Hong Kong Basic Law

National anthem law won’t cover all scenarios, Hong Kong justice chief says

Amid concern in the city about possible prison terms and what will constitute a crime, justice secretary is non-committal about draft legislation and enforcement

PUBLISHED : Monday, 06 November, 2017, 2:58pm
UPDATED : Monday, 06 November, 2017, 10:55pm

Hong Kong’s national anthem law will not contain sufficient detail to cover all situations in which it might apply, the city’s justice chief said on Monday amid concern over whether it will be a crime not to stand for the song.

Secretary for Justice Rimsky Yuen Kwok-keung said no law could be written with the foresight to cover all possible future scenarios, but the anthem law would need to maintain the original intent and purpose of mainland China’s legislation while balancing it with the city’s unique common law system and the safeguards it provides.

On Saturday China’s top legislative body imposed a national anthem law on Hong Kong by inserting it into the city’s mini-constitution, meaning the local administration is under obligation to draft local legislation criminalising any abuse of the song.

Hong Kong lawmakers have called for guidelines on how the law should be enforced to avoid undermining freedom of expression, but on Monday Yuen was non-committal.

“As to whether [the law] will very explicitly state how enforcement will be undertaken, this is something we have to take into account with every law we draw up,” Yuen said. “It depends on the nature of the law.”

The anthem law comes in the wake of recent cases of abuse against the song, including among Hong Kong football fans, who have been seen booing the anthem at international matches.

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Pro-establishment lawmaker Michael Tien Puk-sun on Monday said a formal public consultation must be held to iron out contentious issues such as whether it would be a crime not to stand when the song is played.

Tien, a delegate to China’s national legislature, said the Hong Kong government’s pledge to “listen to views” instead of undertaking an official consultation exercise was meaningless.

He said refusal to launch a consultation would lead the legislation to the same fate as the equally controversial arrangement for border checkpoints for the city’s high-speed rail link to mainland China.

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“Almost every single person will have to be in a situation at some point involving the broadcast of the national anthem. Everyone will be fearful because you’re talking about a crime now.”

Tien expected legislation to be a long and challenging process, not least to interpret the relevant articles in the mainland’s version of the law such as Article 7, which states that “those present” when the anthem is performed or sung must “stand and deport themselves respectfully, and must not disrespect the national anthem”.

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“If someone is in a cha chaan teng and suddenly the national anthem plays on television, does that person stand up for it half way through their wonton noodles? That’s not possible.”

But Tien also suggested the local legislation include a provision specifying the anthem should not be used for “inappropriate intentions”.

He said opposition lawmakers in the Legislative Council could play the anthem through a speaker in the chamber and force everyone to stand repeatedly as a filibustering tactic.

“Would I need to get up? If I don’t, would I be in breach of the law?” he said.

Under China’s national law, everyone must stand solemnly when the anthem is played. Anyone who maliciously modifies the lyrics, or plays or sings the song in “a distorted or disrespectful way in public”, can be detained for up to 15 days in “administrative detention” by police under the law, or imprisoned for three years under the mainland’s criminal code.

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University of Hong Kong principal law lecturer Eric Cheung Tat-ming told the same radio show on Monday that he believed many legal complications would arise from enforcing a requirement to stand solemnly when the anthem plays, and therefore it was unlikely to be included in local legislation.

But enacting it into local laws without any punishments would render it meaningless, he said.

“In Hong Kong, if you write that there will be no penalty, there’s a problem. A situation will arise where people just keep breaking the law,” Cheung said. “That’s not ideal, but with a penalty, a lot of complications [in enforcement] will arise.”

He urged the government to follow the conditions of existing laws on the national flag and emblem in formulating a local anthem law, and tighten it to cover only abuse and disrespectful behaviour.

Secretary general of the Demosisto party, Joshua Wong Chi-fung, described the law as a tool to “constrain one’s freedom of thought” and said that it should not be implemented in the city. He said that standing up solemnly whenever the national anthem played was just impractical.

“It will only create antipathy to the anthem. If the people trust the country, they will respect the anthem. If the government performed badly and lost trust from the people, then the problems would not be solved by the law anyway,” Wong told the Post.