Hong Kong’s government said judges should have followed the wishes of the city’s leader and banned a controversial protest song from the internet, raising questions about the future of judicial independence in the financial hub.
The courts should generally defer to the executive’s decision because they lack both the “sensitive intelligence” and “institutional capacity and expertise” to make an evaluation, government lawyers said in a 20-page appeal document Wednesday on the department’s website.
They said Chief Executive John Lee’s assessment that the promotion of the 2019 song would pose national security risks should have been “binding on the courts.” The lawyers added that “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 and grant the injunction unless the Court is satisfied that it shall have no effect.”
The lawyers’ stance is the strongest rebuke yet of the city’s judiciary over the handling of national security matters. Earlier this year, Secretary of State Antony Blinken denounced China for undermining the independence of Hong Kong’s courts. The UK decided last year to withdraw top judges on Hong Kong’s highest appeals court, saying China is using its national security law to undermine fundamental rights and freedoms in the former British colony.
The State Department had earlier issued a report that detailed how it said Hong Kong authorities wielded a national security law imposed by Beijing in 2020 to erode the rule of law. Officials have continued to “arrest and prosecute people for peaceful political expression critical of the local and central governments, including for posting and forwarding social media posts,” according to the report.
The Hong Kong government hit back at the report, with a spokesman saying the city “strongly disapproved of and firmly rejected the unfounded and fact-twisting remarks and also the smears” contained in it.
Part of Hong Kong’s longstanding appeal to international business is the historic reputation of its courts. They are distinct from courts in China, which are opaque in their actions and effectively controlled by the Communist Party.
The Hong Kong government is appealing a High Court decision rejecting its request to erase the song Glory to Hong Kong from the city’s internet. If it is successful, it would directly challenge the freedoms that differentiate the former British colony from mainland China. It would also raise the legal risks for Silicon Valley tech firms like Alphabet Inc.’s Google to Meta Platforms Inc., which exited China years ago due to censorship demands.
Hong Kong prosecutors have argued the protest tune’s proliferation online was a matter of national security that would plant seeds of secession, an offense under a Beijing-drafted law carrying sentences as long as life in prison. Last month, city’s High Court declined the government’s application for an injunction to make it illegal for anyone with criminal intent to perform or broadcast Glory to Hong Kong, including the lyrics and melody, on grounds of national security.
The city’s government later said it would appeal the decision, reiterating that disseminating or distributing the song was a national security crime. That appeal will be heard by the the Court of Appeal and if the government loses there, its last option in the city is the Court of Final Appeal.
Should the government lose in both, it could turn to Beijing. Last year, Lee asked China’s national legislature to intervene after losing a bid in the city’s courts to block media mogul Jimmy Lai from being represented by his UK-based lawyer in his national security trial.
--With assistance from Stanley James.
