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Anti-mainland China sentiments

National Anthem Law won’t be enforced in Hong Kong before local legislation is passed, government confirms

Authorities clarify stance after executive councillor Ronny Tong warns of ‘grey area’ once national law is introduced into city’s mini-constitution

PUBLISHED : Thursday, 02 November, 2017, 11:56am
UPDATED : Friday, 03 November, 2017, 6:41am

China’s new National Anthem Law will not be enforced in Hong Kong before a local version of the legislation is passed, the government has clarified, contradicting claims from a member of the city’s top decision-making body.

Executive councillor Ronny Tong Ka-wah had said earlier on Thursday that once introduced into Annexe III of the city’s mini-constitution, the national law would theoretically “be a part of Hong Kong law”, meaning rule-breakers could be held liable.

“From [introduction into the Basic Law] until passage in the Legislative Council, it is a grey area as to whether violating the national anthem law amounts to a criminal sentence or fine,” Tong, a barrister, told a radio programme. “Legally, can we be so certain that someone cannot be charged? I’m not so sure.”

In response to an inquiry from the Post, a government spokeswoman said that this was not the case.

“As national laws listed in Annex III to the Basic Law shall be applied locally by way of promulgation or legislation by the Hong Kong SAR, the National Anthem Law cannot be applied in Hong Kong immediately after it is listed in the annex,” she said.

Explainer: what will China’s national anthem law mean for Hong Kong?

In September, China’s top legislature, the National People’s Congress Standing Committee, approved the National Anthem Law, which came into effect on the mainland at the beginning of October.

According to the law, anyone who maliciously modifies the lyrics, or plays or sings March of the Volunteers in “a distorted or disrespectful way in public”, can be detained for up to 15 days and face criminal charges. The NPCSC is already considering introducing a clause that would increase the penalty to three years.

If the standing committee endorses – as expected – a plan to introduce it into Hong Kong’s Basic Law this Saturday, the city’s government will need to make a local version of the law.

This is because under the “one country, two systems” model, national laws do not apply and must be inserted into Annexe III of the Basic Law to take effect locally. One country, two systems is the principle by which Beijing rules Hong Kong, and guarantees the city a high degree of autonomy until 2047.

Watch: five reasons China’s national anthem is the saddest ever

Such legislation has been seen as a threat, not least to a contingent of fans of the Hong Kong soccer team, who routinely boo the anthem before matches.

Secretary for Mainland and Constitutional Affairs Patrick Nip Tak-kuen said on Wednesday that the government would refer to existing laws against disrespecting the Chinese flag or emblem while drafting a new law protecting the anthem.

He said the government would seek views from the public and Legco while drafting legislation, with a view to introducing it “as soon as possible”.

Watch: Hong Kong soccer fans boo their national anthem

But Tong, a former lawmaker, was sceptical that such a law could be introduced before 2019, with controversial issues such as the high-speed rail immigration checkpoint arrangement and proposed changes to Legco’s rules of procedure set to dominate the legislative agenda up until the second half of next year.

The soonest he believed it could be tabled was October next year.

“Once tabled, can they pass it in two months?” he asked.

The pan-democrats have been calling for a three-month public consultation before the law is drafted. Tong said there had already been “adequate discussion” but agreed the public should be consulted before implementation.

New national anthem law will draw on Hong Kong’s laws protecting the Chinese flag, minister says

Speaking separately, University of Hong Kong principal law lecturer Eric Cheung Tat-ming disagreed with Tong’s “grey area” argument. Cheung said that according to Article 18 of the Basic Law, the anthem law cannot be enforced in the city before local legislation is completed.

No matter how clear the article is, if Beijing or mainland political forces say there is a political need to interpret it in a different way … there is no rule to prohibit it.
Eric Cheung, HKU law lecturer

“The article states that national laws listed in Annexe III shall be applied locally only through promulgation or legislation by the Hong Kong SAR. Since the local government has promised to implement it through legislation, it is already very clear,” he said.

But Cheung also said there was nothing wrong with Tong asking the government for clarification.

“No matter how clear the article is, if Beijing or mainland political forces say there is a political need to interpret it in a different way … there is no rule to prohibit it,” he added.

Legal sector lawmaker Dennis Kwok blasted the executive councillor’s remarks as “irresponsible” and “uncalled for”.

“The law is very clear that until the legislation has been passed in Legco, it will not have legal effect,” he said.

Additional reporting by Kimmy Chung