The national anthem law (NAL) passed by the National People’s Congress Standing Committee (NPCSC) last month officially came into effect on Oct. 1, under which any individual who commits disrespectful act against the Chinese national anthem could be held in custody for a maximum of 15 days and face further criminal liability.
The NPCSC also suggested that the NAL be added to Appendix 3 of Hong Kong’s Basic Law, so that it will be applicable to Hong Kong as well. However, in order to enact the NAL, the SAR government has to legislate for it locally and put it to the vote in Legco.
With regard to the booing of the Chinese national anthem by local soccer fans before a friendly match between Hong Kong and Laos on Oct. 5, Professor Rao Geping, a member of the Basic Law Committee, said the SAR authorities should put the incident on record and follow up the case accordingly after Legco has passed the local legislation on the NAL.
However, Maria Tam Wai-chu, another Basic Law Committee member, has expressed reservations about Rao’s suggestion, saying that in common law jurisdictions, newly passed criminal laws are rarely given retrospective effect unless there are very serious offences involved.
Her opinion was echoed by former Civic Party lawmaker Ronny Tong Ka-wah, who said it would be unfair for people to be prosecuted for conduct that was not an offence at the time it was committed.
Even though it is beyond dispute that the people of Hong Kong should show respect to our national anthem, we are worried that giving retrospective power to the law may give rise to a lot of legal and technical issues, thereby provoking further social controversies.
Besides, it would be highly difficult for the authorities to identify exactly who has violated the law among the crowd. And it would take a heavy toll on public confidence in the rule of law if any individual was wrongfully convicted of disrespecting the national anthem.
Perhaps former Legco president Jasper Tsang Yok-sing has got it right: the government cannot rely totally on the law to sustain public respect for our national flag and anthem. Any attempt to force people into showing respect to the national anthem by threatening criminal prosecution would only fuel public hostility toward the state. The key to facilitating respect to a national flag and anthem is to win the hearts and minds of the people.
This article appeared in the Hong Kong Economic Journal on Oct 9
Translation by Alan Lee
[Chinese version 中文版]
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