Hong Kong Basic Law

Applying national anthem law retroactively in Hong Kong is unconstitutional, says former prosecutor

The city’s former director of public prosecutions says the courts would strike down attempts to apply the law to incident that predated its enactment

PUBLISHED : Tuesday, 14 November, 2017, 8:00am
UPDATED : Tuesday, 14 November, 2017, 8:00am

Former justice minister Elsie Leung Oi-sie’s suggestion that the national anthem law could be retroactively applied in Hong Kong was dismissed on Monday as “unconstitutional” by her top aide while in government.

Leung’s idea would be “struck down by the courts” if adopted by the current government, Grenville Cross, who served alongside Leung as the city’s director of public prosecutions, told the Post.

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“If the proposed national anthem legislation contained a retrospective criminal offence, it would inevitably be struck down by the courts on the basis that it was unconstitutional,” Cross said.

“It is, of course, a fundamental legal principle that the law must be certain, and that people should not be prosecuted for conduct which was not illegal at the time it occurred.”

Leung and Cross were the two most senior justice officials immediately following Hong Kong’s handover from British to Chinese rule in 1997.

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The time when the law will take effect has evolved into a matter of dispute, as pro-Beijing politicians argued that the law was already in effect after China’s parliament, the National People’s Congress Standing Committee, incorporated the anthem law into the Basic Law, or Hong Kong’s mini-constitution, on November 4.

Critics wary of the law’s effect on human rights in the city argue that merely annexing the provision into the Basic Law was not enough to make it actionable, as local legislation would be required to clarify what is punishable.

Leung, who is now a vice-chairwoman of the Basic Law Committee under the NPCSC, raised eyebrows on Sunday when she said Hong Kong lawmakers had the right to make the law retroactive if there was to be “large-scale breach before the legislation”. She added she did not think the law should be so.

Last week, fans booed and swore when March of the Volunteers was played before a soccer match between Hong Kong and Bahrain at Mong Kok Stadium.

Cross said any suggestion to apply criminal laws retroactively would be inconsistent with an international covenant enshrined in the Basic Law.

Under Article 15 of the International Covenant on Civil and Political Rights (ICCPR), “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

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He said there was “no doubt” that if retrospective legislation were to be considered, the Department of Justice’s Legal Policy Division would point out its incompatibility with the Bill of Rights Ordinance and ICCPR.

But Ronny Tong Ka-wah, a former Bar Association chairman and currently a member of the Executive Council, the top advisory body for Chief Executive Carrie Lam Cheng Yuet-ngor, argued that the matter about the anthem law was not solely criminal in nature.

“The constitutional status of ICCPR is not as high as the anthem law,” Tong said, adding that the national parliament’s legal annexation already provided a basis for criminal law enforcement.