Hong Kong’s chief executive – not the city’s courts – should have the “greatest weight” in national security matters, the government has said as it seeks to challenge the High Court’s refusal to ban the pro-democracy song Glory to Hong Kong.
In a court document draft uploaded on Wednesday, the Department of Justice (DoJ) criticised the High Court for denying it an injunction last month that would effectively ban Glory to Hong Kong. The song, which was composed during the 2019 protests and unrest, has been described by the government as pro-independence.
The document set out the DoJ’s reasons for asking the Court of Appeal for permission to appeal against the High Court’s decision.
As the leader accountable to the central government for national security affairs, the chairperson of the city’s national security committee, and the head of Hong Kong, the chief executive should have the “greatest weight and deference in national security matters,” the DoJ wrote in the document.
It said High Court judge Anthony Chan had “erred in failing” to “give any or sufficient deference to the executive’s assessment on the necessity, effectiveness and utility” of the injunction it was seeking.
The court, the DoJ added, lacked sensitive intelligence, institutional capacity and expertise to make such a judgement. Therefore, if the executive authorities assess that a proposed measure is effective, the court should “accord due weight to such assessment” and grant the injunction.
High Court judge Anthony Chan said in his ruling last month he was not “satisfied” that it was “just and convenient” to grant the government’s request, adding that it could have a “chilling” effect on freedom of speech.
In response, the DoJ said the injunction it was applying for “only serve[d] to amplify the same deterrent under the criminal law” to “more effectively” safeguard national security.
It would be “plainly wrong” to believe that “perfectly innocent people would distance themselves from what may be lawful acts” involving Glory to Hong Kong if the injunction was granted, it added.
National security of ‘the highest importance’
Hong Kong first announced in June that it would seek to ban Glory to Hong Kong, including from the internet. It followed a string of mix-ups at international sporting events that saw the song played instead of China’s national anthem, March of the Volunteers.
The government said the song was “likely to be mistaken as the national anthem,” and its existence could suggest that the city has an anthem of its own or could encourage others to commit seditious acts.
In the document published on Wednesday, the DoJ said the High Court had “erred in failing to take into account the overriding principle that national security is of the highest importance,” and that the national security law imposes an “express duty” on the Judiciary to fully enforce laws to safeguard national security.
The DoJ added that the court was required to consider if the injunction would assist in “achieving the public interest purposes which underpinned the [national security law] and the related legislations.”
By not granting the injunction, Chan had failed to give “any or sufficient deference to the executive’s assessment on the necessity, effectiveness and utility” of the injunction.
‘Divorced from reality’
In the ruling last month, Chan cast doubt on whether the injunction would have “real utility,” and said education might be a more effective tool.
The government said in the court document that Chan had not taken “relevant considerations” into account, causing him to come to a conclusion that “no reasonable judge properly directing himself could have arrived at.”
The DoJ said the considerations included the fact that Glory to Hong Kong was being used by people with the intention to “incite secession and/or sedition,” and that it was “designed to arouse anti-establishment sentiment.”
In response to Chan’s view that education may be more appropriate, the DoJ said this was “without evidential basis and divorced from reality.”
“Public education cannot be compared to a court order which has the force of the law and is far more effective in commanding the public’s attention and compliance,” the DoJ wrote.
Glory to Hong Kong was released on YouTube by a local songwriter identified only as Thomas, and his team, in August 2019. It featured lyrics co-written by netizens on discussion forum LIHKG. They called for democracy and freedom, and included the now-banned “Liberate Hong Kong, revolution of our times” slogan.
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against police behaviour, amid calls for democracy and anger over Beijing’s encroachment. Demonstrators demanded an independent probe into police conduct, amnesty for those arrested and a halt to the characterisation of protests as “riots.”
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