Hong Kong says its courts should defer to government in ‘national security’ cases
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People raise their hands as they sing and listen to the protest anthem “Glory to Hong Kong” during an anti-government demonstration in Hong Kong, China, Nov. 30, 2019.
The Hong Kong government has said that a judge in the city made “an error” in denying an injunction on disseminating a banned protest anthem, and that courts should defer to the executive in matters of “national security.”
The city’s Department of Justice said on Monday it will appeal a court decision not to grant an injunction banning all reference to Glory to Hong Kong, an anthem of the 2019 protest movement, online and offline, after its application was rejected by the Court of First Instance.
Judge Anthony Chan had ruled that an injunction, which the government wanted to include online platforms visible from Hong Kong, would be unnecessary, as the use of the song is already covered by existing criminal laws, including the 2020 national security law banning public criticism of the government.
The government had wanted the court to grant the ban on broadcasting or distributing the song, which it says advocates “independence” for the city, and which has been mistakenly played at international sporting events instead of the Chinese anthem, “March of the Volunteers.”
In a move that undercuts the judicial independence promised to the city by China, it is now appealing on the basis that Chan’s ruling was “in error,” and that judges should “defer” to the executive when making their decisions.
“The learned Judge erred in failing to take into account the overriding principle that national security is of the highest importance, which must be followed when discharging the Judiciary’s constitutional duty to effectively prevent, suppress and impose punishment for any act or activity endangering national security,” the appeal document said. “This is a constitutional duty imposed by a national law.”
“The learned Judge erred in failing … to give any or sufficient deference to the executive’s assessment on the necessity, effectiveness and utility of the Injunction,” the document said, citing the court’s “lack of institutional capacity and expertise to make such evaluative judgment.”
“Where it is the assessment of the executive authorities that a proposed measure is necessary or may be effective or have utility, the Court should accord due weight and deference to such assessment,” it said.
Hong Kong was promised a “high degree of autonomy” under the terms of its 1997 return to Chinese rule, within the “one country, two systems” framework agreed between British and Chinese officials and enshrined in its mini-constitution, the Basic Law.
1984 pact broken
The 1984 Sino-British Joint Declaration treaty also promised that the city’s way of life – including an independent judiciary – would remain unchanged for 50 years, although Chinese officials have since said they are no longer bound by it.
Chinese officials have been speaking for years against the separation of powers — a mechanism found in liberal democracies to ensure that lawmakers and judicial systems remain free of executive control.
After Beijing imposed the national security law on the city in 2020, Hong Kong officials started to follow suit.
“Our executive, legislative, and judicial arms of government aren’t separate as they would be … in a constitutional political system,” then chief executive Carrie Lam said in September 2020. “Any power we enjoy here in Hong Kong is granted to us by the central leadership [in Beijing].”
The appeal document also reveals one of the key reasons that the government wanted the injunction in the first place — to get it removed from online platforms, where it is often referred to as the “Hong Kong National Anthem.”
“The Song remains freely available in the internet and remains prevalent … many of the people disseminate the Song used pseudo-names,” it said.
“Major [internet platforms] are only willing to remove … content from their platforms with the production of a valid court order demonstrating that … [the] misrepresentation of the Song as the national anthem of Hong Kong … is unlawful,” it said.
So far, Hong Kong has largely escaped the wide-ranging and constant government censorship seen behind China’s Great Firewall, despite an ongoing crackdown on public dissent and criticism of the government under a draconian national security law.
Downloads of “Glory to Hong Kong” spiked on international streaming platforms – before it was removed from some music services soon after the government announced it would seek the injunction in June.
“The learned Judge was wrong in finding that the ‘chilling effects’ cannot be dismissed when the Injunction is aimed at acts and activities which are unlawful and endanger national security,” the appeal document said.
More like the mainland
Current affairs commentator Sang Pu said the use of such arguments in the appeal shows that the government is looking for ways to further subordinate the judiciary to the executive, drawing a parallel with the way things already work in mainland China.
“The whole point of the ‘Glory to Hong Kong’ case isn’t to get the song taken down,” Sang Pu said. “It’s about the courts and the judiciary.”
“[The appeal argument] is tantamount to saying that the courts must comply with whatever the Hong Kong Special Administrative Region government asks of them,” he said. “It’s about gradually forcing the Hong Kong judiciary … to obey orders from the government.”
Legal scholar Kevin Yam said the judge was “brave” to make the ruling he did in the first place.
“The [judge] totally understood the importance of the national security law in the original ruling,” Yam said.
“But now the Hong Kong government has now taken the idea that there should be a bit more weight given to what the executive wants … and conflated it with the very different idea that the executive should totally override the judiciary,” Yam said.
“This is a distortion of some very basic principles,” he said.
Judicial independence was named as one of seven “taboos” in an internal party ideological directive issued in 2013, shortly after ruling Chinese Communist Party leader Xi Jinping took power.
Other banned topics include press freedom, civil society, citizens’ rights, the historical mistakes of the Chinese Communist Party and talking about the financial and political elite.
Translated by Luisetta Mudie.
