Full scope of the national anthem law in Hong Kong must be spelled out

Grenville Cross says common sense has to play a part in the upcoming law, and the public must know where they stand. Meanwhile, the onus is on prosecutors to ensure only worthy cases proceed to trial

PUBLISHED : Tuesday, 12 September, 2017, 11:12am
UPDATED : Tuesday, 12 September, 2017, 7:18pm

In October, the National People’s Congress Standing Committee is expected to apply the national anthem law to Hong Kong, as well as Macau. Designed to promote respect for the national anthem, March of the Volunteers, and to regulate its use, it will be added to the Basic Law’s Annex III, which contains the national laws applicable to Hong Kong.

Although Article 18 indicates that Annex III laws can be applied locally by promulgation or legislation, Chief Executive Carrie Lam Cheng Yuet-ngor has already endorsed the legislative path, following the national flag and emblem laws precedent.

The proposed law will criminalise disrespect or misuse of the anthem, and offenders are likely to face short terms of imprisonment and a fine.

What will China’s national anthem law mean for Hong Kong?

Although some people claim it conflicts with basic rights, similar arguments were unsuccessfully advanced when the constitutionality of the flag protection laws was challenged in 1999. The Court of Final Appeal decided that restrictions on desecrating national and regional flags were a justifiable limitation on the right to freedom of expression, guaranteed under the International Covenant on Civil and Political Rights. A limited restriction, it said, was “proportionate to the aims sought to be achieved”, including the protection of public order.

March of the volunteers

The ambit of the proposed law will, however, need to be spelled out in detail by the law draftsman, to avoid uncertainty. Although the protection of national icons is certainly justifiable – given some people’s selfish disdain of patriotic values – the public must know exactly where they stand. In that exercise, common sense should play its part, as elsewhere.

In India, for example, it is an offence, punishable with imprisonment for up to three years and a fine, for anyone to intentionally prevent the singing of the national anthem or else to cause disturbances in places where it is being sung. In 1986, the Supreme Court decided that proper respect was shown if people stood while the national anthem was being sung, and it “will not be right to say that disrespect is shown by not joining in the singing”. Moreover, last year, the court also held that all cinemas must play the national anthem before a film starts, with everyone standing, as part of their “sacred obligation”.

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

In the Philippines, the House of Representatives has recently strengthened protections for the national anthem, subject to Senate approval. The draft law takes things well beyond anything envisaged for Hong Kong, and requires that, whenever the anthem is played at public gatherings, singing along “shall be mandatory, and must be done with fervour”.

Although an exception is made for people whose religious beliefs prohibit them from singing, they “must, nonetheless, show full respect ... by standing to attention”. The educational authorities, moreover, are required to ensure that students learn the national anthem – which finds parallels in the NPC Standing Committee’s proposal to include the anthem in school textbooks.

In Thailand, the royal anthem is played at public events, and a failure to show respect – by, for example, remaining seated – can lead to lèse-majesté charges, with imprisonment on conviction being a real possibility.

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Quite clearly, if someone behaves respectfully while China’s national anthem is played, they should not be prosecuted, even if they do not sing along. After all, many people may not have learned the words, or may have forgotten them.

How well do Hongkongers know their national anthem?

If someone is distracted, inattentive or absent-minded during the anthem, this is unlikely to afford a basis for prosecution, and they will probably receive the benefit of the doubt.

Evidence of wilful action, including open manifestations of contempt, such as booing or back-turning, is the type of conduct which prosecutors will need to look for.

As China bans national anthem ‘disrespect’, how will Hong Kong football fans react?

A case should only ever proceed to trial if there is a reasonable prospect of conviction.

Prosecutors, therefore, must never lose sight of their role as gatekeepers, weeding out borderline cases, and ensuring that only meritorious prosecutions are ever litigated.

Grenville Cross SC is a criminal justice analyst