Judge is on the right side with his ruling on Hong Kong protest song
- Mr Justice Anthony Chan Kin-keung’s decision to deny a sweeping injunction not only underlines the independence of the judiciary but also challenges the government to come up with a more balanced approach on how to deal with illicit use of the fake national anthem ‘Glory to Hong Kong’
The protest song “Glory to Hong Kong,” prevalent on digital platforms since emerging in August 2019, is strongly associated with the civil unrest of that year. But a misconception has arisen among some that the song is the city’s “national anthem”.
The confusion has, regrettably, led to it wrongly being played, instead of China’s national anthem, at several international sporting events. There is a need for misunderstandings to be cleared up and for anyone using the song with criminal intent to know serious legal consequences can follow.
But the government’s unprecedented attempt to achieve this by seeking a sweeping court injunction banning illicit use of the song was rejected by a judge last week. The court had good reasons for its decision.
Mr Justice Anthony Chan Kin-keung said the injunction was unlikely to achieve its objective as it was not a blanket ban and overlapped with criminal offences.
Chan was concerned the court order would conflict with criminal laws, including the national security law, and have a chilling effect on the legitimate use of the song by innocent people. Such a ban would bring negative consequences for little, if any, benefit.
Injunctions were used during the anti-government protests of 2019. There were bans on demonstrating at the airport and interference with the MTR.
But, as the judge said, these involved breaches of by-laws with penalties insufficient to deter offenders. The protest song injunction was different as it would mirror serious offences carrying up to life imprisonment.
The deterrent is already there.
Chan also noted that the injunctions of 2019 took place at a time of turbulence. Hong Kong has, with the passing of the national security law in 2020, returned to normality and has “an extensive and robust criminal law regime”.
The ruling provides strong evidence of the judiciary’s independence at a time when critics have argued it has been undermined. Chan ruled according to the law and was not swayed by politics.
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He rejected a submission the courts should defer to the government on national security matters.
Officials are studying the ruling and considering their next move. Pursuing an injunction might not be the best way forward.
Any response should take account of the concerns raised by the judge.
But efforts to clarify that the protest song is not the city’s national anthem must continue, with sports groups doing their best to prevent blunders. As the judge suggested, education may be the best way and publicity surrounding his decision will, in itself, help raise awareness.
No one should think the court ruling is a green light for illegal use of the song. The problem needs to be resolved, but this would be best achieved without resorting to exceptional legal measures.
