Common sense needed in enforcing national anthem law
- There is a risk that prosecuting people for insulting the anthem a long time after the alleged offence will prompt suspicions of political motives
The application of mainland China’s national anthem law to Hong Kong was never going to be easy. From the moment the law was passed in Beijing in 2017, questions arose about precisely what form it would take when later applied to the city. The unveiling of the National Anthem Bill last week has not resolved all of the issues raised.
The law is intended to promote and protect the national anthem. It creates a new crime of intentionally insulting the anthem in public and prohibits any changing of the lyrics or score with intent to insult it. The law also sets out occasions when the anthem must be played – and must not. It requires schools to educate their students about the anthem and provide opportunities for it to be sung. The law is expected to be passed by the Legislative Council this year.
Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen has diligently answered many questions about whether this or that type of conduct will amount to an offence. But it will not be up to him. Whether a crime has been committed will depend on the wording of the law and the way it is interpreted by the courts. For that reason, the law must be clear and precise. People need to know how to regulate their behaviour. In the bill, insulting the national anthem is defined as undermining its dignity as a symbol and sign of China. This is a broad definition. What amounts to an insult is highly subjective. Common sense dictates that there will be some clear-cut cases, such as the flagrant booing of the anthem at soccer matches, which has been seen in recent years. Other cases will not be so easy to determine. It is to be hoped that the legislative process will lead to further clarity.
Concerns have been raised about the two-year period allowed for police investigations. Most offences handled by magistrates, including a similar law against desecration of the national flag, have only a six-month period. The government argues more time is needed to investigate mass breaches of the law and offences committed on the internet. But it should be possible for investigations to be completed in a shorter time. There is a risk that prosecuting people for insulting the anthem a long time after the alleged offence will prompt suspicions of political motives. Consideration must be given to whether the two-year period is necessary.
Some schools are concerned about precisely what the law requires of them. The government must provide them with clear guidelines so that they understand precisely how to comply.
Respect should be shown for all national anthems. But a law that makes disrespect a crime, by its nature, restricts free speech. Care must be taken to ensure those restrictions go no further than necessary. Common sense will be needed in both passing and enforcing the new legislation.