This month, Hong Kong authorities have renewed efforts to push forward a controversial bill that criminalises disrespectful behaviour towards the Chinese national anthem, March of the Volunteers.
Despite widespread criticism that the proposed law would be an assault on freedom of expression, the Legislative Council is set to resume the Second Reading debate of the bill on Wednesday, with protesters vowing to surround the complex. The move marked the latest in a series of efforts by the Hong Kong and Beijing governments to suppress their critics.
The push for legislation might reignite anti-government protests after the territory saw a quiet few months of Covid-19 closures. Already, protesters have vowed to return to the streets in coming weeks, in spite of a ban on social gatherings of over eight people and possible police clampdowns.
Where did the bill come from?
In 2017, China’s top legislative body – the Standing Committee of the National People’s Congress (NPCSC) – adopted the National Anthem Law which makes insulting March of the Volunteers a crime. Offenders face detention of up to 15 days by public security authorities or criminal prosecution. The law came into force nationwide in October in the same year.
A month later, the NPCSC inserted the anthem law to Annex III of the Basic Law, Hong Kong’s mini-constitution.
Under Basic Law Article 18, Chinese national laws shall not be applied in Hong Kong except for those listed in Annex III. The NPCSC can add more Chinese laws to Annex III, but they must be limited to defence and foreign affairs. These laws must then be effected by local legislation or promulgation by the chief executive in order to have legal force in the territory.
Accordingly, the Hong Kong government drafted a bill based on the Chinese version and submitted it for consideration by the Legislative Council in 2018.
Although the government wanted to see the bill passed last year, the process was held up first by pro-democracy lawmakers’ efforts to block the legislation, and later by a months-long protest movement against a now-axed bill that would have enabled the Hong Kong authorities to extradite suspects to their mainland counterpart.
Last month, the new Secretary for Constitutional and Mainland Affairs Erick Tsang said a day after his appointment that he hoped the legislature would resume the legislative process of the national anthem bill.
What is the bill about?
The bill regulates the use of the national anthem and sets out standards of behaviour when the song is played. Of key concern is the provision that punishes 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, with a penalty of up to HK$50,000 and three years in jail.
However, the bill failed to define terms like insult and derogatory, raising concerns that such ambiguities might lead to wide restrictions on the right to freedom of expression.
In response, Chief Executive Carrie Lam said: “I believe this is common sense. It is very difficult to state clearly what an insult is.”
Then-secretary for constitutional and mainland affairs Patrick Nip said last May that the specifics of the offence would become clear over time after local courts hear more cases.
The bill was also criticised for requiring schools to teach students to sing the anthem and understand its spirit. The provision is largely aligned with the Chinese version, which states that the national anthem is an important component in patriotic education.
What about other countries?
Common law jurisdictions such as Australia, Canada, New Zealand, the United Kingdom and the United States do not make it a crime to disrespect their national anthem.
Malaysia’s National Anthem Act punishes those who publicly disrespect its anthem by imposing a sentence of a 100 ringgit (HK$178) fine or one month’s imprisonment.
In Singapore, failing to perform the country’s anthem as prescribed by the Singapore Arms and Flag and National Anthem Act is subject to a fine of S$1,000 (HK$5,455).
Some European countries, which have a different legal system, criminalise insults to their national anthem. In Greece, the act is punishable by a fine or two years in prison. France imposes a €7,500 fine (HK$63,362) on people who offend the French national anthem or flag during government-regulated events.
The anthem bill, if passed, will not be the first law in Hong Kong that criminalises disrespectful acts towards Chinese national symbols. The desecration of the Chinese national flag and the Hong Kong SAR regional flag became a crime in Hong Kong in 1997 following the transfer of sovereignty.
The UN Human Rights Committee, the oversight body of the International Covenant on Civil and Political Rights (ICCPR), has expressed concern over laws that punish criticism of state symbols and flags. As with national anthems, offensive acts against one’s national flag are also not a crime in Australia, Canada, the United Kingdom and the United States – with New Zealand an exception.
Nonetheless, opponents of the national anthem bill might find Hong Kong courts unhelpful to their cause.
The Court of Final Appeal (CFA) upheld the constitutionality of the flag laws in the landmark case of HKSAR v. Ng Kung Siu in 1999. The top court ruled that it was justified by the need to protect ordre public, a concept vaguely defined by the CFA as the interest of society.
China’s sovereignty over Hong Kong, national unity and territorial integrity – political ideals cherished by the Communist Party – were accepted as legitimate interests that justify the curbing of freedom of expression.
Given the impugned bill’s similar nature to the flag laws, and the recent trend of Hong Kong courts upholding unprecedented restrictions on civil and political rights in cases where Chinese state interests were at stake – including an election ban of a pro-independence advocate and the ousting of lawmakers who declined to pledge allegiance to China – it will not be a big surprise if someone is jailed for booing China’s national anthem.