Chief Executive Carrie Lam’s comments comparing the proposed national anthem law with a “retroactive” draft bill on stamp duty have been criticised by pro-democracy politicians and scholars.

“During the consultation session, the public can make their views heard on the matter of [the law being] retroactive,” Lam told reporters on Tuesday. “Generally, in Hong Kong’s legislative work, there aren’t many [laws] that are retroactive. But it is not always the case – the Amendment Bill also says on some level that, when it is in effect, it will take effect from an earlier date.”

Carrie Lam. Photo: HKFP/Catherine Lai.

Lam was referring to the Stamp Duty (Amendment) Bill 2017. The government will suggest that the legislative debate on the bill could be suspended in order to make way for a non-binding motion on the controversial joint checkpoint arrangement for the Guangzhou-Shenzhen-Hong Kong Express Rail Link.

University of Hong Kong principal lecturer Eric Cheung said in a Facebook post on Tuesday: “As chief executive, [Lam] should not be this ignorant about the law and the Basic Law, and – surprisingly – not know the basic rule that criminal laws must not have a retroactive effect.”

“Under Article 39 of the Basic Law, local laws cannot contravene the International Covenant on Civil and Political Rights (ICCPR). And Article 15 of the ICCPR – as well as Article 12 of the Bill of Rights Ordinance – also clearly states ‘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.’”

HKU legal scholar Eric Cheung.

Cheung added that, even in mainland China, criminal laws cannot have a retroactive effect, as stated in Article 12 of the Criminal Law of the People’s Republic of China. “[I] hope the Department of Justice or the chief executive will clarify as soon as possible, so as not to avoid misunderstandings among the public.”

Pro-democracy lawmaker James To also said that under the common law system, criminal laws never have a retroactive effect, and that it was “ridiculous” for Lam to use a civil tax law as comparison, especially as she has been in public administration for years.

Karen is a journalist and writer covering politics and legal affairs in Hong Kong for HKFP. She has also written features on human rights, public space, regional legal developments, social and grassroots activism, and arts & culture. She is a BA and LLB graduate from the University of Hong Kong.