Hong Kong Appeals Court Decides Fate of Protest Anthem: Balancing Freedom and Security

In the midst of Hong Kong's evolving socio-political landscape, the Court of Appeal's decision to ban “Glory to Hong Kong” underscores the delicate balance between national security and freedom of expression. Upholding principles of legality and proportionality, the ruling navigates the complexities of safeguarding public safety while respecting individual rights. Despite concerns over its impact on dissent, exemptions for academic and journalistic purposes emphasise the ongoing struggle to reconcile security imperatives with democratic values.

Hong Kong Appeals Court Decides Fate of Protest Anthem: Balancing Freedom and Security
Aerial View of City During Day Time, by Ryan Mac, via Unsplash, 2018 July 31st.

09-05-2024

Marina Sáenz

Human Rights Researcher

Global Human Rights Defence

 

In the ever-shifting landscape of Hong Kong's socio political sphere, the struggle between expression and national security has once again taken centre stage. On Wednesday, May 8th, a decision by Hong Kong Court of Appeal stirred controversy, as it approved a government request to ban the popular protest anthem, “Glory to Hong Kong.” This anthem, once sung fervently amidst mass demonstrations, has become emblematic of the city's quest for autonomy and democratic rights. However, concerns over its alleged incitement to secession have prompted legal action, leading to a complex discourse on the delicate balance between freedom of expression and national security. This decision, while aiming to safeguard the integrity of the nation, raises profound questions about the rights of individuals to voice dissent in a society grappling with identity and sovereignty.

The origins of “Glory to Hong Kong” trace back to the summer of 2019 when protests erupted over an extradition bill that sparked fears of eroding freedoms and increasing Beijing interference. Initially peaceful, the protests soon escalated into violent displays of dissent against police behaviour amid calls for democracy and anger over Beijing’s encroachment. As tensions mounted, the anthem emerged as a unifying symbol for protesters, with its lyrics co-written by users of the online forum LIHKG. However, the anthem's powerful slogan, “liberate Hong Kong, revolution of our times,” has since been ruled capable of inciting secession, according to judges presiding over the city’s first national security trial in 2021. The Court of Appeal's decision comes almost a year after the government initially sought an injunction to criminalise acts of performance associated with the anthem. Last July, the High Court rejected the government's bid, citing concerns over the effect it could have on freedom of speech and expression. However, the authorities were given an opportunity to challenge this decision, ultimately leading to the recent ruling. Notably, the anthem has been mistakenly played as Hong Kong’s national anthem over 800 times, including at international sporting events such as South Korea’s Rugby 7s in November of 2022, according to the lawyer representing the government.

While the ban on “Glory to Hong Kong” may appear to infringe upon the freedom of expression guaranteed under Article 19 of the International Covenant on Civil and Political Rights, it's essential to consider the legal framework within which it operates. Hong Kong's new national security law, known as Article 23, encompasses the crime of sedition. However, it's noteworthy that Article 39 of the Basic Law stipulates the preservation and enforcement of provisions outlined in the ICCPR, the ICESCR, and ILCs within Hong Kong. This principle, as reiterated by the Court, underscores Hong Kong's obligation to adhere to international standards of human rights. Despite the stringent national security measures, the Court upheld the importance of preserving freedom of expression. Therefore, exemptions were made to permit the performance of the song for academic and journalistic purposes, emphasising the significance of upholding fundamental rights within the territory.

While every sovereign state possesses the inherent right to enact laws safeguarding its national security, it must do so in a manner that respects fundamental human rights. As enshrined in the Universal Declaration of Human Rights (UDHR), individuals' rights may be subject to limitations only when necessary to ensure respect for the rights of others and to meet the just requirements of a democratic society. Thus, while national security measures may inadvertently restrict certain rights, such as freedom of expression or privacy, it is imperative that such restrictions remain proportionate to the threat faced and uphold the principles of legality, necessity, and proportionality. In relation to Hong Kong's new security law, Deputy Secretary for Justice Cheung Kwok-kwan reiterated during the 55th regular session of the UN Human Rights Council the imperative that any imposed restrictions must meet stringent criteria. They must be reasonable, rational, and proportionate to their intended purpose, deemed necessary within the framework of a democratic society. This principle is particularly pertinent in the context of safeguarding national security, public safety, and public order. It serves as a guiding principle within the legislation, ensuring a delicate balance between security imperatives and the protection of fundamental human rights in Hong Kong's evolving legal landscape.

As Hong Kong grapples with the intricate challenge of balancing security imperatives with fundamental human rights, the recent decision to ban “Glory to Hong Kong” highlights the ongoing complexity of this task. Upholding principles of legality, necessity, and proportionality becomes paramount in navigating these multifaceted challenges.

 

Sources and further reading:

Global Times. (24 March 2024). Article 23 fully aligns with intl laws and practices, protects human rights: HK official at UNHRC session. Global Times. https://www.globaltimes.cn/page/202403/1309236.shtml

Hillary Leung. (8 May 2024). Gov’t bid to ban ‘Glory to Hong Kong’ protest song approved by appeals court. Kong Kong Free Press. https://hongkongfp.com/2024/05/08/breaking-govt-bid-to-ban-glory-to-hong-kong-protest-song-approved-by-appeals-court/

Willa Wu. (8 May 2024). Popular protest song ‘Glory to Hong Kong’ banned after previous court ruling overturned. South China Morning Post. https://www.scmp.com/news/hong-kong/law-and-crime/article/3261875/popular-protest-song-glory-hong-kong-banned-after-previous-ruling-overturned?module=hp_section_hong-kong&pgtype=homepage