Secretary for Constitutional and Mainland Affairs Patrick Nip has said that lawmakers who do not attend the national anthem part of the oath-taking ceremony would need to give a reasonable explanation. This rule will feature in the upcoming, controversial national anthem bill.

Pro-democracy lawmakers have said that the government’s proposed law, to be submitted for first reading on January 23, does not clearly set out what constitutes “insulting” the anthem. Under the proposal, the maximum penalty for insulting the anthem in public or online is a HK$50,000 fine and three years behind bars.

Patrick Nip. Photo: Commercial Radio screenshot.

“People just need to respect the national anthem and avoid taking actions that insult the national anthem,” he said. “There is no political suppression or political prosecution.”

Nip said on a Commercial Radio programme on Thursday that lawmakers might be in violation of the national anthem law and the Oaths and Declarations Ordinances if their actions seemed questionable.

“If new lawmakers have a reasonable explanation as to why they do not attend the session when the national anthem is played, and they do not intend to insult the national anthem or express certain political views during the oath-taking ceremony, I don’t believe there is any problem,” he said.

The Standing Committee of China’s National People’s Congress passed a motion in November 2017 to insert the new national anthem law into the Annex III of the Basic Law, Hong Kong’s de facto constitution. The government then drafted the bill to legislate the law locally.

Nip said the government has been discussing “every part” of the bill with the central government in Beijing, but he declined to reveal whether the provision detailed above had been discussed.

Taking of Legislative Council oath. File Photo: Stanley Leung/HKFP.

When attending an RTHK radio programme on Thursday, Nip was asked whether spectators at a horse race would be in violation of the law if they failed to stand up while the anthem is being played. In this hypothetical scenario, spectators are too focused on analysing the race to notice the anthem.

Nip said he would not go too far into details aboit what gestures people should take.

“We have to look at the intention [behind a gesture] when determining whether it constitutes an insult to the national anthem,” Nip said.

“If they are focused on analysing the race and do not realise the national anthem is being played, then I do not believe it constitutes an intentional insult to the national anthem.”

“A most obvious case is when a group of people publicly and intentionally announce that they will conduct some gestures that other people will understand to be intentionally insulting the national anthem. Then it will fit the criminal elements we mentioned in the bill,” Nip added.

It remains unclear as to what group constitutes “other people”.

Horse racing. File Photo: Jockey Club.

If the bill goes through, anyone who publicly and wilfully alters the lyrics or the score of the Chinese national anthem can be punished.

Nip said it would not be acceptable for anyone to alter the lyrics or the score, even if the gesture is one of appreciation. He cited a case in which the court ruled that a person had defiled the national flag, even though that individual had inscribed on it words praising China.

But he said the government would offer some leeway in enforcing the law such that those who can not perform the anthem to perfection will not get punished.

The controversial national anthem law would have a two-year time limit for prosecution, the Hong Kong government revealed on Wednesday in its proposed draft. For crimes of a similar level of seriousness, the time limit is normally six months.

Nip said that the only reason for the lengthened prosecution period was to ensure there would be enough time to gather evidence against the individual or group charged.

Kris Cheng

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.