Opinion | A judge's ruling: Is 'Glory to HK' free speech or a conspiracy?
By Philip Yeung, university teacher
In the west, only popes are said to be infallible. Court judges are not. That's why the court system has many layers, each subject to the next level of scrutiny. High Court Judge Anthony Chan, praised by some for showing judicial backbone, has just rejected the government's application to ban the playing and performance of the protest song "Glory to Hong Kong", a ballad linked to the unrest.
The application was prompted by a series of embarrassing blunders in international sports events where the protest song was substituted for "the March of the Volunteers". Local officials have asked Google to remove the song from its search site. But the tech giant has refused, asking for proof that the song is illegal. The government thus finds itself in a catch-22 situation.
The judge's decision is rooted in three considerations: First, the injunction will be useless. In fact, Senior Counsel Abraham Chan, speaking as a friend of the court, says it may even trigger the Streisand Effect, so named when Barbara Streisand filed a lawsuit to force the press to conceal the photos of her California residence, but ended up attracting more attention to it. May be so, but I submit, any uptick in attention is temporary. Once the injunction kicks in, it will subside.
Lawyer Chan believes that the injunction won't deter those who work to violate the law. How does he know? It is pure conjecture. After all, when the MTR Corporation and the Hong Kong Airport Authority won an injunction, obstruction of the transport facilities ended abruptly, even in the heat of the protest. Whether the injunction works or not is a sociological question which the judge is not qualified to answer. That is a matter for enforcement agencies.
Judge Chan's second reason is that the injunction flirts with double jeopardy as the National Security Law (NSL)and the Sedition statutes already cover this offense, leaving violators liable not only for criminal but also civil proceedings. In practice, the Common Law's repugnance against double jeopardy ensures there will be discretion in choosing how to proceed. But his honor remains unconvinced.
The third reason is the chilling effect an injunction may have on innocent third parties. Excuse me, but there are no innocent third parties in this fight-to-the finish struggle. Besides, journalists are exempted from the ban. The injunction only targets those guilty of "broadcasting, performing, printing, publishing, selling, offering for sale, distributing or reproducing in any way." It's after those with unlawful intent, not innocent parties.
Wu Chi-wai, a democrat, was right to lament that Hong Kong used to be tolerant. In fact, post-handover, it was a totally free-wheeling society, the freest in the world. But who has abused and killed its freedom? The very people who call themselves freedom fighters. He should have asked himself: Is the individual sovereign? Is freedom absolute?
Judge Chan seems silent on the question of intent, a key consideration in law and prosecution.
Neither has he considered the political context. Make no mistake, this is no academic debate about "peaceful dissent" in a peaceful society. Hong Kong is reeling from ten years of turmoil. As we speak, its Chief Executive is barred from attending APEC's Economic Summit in November as a sanctioned person by its American host, a flagrant abuse of its role. This era of anti-China hysteria is no time for a gentlemanly debate.
Don't forget the other context. On five occasions this past year, including Rugby Sevens in South Korea, the Ice Hockey tournament in Sarajevo and the Asian Classic Powerlifting Championship in Dubai, the protest song was played as Hong Kong's national anthem. The pranksters got off scot-free. Hong Kong, looking like a fool, is powerless to stop the shenanigans.
This is not free speech. It looks like a conspiracy, and smells like a conspiracy, prompting Hong Kong's Organized Crime and Triad Bureau to investigate. Calling it free speech is miscasting the issue.
Texas is itching to secede from the US. Will the US government tolerate its playing a state protest song in place of the Stars and Spangled Banner, and sit idly by while the courts debate its legality?
In a separate judgment, co-authors of the children's book series "Sheep Village" were jailed for sedition in peddling a tale of a flock of sheep resisting the tyrannical rule of a wolf pack, in a coded attack against the Chinese government.
The government is wrong not to seek to ban the protest song outright, making the judge walk the fine line separating people with lawful intent from those with unlawful intent.
A casual reading of the song's lyrics leaves no doubt as to its seditious intent. The Oxford Dictionary defines sedition as "the use of words or actions that are intended to encourage people to oppose a government." That is precisely what the song seeks to do. Its phrase "Liberate Hong Kong, revolution of our times" has already been ruled to be secessionist in trial.
If you ban "Sheep Village", why not "Glory to Hong Kong"? It has repeatedly turned China into an international laughingstock. We need a deterrent.
Google has refused to remove the offending ballad, but it has an obligation to alter its algorithms, as "Glory to Hong Kong" is patently a protest song. How does it get elevated to be an anthem? You don't need a Shakespeare to tell you the difference. Google is guilty of mislabeling. All it has to do is to relabel it "Hong Kong's protest song" Somebody goofed at Google. Time to eat humble pie and move on.
Critics of judges court contempt charges. I don't fancy being in an orange jumpsuit nor do I wish to avail myself of the hospitality of the Stanley Park prison. I hear that the meals are decent, and the cells are cockroach-free. But I am counting on his honor to defend my right to free speech, whatever I may say about his judgment or the song's nauseating lyrics.
The views do not necessarily reflect those of DotDotNews.
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