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Hong Kong Basic Law

Hong Kong can limit scope of national anthem law, according to retired lawmaker

Retired lawmaker Ho Sai-chu says Legco has a huge role to play in drafting of local bill

PUBLISHED : Wednesday, 30 August, 2017, 11:01pm
UPDATED : Thursday, 31 August, 2017, 12:47am

Hong Kong will be able to limit the scope of a controversial new mainland law designed to curb abuse of the national anthem when writing it into local legislation, a retired lawmaker has said.

Ho Sai-chu helped draft the city’s version of the national flag and emblem bill in 1997 when it was extended to Hong Kong.

Eyebrows were raised when it was reported that the proposed national anthem law – which was given a second reading by the National People’s Congress Standing Committee on Monday – was set to be applied in the city.

It would require March of the Volunteers to be included in school textbooks and people to stand up straight, in a solemn manner, when the anthem is played at events.

‘Law to stop abuse of China’s national anthem would extend to Hong Kong ... but in revised form’

Derogatory performances of the anthem would be punishable by up to 15 days in detention – a type of sanction not currently permissible in Hong Kong.

Ho, chairman of the bills committee on the national flag and emblem bill, said the Legislative Council had a huge role to play in amending the national law according to the city’s situation while drafting its local bill.

“For instance, the requirement to mention the anthem in textbooks might not have to be included in the [local] law, but instead be carried out through executive measures,” Ho said.

Ho, 80, recalled that his colleagues had not only looked into the mainland law but also the experiences of other countries in defining what constituted “desecration of the national flag” – which he said was one of the biggest challenges for the committee.

“We once discussed whether bikinis with prints of national flags – which could be found in the United States and Britain – should be considered as desecration.”

The bill did not have to be very detailed as it should be left for the courts to decide whether an act constituted an offence, Ho said.

Concerns over planned law to prevent abuse of Chinese national anthem in Hong Kong

A person who desecrates the national flag is liable to a fine of HK$50,000 and three years’ imprisonment, which Ho said the anthem law could take note of.

The new bills committee should also force the government to clear the grey area, he said. In 1997, Ho and his colleagues had prompted the administration to clarify in black and white that it would be lawful for a film to feature the national flag in its background as long as it is not an important part of it.

Legislation to protect the national flag and emblem was not without controversy and had even prompted the Court of Final Appeal to hand down a landmark ruling in 1999 declaring it to be constitutional.

The case was triggered by ­activists Ng Kung-siu and Lee Kin-yun, who “extensively defaced” flags in a peaceful pro-democracy demonstration in 1998.

Then chief justice Andrew Li Kwok-nang said the legislation imposed a permissible restriction on freedom of expression. He cited the symbolic role played by the flags in ensuring implementation of the “one country, two systems” concept.

Democratic Party veteran ­Albert Ho Chun-yan, Lee’s solicitor, said they had considered the ­national flag law an infringement of freedom of expression.

He highlighted the comment made by then permanent judge Mr Justice Kemal Bokhary, who described the restriction on damaging the national flag as being only “just within the outer limits of constitutionality”.

“It is sad to see that the restriction is now extended to national anthem after the national flag,” said the Democrat, saying such bans would hurt the city’s unique dynamism and openness.

“Respect could not be brought through threats. It should come from people’s hearts.”

Albert Ho said the draft ­national anthem law was harsh and Legco should try to limit its scope as narrowly as it could.

Secretary for Security John Lee Ka-chiu said the local law would clearly state what was acceptable.