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Hong Kong’s Legal War on a Protest Anthem

Updated: Mar 14

Last week, Hong Kong’s high court dismissed a government request for an injunction order against the protest song “Glory to Hong Kong.” The government accused the piece of desiring and promoting Hong Kong’s independence, and previously attempted to bar the dissemination and circulation of the song on the internet.

The protest song was composed by local citizens during the 2019 anti-extradition protests. It was widely used and chanted in protest scenes, at street demonstrations, shopping malls, and public schools. After Beijing imposed the National Security Law in 2020, the public use of the protest song declined. However, in the past ten months, the song became popular again after it was mistakenly used as the “national anthem” of Hong Kong at several international sporting events.

As the local government failed to force multinational tech companies to remove the protest song from internet search engines and streaming platforms, the Department of Justice (DOJ) asked the court to issue an injunction to prohibit the broadcast or distribution of the song.

The request for an injunction to ban “Glory to Hong Kong” is not the first time that the authorities have sought to use an injunction to tackle politically controversial matters. Back in 2019, an injunction order was given by the court to disallow any unlawful and willful obstruction of the airport and roads nearby, as anti-government protesters organized sit-ins inside the city’s international airport in summer.

As early as 2014, when the Umbrella Movement impacted three commercial hubs of Hong Kong, pro-government lawyers and business groups asked the court to give an injunction against protestors’ occupations. The court issued clearance orders, leading to the end of the Occupy protests.

The court’s ruling last week did not challenge the authority of the National Security Law (NSL), which has enabled the local government to arrest at least 250 political activists and journalists over the past three years. Instead, the court welcomed the chief executive’s confirmation that “Glory to Hong Kong” was endangering national security, and clarified that it would grant an injunction order to safeguard national security, even if the order would create a chilling effect against free speech.

If so, why then did the court deny the government’s request?

The court dismissed the injunction request as it found that an injunction would not add any utility above existing criminal law. Conflicts exist between the implementation of an injunction order and the enforcement of the existing criminal legal statutes, such as the NSL and sedition law. These legal rules are considered sufficient instruments to tackle the alleged acts of government concern.

Undoubtedly, the Hong Kong government knew they had criminal laws in hand to suppress any act or speech that they consider to be endangering national security or seditious. Why then did they bother to file an injunction?

One reason is apparent: an injunction order, as a civil proceeding, carries a lower threshold of proof than criminal law, which requires proof beyond a reasonable doubt. In short, it is easier for the authorities, particularly the DOJ, to use laws and courts to achieve what they want via an injunction order.

Another reason might be more pragmatic: The government tried to use the fame of the civil court to pressure tech giants, such as Google, which has operations in Hong Kong, to comply with the order. Despite the widespread, intensive criticisms against the NSL and the criminal court of Hong Kong, there remains a popular narrative that Hong Kong’s court can still handle civil and commercial cases independently and robustly. Business enterprises in Hong Kong still trust the local civil court. Against this background, using civil proceedings instead of the criminal justice system or the NSL would make the business community less able to disapprove the decision as an outcome of enforcing the problematic NSL or other draconian laws.

Paul Lam, the secretary for justice of Hong Kong, is thus responsible for weaponizing laws and courts by putting non-criminal cases under the national security agenda. Such a tactic by the DOJ can also be seen in the case involving the admission of Timothy Owen KC as a defense counsel for media mogul Jimmy Lai’s upcoming national security trial. Lam’s DOJ tried to file a final appeal against the court’s admission of Owen, yet the Court of Final Appeal dismissed the appeal for technical reasons.

After the final ruling, the government disapproved of the Court of Final Appeal’s decision and sought Beijing’s intervention. Ultimately, the government found ways of barring Owen from taking the case. Lam introduced a reform of the existing Legal Practitioners Ordinance, restricting the presence of overseas lawyers in cases concerning national security. Notably, the concept of national security remains vague and overbroad, allowing the authorities to intervene in any court cases they choose.

The dismissal of the injunction request against “Glory to Hong Kong” last week is the second failure of the DOJ, and ultimately Lam, to satisfy the court that their actions are justifiable to the common law of Hong Kong. It also demonstrates that Lam’s strategy of blending civil proceedings into the state’s political agenda was not satisfactorily accepted by the court.

Using a civil proceeding instead of a criminal one would only signal that the DOJ is not confident of criminalizing individuals or companies if they are involved in disseminating the protest song in question. However, the court should not replace the government to deal with a political controversy. Otherwise, the court would become an instrument of the government’s legal repression, like many authoritarian regimes today.

Free speech and free information flow are fundamental values of an open society and a business-friendly environment. However, Lam’s legal tactics repeatedly put these values at risk, and damage business and public confidence in the city’s legal system. The filing of an injunction request, combined with the recent court warrants against overseas political activists with bounties, is counterproductive for the government’s goal of promoting Hong Kong as an investment-attractive hub.

Business groups in Hong Kong, particularly tech giants like Google, might be relieved following the court decision last week. That said, waiting to see Lam’s follow-up actions is essential. Restoring public trust in judicial independence is more than just a task of the courts. The executive government must respect court decisions rather than seek external powers to pressure and influence the judiciary, if they truly care about the global recognition of Hong Kong.

(Published in the Diplomat, 1 August 2023)

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