group, People Power, and former DJ, Tam Tak-Chi, who was charged with sedition. Sedition, as described by the Oxford English Dictionary, means conduct or speech inciting people to rebel against the authority of a state or monarch. He was arrested on Sunday by a new Hong Kong police unit formed to investigate national security crimes. Senior superintendent Li Kwai-wah said that Tam was arrested for “uttering seditious words.” 

The case against Tam uses a colonial sedition law that has been on the books since 1938, effectively increasing the fear in the people that they no longer have freedom of speech. The South China Morning Post on Tuesday said it was the first sedition charge since 1997 when Hong Kong was handed over to China.

Since the national security law was passed in Beijing and implemented in Hong Kong on 30 June, 21 people, including pro-democracy media mogul Jimmy Lai and prominent activist Agnes Chow, have been arrested for allegations of “incitement to secession”, “collusion with foreign forces” and “terrorism acts”.

Hong Kong’s administration insists the law has not impinged on the rights to freedom of speech and assembly guaranteed to the territory when it returned to Chinese rule in 1997. 

Yet certain opinions and expressions in previously free-wheeling Hong Kong have become illegal, and activists have spoken of a deep chilling effect that has seen books yanked from libraries and publishers rush to amend their titles.

A brief overview of the law

Against a backdrop of rising hostilities from pro-China forces in the early 20th century, the colonial British government decided to introduce a list of offences – enumerated in the Sedition Ordinance of 1938 – outlawing “hatred or contempt or disaffection” towards the persons of the monarch and the colonial administration. The law later became part of the Crimes Ordinance during reforms in 1971. Currently, offenders convicted of sedition can be punished by a fine of up to HK$5,000 and two years in prison for their first offence.

Typically deployed by the colonial government to target pro-China factions, the legislation has long attracted criticism. Not only do those uttering seditious words face penalties, but those who commit an act with seditious intention or publish anything seditious can also be prosecuted, as can anyone in possession of seditious publications, though they face a lighter fine and shorter jail term.

But since the law’s introduction, the city has put in place the 1991 Hong Kong Bill of Rights Ordinance, which stipulates that local laws must comply with the principles of the UN’s International Covenant on Civil and Political Rights. Under the covenant, limitations to free expression must be necessary, reasonable and well defined.

Before the 1997 handover, Hong Kong’s last colonial legislature was, in principle, in favour of getting rid of the offence before the city returned to China, according to Fu Hualing, law dean of the University of Hong Kong, who wrote the 2005 book National Security and Fundamental Freedoms: Hong Kong’s Article 23 Under Scrutiny.

But accepting the “political reality” that Hong Kong would be duty-bound to enact a national security law after the handover, the legislature made a concession instead by narrowing the scope of the law and stipulating sedition must be accompanied by intention to cause violence or public disorder. However, the scaled-back version was never put in place by the Hong Kong government, according to Fu.