Tu Haiming: National security outweighs the freedom of expression
日期：2023-08-11来源：
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By Tu Haiming
The Hong Kong Special Administrative Region government has no alternative but to appeal the High Court decision rejecting the application for an injunction filed by the Department of Justice (DoJ) against the separatism-linked song Glory to Hong Kong.
The song, which symbolizes the 2019 “black-clad” riots, has been used to advocate “Hong Kong independence” and instigate anti-China and anti-establishment sentiment, posing threats to national security.
It’s both logical and imperative for the SAR government to ban the song. After all, it is the constitutional duty of the government, including the judiciary, to safeguard national security.
Surprisingly, the High Court rejected the injunction application filed by the secretary for justice, citing several reasons.
Yet, the need to safeguard national security was seemingly overlooked. It begs the question as to how factors such as the practicability or feasibility of a total ban, freedom of expression and individual rights can prevail over the need to safeguard national security.
Without national security and social stability, there is no guarantee of freedom and rights, not to mention the prosperity and well-being of the city. Hong Kong residents have a deep understanding of this after they painfully suffered from the anarchy at the height of the 2019 insurrection, during which the rioters mauled anyone who dared to take issue with their acts or speech and deprived them of their basic freedom from fear.
It should have surprised few that the court’s decision to reject the DoJ’s injunction application has attracted criticism as well as calls for an appeal to the higher court.
The enjoyment derived from singing or playing a song that could in some ways cause harm to society is in no way comparable to the benefits of safeguarding national security and social stability. That is why the need to protect national security always outweighs individuals’ right to freedom of expression
Nonetheless, some have suggested that people should refrain from criticizing the court decision, citing concern that judicial independence might be compromised. But they are guilty of distorting the true meaning of judicial independence.
Article 85 of the Basic Law gives a clear definition of judicial independence, stipulating that, “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”
In no way can the definition of judicial independence, either in the Basic Law or in actual practice in common-law jurisdictions, be interpreted as a privilege sparing a judge from being challenged should he or she be deemed to have made a legal error in a court decision. After all, judges are human beings who do make errors every now and then, as do other professionals. That the DoJ filed an appeal against the High Court judgment — after thoroughly studying it — suggests the government-commissioned legal experts see weakness in the rationale behind the judgment and believe the DoJ has high odds of winning its case in an appeal, as well as the merits of launching an appeal to the higher court on grounds of serving the public interest.
Given that the song has been used effectively to incite secession and arouse anti-establishment sentiment, there is a strong case for the court to issue an injunction to ban the broadcasting, performing or publishing of the song. The enjoyment derived from singing or playing a song that could in some ways cause harm to society is in no way comparable to the benefits of safeguarding national security and social stability. That is why the need to protect national security always outweighs individuals’ right to freedom of expression.
Indeed, Article 19 of the International Covenant on Civil and Political Rights clearly states that the exercise of individual rights, including the right to freedom of expression, carries with it special duties and responsibilities, and that it may therefore be subject to certain restrictions that are necessary for legitimate purposes, including for the protection of national security or public order.
Moreover, while the dissemination or performance of the separatism-linked song might violate the National Security Law for Hong Kong, the sedition legislation, or the National Anthem Ordinance, with offenders thus being punished eventually, an injunction would still be the quickest way to stop the song’s circulation according to some legal experts, because of its immediate deterrent effect.
The author is vice-chairman of the Committee on Liaison with Hong Kong, Macao, Taiwan and Overseas Chinese of the National Committee of the Chinese People’s Political Consultative Conference, and chairman of the Hong Kong New Era Development Thinktank.
The views do not necessarily reflect those of Bauhinia Magazine.
Tu Haiming: National security outweighs the freedom of expression
紫荆
2023-08-11 09:22
2023-08-11 09:22
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By Tu Haiming
The Hong Kong Special Administrative Region government has no alternative but to appeal the High Court decision rejecting the application for an injunction filed by the Department of Justice (DoJ) against the separatism-linked song Glory to Hong Kong.
The song, which symbolizes the 2019 “black-clad” riots, has been used to advocate “Hong Kong independence” and instigate anti-China and anti-establishment sentiment, posing threats to national security.
It’s both logical and imperative for the SAR government to ban the song. After all, it is the constitutional duty of the government, including the judiciary, to safeguard national security.
Surprisingly, the High Court rejected the injunction application filed by the secretary for justice, citing several reasons.
Yet, the need to safeguard national security was seemingly overlooked. It begs the question as to how factors such as the practicability or feasibility of a total ban, freedom of expression and individual rights can prevail over the need to safeguard national security.
Without national security and social stability, there is no guarantee of freedom and rights, not to mention the prosperity and well-being of the city. Hong Kong residents have a deep understanding of this after they painfully suffered from the anarchy at the height of the 2019 insurrection, during which the rioters mauled anyone who dared to take issue with their acts or speech and deprived them of their basic freedom from fear.
It should have surprised few that the court’s decision to reject the DoJ’s injunction application has attracted criticism as well as calls for an appeal to the higher court.
The enjoyment derived from singing or playing a song that could in some ways cause harm to society is in no way comparable to the benefits of safeguarding national security and social stability. That is why the need to protect national security always outweighs individuals’ right to freedom of expression
Nonetheless, some have suggested that people should refrain from criticizing the court decision, citing concern that judicial independence might be compromised. But they are guilty of distorting the true meaning of judicial independence.
Article 85 of the Basic Law gives a clear definition of judicial independence, stipulating that, “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”
In no way can the definition of judicial independence, either in the Basic Law or in actual practice in common-law jurisdictions, be interpreted as a privilege sparing a judge from being challenged should he or she be deemed to have made a legal error in a court decision. After all, judges are human beings who do make errors every now and then, as do other professionals. That the DoJ filed an appeal against the High Court judgment — after thoroughly studying it — suggests the government-commissioned legal experts see weakness in the rationale behind the judgment and believe the DoJ has high odds of winning its case in an appeal, as well as the merits of launching an appeal to the higher court on grounds of serving the public interest.
Given that the song has been used effectively to incite secession and arouse anti-establishment sentiment, there is a strong case for the court to issue an injunction to ban the broadcasting, performing or publishing of the song. The enjoyment derived from singing or playing a song that could in some ways cause harm to society is in no way comparable to the benefits of safeguarding national security and social stability. That is why the need to protect national security always outweighs individuals’ right to freedom of expression.
Indeed, Article 19 of the International Covenant on Civil and Political Rights clearly states that the exercise of individual rights, including the right to freedom of expression, carries with it special duties and responsibilities, and that it may therefore be subject to certain restrictions that are necessary for legitimate purposes, including for the protection of national security or public order.
Moreover, while the dissemination or performance of the separatism-linked song might violate the National Security Law for Hong Kong, the sedition legislation, or the National Anthem Ordinance, with offenders thus being punished eventually, an injunction would still be the quickest way to stop the song’s circulation according to some legal experts, because of its immediate deterrent effect.
The author is vice-chairman of the Committee on Liaison with Hong Kong, Macao, Taiwan and Overseas Chinese of the National Committee of the Chinese People’s Political Consultative Conference, and chairman of the Hong Kong New Era Development Thinktank.
The views do not necessarily reflect those of Bauhinia Magazine.
