By Jerome A. Cohen
Tam Tak-chi. Photo: Tam Tak-chi, via Facebook.
Earlier this week, the activist Tam Tak-chi was denied bail after being charged with “uttering seditious words and disorderly conduct.” Tam is reportedly the first person charged with sedition in Hong Kong since its 1997 “handover” to China. There is a risk for the Hong Kong government in bringing this case under pre-existing local sedition legislation, since the facts cry out for judicial protection of speech, and the HK courts may seize the occasion to demonstrate that, no matter the constraints imposed on them by the new National Security Law (NSL), when not under the NSL, they still maintain their independence despite HK’s newly-repressive climate. Two points are worth emphasizing.
First, it would be interesting to know how the decision to prosecute was made in the Department of Justice (DOJ), specifically whether it was approved by the current Director of Public Prosecutions, who has announced his resignation as of the end of the year because of apparent DOJ refusal to allow him, rather than the special NSL group newly-established within the office, to deal with NSL cases. He reportedly hasn’t even been allowed to know about NSL decisions concerning prosecution until they have been made. I wonder how optimistic he is about the successful prosecution of Tam under ordinary, pre-NSL HK law.
The second point to focus on is the denial of bail, which to me is the most immediately disturbing aspect of the case. I hope to know what’s been made public about the denial of bail and whether the bail appeal process has now run its course. The outcome of the legal contest that lies ahead is uncertain and will tell us a lot about the impact of recent events on HK’s judiciary and the extent to which Beijing will tolerate HK judges’ independent responses to the new challenges. In the interim, however, this HK political activist will be detained in jail, at least for two more months, and is already being punished long before it is determined whether he deserves it. This certainly prevents him from further exercising freedom of speech, inhibits his full opportunity to fashion his legal defense and disrupts his normal life and work and that of his family and colleagues. The prosecution power is a dreadful one.