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Hong Kong Basic Law

Backdating Hong Kong’s national anthem law could be constitutional, Basic Law Committee vice-chairwoman insists

Former justice minister Elsie Leung says allowing large-scale disrespect of March of the Volunteers before law’s passage could make city ‘an international laughing stock’

PUBLISHED : Wednesday, 15 November, 2017, 3:07pm
UPDATED : Wednesday, 15 November, 2017, 10:11pm

A Beijing adviser on Wednesday doubled down on her claim that the Hong Kong government could use the incoming national anthem law to punish anyone who disrespects the song before the law even passes, as a former top judge questioned whether that would be constitutional.

Elsie Leung Oi-sie, vice-chairwoman of the Basic Law Committee, which advises Chinese state leaders on the implementation of Hong Kong’s mini-constitution, said the city’s Bill of Rights Ordinance does not ban retroactive laws, rejecting earlier claims that a backdated law would flounder in the courts.

Former Court of Final Appeal judge Henry Litton said whether or not a retroactive law would fall foul of the ordinance’s Article 12 would be “a very interesting question”.

On November 4, China’s top legislative body, the National People’s Congress Standing Committee, inserted the mainland law against anthem abuse into Hong Kong’s Basic Law. That means the city government has to pass a local law to the same effect.

Leung, a former justice minister, had earlier said that the Legislative Council had the power to make the law retroactive if there was a “large-scale” breach before it came into force.

But her former top aide dismissed such a move as unconstitutional. Grenville Cross, who was director of public prosecutions when Leung was justice chief, said such retroactivity would get “struck down by the courts” because of the legal principle that people should not be prosecuted for doing something that was not illegal when they did it.

Leung stuck to her guns, telling a radio programme on Wednesday that it was fair to make the law retroactive if some people intentionally insulted March of the Volunteers before legislation was completed.

“If someone knows clearly the national anthem law will be implemented in Hong Kong … and if there is a large-scale behaviour insulting the national anthem, leading to an international laughing stock, is it unfair to make the law retroactive?” Leung said.

“Or should we allow people to make use of the window period to provoke the central and special administration region governments?”

What will China’s national anthem law mean for Hong Kong?

Speaking on the same day at the Foreign Correspondents’ Club, Litton declined to comment on Leung’s remarks. But he said criminal law is in general not retrospective, and questioned how backdating the law could stand the constitutionality test in court.

“It would be very interesting because whether such a piece of legislation passed by the Hong Kong legislature can withstand a constitutional challenge, as being inconsistent with the Bill of Rights, I think would be a very interesting question,” he said.

Though conceding that criminal laws in general were not retroactive, Leung cited as precedent during her radio interview a bill that the government submitted in 1997 defining the right of abode to prevent an influx of illegal immigrants. The legislation was enacted on July 9, 1997, but took effect from July 1 that year, she said.

Leung did not mention that five Court of Final Appeal judges, including Litton, ruled the retroactivity unconstitutional in 1999, and it was only after an NPC Standing Committee interpretation of the relevant immigration provision in the Basic Law that the law took effect from July 1. But the interpretation dealt only with the meaning of the abode provision and not retroactivity issues.

Article 12 of the city’s Bill of Rights Ordinance states that “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 Hong Kong or international law, at the time when it was committed”.

But Leung said the article did not ban all retroactive legislation.

“Article 12 of the Bill of Rights Ordinance did not say it is not allowed to introduce a retroactive effect in legislation,” she said.

Watch: Hong Kong soccer fans boo national anthem

The incoming law has been given added relevance by a section of fans of the city’s soccer team, who have since 2015 booed the national anthem before matches. Fans booed the song before Tuesday night’s Asian Cup qualifying match against Lebanon at the Hong Kong Stadium.

Leung said the booing was “silly”.

“Everyone is responsible for respecting their own country and the anthem that represents the country. This [booing] behaviour is very silly,” she said.

While there can be amendments to the local law depending on the situation, Leung said the NPC Standing Committee holds the power to “return” the law if it finds it not in line with national legislation.