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

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Fans hold up the flag of China as the national anthem plays before the start of the Fifa World Cup 2018 qualification match against Qatar, in Doha on September 5. Photo: AFP

Published: 11:12am, 12 Sep 2017Updated: 7:18pm, 12 Sep 2017

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”.

Audience members stand as the Indian national anthem is played at a theatre before the screening of a film, in the city of Jammu last December 13. Photo: AP

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”.