A new report by Hong Kong Watch has said that the upcoming national anthem law is akin to “legal malware,” and will open a backdoor for Beijing to enact any laws it wishes in order to tighten its grip on Hong Kong.

The draft national anthem law has been tabled at the legislature and is now at the committee debate stage. Under the proposal set to be enacted this year, anyone who publicly and wilfully alters the lyrics or the score of March of the Volunteers, performs or sings the anthem in a derogatory manner, or insults the song, risks a penalty of up to HK$50,000 and three years behind bars.

national anthem law
Hong Kong pro-democracy activist Joshua Wong (L) passes a placard depicting part of the musical score of the Chinese national anthem during a protest outside the Legislative Council (Legco) in Hong Kong on January 23, 2019. Photo: Anthony Wallace/AFP.

The legislation process in Hong Kong was started after China’s top legislature passed a motion in November 2017 to insert the national anthem law into the Annex III of the Basic Law, Hong Kong’s de facto constitution. Under Article 18 of the Basic Law, mainland Chinese laws “shall not be applied” in Hong Kong except for those listed in Annex III.

Kevin Carrico, a senior lecturer in Chinese Studies at Monash University who wrote the report for the UK watchdog, said Beijing was using Annex III to “legislate away rights guaranteed in the Basic Law that are unrelated to the central government’s purview of defence and foreign affairs.”

Annex III contains national laws in relation to the national emblem and flag, territorial seas, and diplomatic privileges and immunities, among others.

“By employing Annex III to legislate away rights guaranteed in the Basic Law that are unrelated to the central government’s purview of defence and foreign affairs, Beijing is essentially creating a new precedent to force whatever legislation it pleases on Hong Kong: a particularly dangerous situation as Beijing seeks ever greater control over the city,” Carrico wrote.

“If the National Anthem Ordinance becomes law, this legislation will threaten the very foundations of the idea of ‘one country, two systems,’ as well as setting a dangerous precedent for potential future ‘national security’ legislation under Article 23.”

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‘Politicised abuse’

Carrico said that the bill has vague definitions on “insult,” a considerably extended time limit for prosecution of two years – instead of the more common six months – and a disproportionate punishment. He said it will curtail basic rights of free speech and demonstration guaranteed in the Basic Law and the International Covenant on Civil and Political Rights.

“The proposed bill is not only open to potential politicized abuse, but indeed seems almost designed for politicized prosecution, constituting a type of legal malware that will weaken Hong Kong’s respected rule of law system,” he said.

He added that the bill is likely to foster further protest, because it will be practically unenforceable, for instance, when hundreds of football fans boo the national anthem. Instead, the prosecution may act more “practically” to focus in on particular individuals.

Carrico cited an example whereby pro-Beijing newspaper Ta Kung Pao singled out Ernie Chow, former leader of the Chinese University of Hong Kong student union, for allegedly booing the anthem at a football match.

“Although such images do not provide any clear evidence that Chow was in fact booing the anthem, pro-Beijing media in the city pre-emptively declared him guilty, long before this ordinance had even been drafted,” Carrico wrote. “A practically unenforceable law, combined with the recent targeting of activists, makes the National Anthem Ordinance ripe for unjust implementation and politicized prosecution.”

Kevin Carrico
Kevin Carrico. Photo: Handout.

The report urged the international community to call on the government of Hong Kong to halt legislation, and to use private and public diplomacy to raise questions about the use of Annex III.

It also said the UN Special Rapporteur on Freedom of Expression and the UN Committee on Civil and Political Rights should issue further guidance on whether it is permissible for states to use criminal defamation law to penalise those “insulting” a national anthem.

Earlier this month, Permanent Secretary for Constitutional and Mainland Affairs Roy Tang said the National Anthem bill simply asks people to “stand solemnly and deport themselves with dignity” when the anthem is played.

In January, Secretary for Constitutional and Mainland Affairs Patrick Nip said the law would have no effect on the daily lives of Hongkongers: “The main spirit behind the [national anthem bill] is respect, and I believe that this spirit of respect is easily understood and easily achieved by members of the public.”

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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.