Hong Kong’s proposed national anthem law is almost impossible to violate – unless you are very determined

Bernard Chan says the draft law targets public and intentional misuse of the anthem, and is not intended to curb general freedoms or force people to be more patriotic

Bernard Chan

Published: 8:00am, 15 Feb 2019

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The national anthem bill was introduced into the Legislative Council last month. We can expect heated debate and controversy in the months ahead as it goes through the legislative process.

Although the bill is receiving a lot of attention, it is important for people to understand that it has a very specific purpose and intent and is not designed to threaten general freedoms. Much of it is probably not all that controversial anyway.

The draft bill includes a ban on misusing the national anthem. This means it should not be used – either the lyrics or music or both – in commercial advertisements, during private funerals or as background music in public places.

It is very unlikely that any of us will be affected in any way by this. It is also unlikely that someone could accidentally infringe these bans, but the draft uses the words “without reasonable excuse”, just in case.

The bill also states occasions when the anthem must be played, such as oath-taking and other public ceremonies. And it requires the secretary for education to direct schools to teach students about the anthem, though the schools are not subject to penalties regarding this.

The main debate on the bill will probably concern clause seven, which makes insulting the national anthem an offence. This means altering the lyrics or music, or playing the anthem in a distorted or disrespectful way.

The clause specifies that someone must intend to insult the anthem, and do it publicly and deliberately. It would also be an offence to publish such a version or performance – but again the clause specifies that there must be intent to insult the anthem, so it is not aimed at curbing news reporting.

New anthem law: what you can and cannot do

Some commentators have already criticised the draft legislation on the grounds that it is too vague. While answering media questions last month, Chief Executive Carrie Lam Cheng Yuet-ngor said that it is difficult to specify what an insult is, but it should be a matter of basic common sense.

This remark prompted a small debate in itself. But I think most of us can tell if someone’s behaviour is deliberately insulting or mocking. I don’t think it would be possible for the legal drafters to list all the ways someone could deliberately insult the anthem. Nevertheless, this is a valid point for legislators to discuss during the upcoming debate on the bill.

Demosisto leader Joshua Wong Chi-fung protests at the government headquarters in Tamar, Admiralty, before the Legislative Council’s first and second reading of the national anthem bill on January 23. Photo: Dickson Lee

What is not valid, however, is the claim that people could be charged for not behaving in a particular way when the anthem is played. It is absurd and alarmist to claim that customers in a restaurant would be arrested for carrying on eating when the anthem is played on TV, or people in wheelchairs would be charged for not standing.

Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen has stated that the aim is not to try to catch out people whose behaviour is innocent. Indeed, officials hope that the law will never even need to be used.

In search of common sense in Hong Kong’s national anthem debate

In other words, it should be impossible to break this law without openly and deliberately doing so. If lawmakers think the wording of the bill should be amended to make sure of this, it is their job to do so.

We should also remember that anyone charged with an offence under the national anthem law will be tried in court. The accused will have every opportunity to show that the law is too vague, or if it infringes his or her constitutional rights. Judges can and do throw out cases or find against the prosecution in criminal trials – and it will be no different with this law.

Some Hong Kong soccer fans hold a protest banner and turn their backs when the Chinese national anthem is played at a Hong Kong-Malaysia Asian Football Cup match on October 10, 2017. Photo: Reuters

Another allegation is that the new law is an attempt to force Hongkongers to be more patriotic.

Again, officials have denied this. Indeed, most of us surely know that it is impossible for legislation to change someone’s emotions or feelings. The aim of the law is not to force people to do anything they don’t want to do, but to refrain from acting very inappropriately in very specific, and usually brief, situations.

Insulting national symbols is provocative anywhere, and illegal in many places – Thailand is an obvious example. This draft bill is aimed at reflecting the national law in the same way a local ordinance reflects national laws on the national flag. Few, if any of us, have a problem with that law, and the one on the national anthem should be no different.

Bernard Chan is convenor of Hong Kong’s Executive Council

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