Clarifying the issue of applying national anthem law retroactively in Hong Kong
In an interesting piece (“Is there a case for a retroactive anthem law ?” November 1), Richard Cullen notes that in some instances courts in common law jurisdictions have allowed the imposition of retrospective criminal responsibility, and that “if the new national anthem law were to be applied retroactively in Hong Kong, this would be broadly consistent with long-standing practice within the common law system”.
That does not really address the issue that would arise in Hong Kong if an attempt were to be made to impose retrospective criminal responsibility on those who may have shown lack of respect for the national anthem.
In the first place, most of the cases (such as Manley and Shaw) to which Professor Cullen refers predate the adoption of international human rights standards on the question of retrospective criminal responsibility of the kind that are to be found, for example, in Article 7 of the European Convention on Human Rights (ECHR) and Article 15 of the International Covenant on Civil and Political Rights (part of Hong Kong law under Article 12 of the Hong Kong Bill of Rights). And even though Shaw was decided after the UK ratified the ECHR, the UK had not at that time given domestic effect to the convention.
The Australian case of Polyukhovich does uphold the validity of retrospective imposition of criminal liability under the Commonwealth War Crimes Amendment Act, but that relates to a category of cases – in that case war crimes – in which the modern rule against retrospective criminality is relaxed.
So, for example, Article 12 (2) of the Hong Kong Bill of Rights explicitly states that “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.”
The reference to conduct that was “criminal according to the general principles of law recognised by the community of nations” is generally understood to permit the retrospective imposition of criminal liability for crimes such as genocide, crimes against humanity and war crimes.
Whatever the “tradition” of the common law might have been, it is a tradition that has long been superseded by modern human rights standards, which one would hope would be upheld today in Hong Kong should the question ever arise.
Christopher Gane, dean, Faculty of Law, Chinese University of Hong Kong