To have or not to have a national anthem law

January 17, 2019 09:00
Hong Kong's proposed national anthem law will require the 'March of the Volunteers' to be played in the Legislative Council at the start of swearing-in ceremonies for members. Photo: HK Govt

There is nothing wrong in promoting respect for the national anthem of your country. As a naturalized American, I stand respectfully with my right hand over my heart whenever the Star Spangled Banner - my county's national anthem - is played.

I am not required to do that by law. In fact, the US Supreme Court even ruled in 1990 that burning the American flag in protest is part of free speech. I stand for America’s national anthem because I am proud of and respect my country. But I have no problem with Americans who kneel in protest – as some football stars have done – during the national anthem. The law allows them this free choice.

Patriotism is a wonderful thing when it springs from the heart. Jingoism – or extreme patriotism – is something that should be shunned. As an ethnic Indian, I stand when India's national anthem is played at events I attend. As a Hong Kong-born person, I do the same when China's March of the Volunteers is played.

I do this to show respect for the anthems of other countries. In fact, I stand respectfully for every national anthem whenever I attend a country's national day reception in Hong Kong. Both that country and China's national anthem are played at such events.

Many guests at such receptions talk or check their mobile phones but I put down my drink and stand respectfully. Everyone should respect every country's national anthem if they choose to attend events where such anthems are played.

But I can't help feeling something is wrong when respect for a national anthem is forced on you by law. I am not the first nor will I be the last to say it is impossible to legislate patriotism. Laws can only demand patriotism with the threat of punishment for those who disobey. But such laws can’t foster genuine patriotism, which can only come from love, trust, and belief in a country's values.

That's why Hong Kong's proposed national anthem law bothers me. Let me say again, I am not against respect for China's national anthem. I don’t even mind a national anthem law although most countries don’t have such a law. But the government’s proposed law contains wording that takes us into territory that is alien to many Hong Kong people.

What I have read about the proposed law so far is that it demands a lot from Hong Kong people but contains very little clarity. People are expected to know what they should and should not do when the anthem is played in public.

That is fine when a law involves robbing a bank or ignoring traffic lights. People know robbing a bank or driving through a red light is an offense because there is no ambiguity.

Likewise, burning or defacing the national flag and emblem – which are offences in Hong Kong – are clear-cut. They are physical acts which, if done deliberately, can become straightforward court cases. But you can't burn or deface a national anthem. Nor can you say for sure someone has insulted the national anthem.

During a soccer match between China and Hong Kong at the Mong Kok Stadium back in 2015, some local spectators booed and chanted pro-independence slogans when the national anthem was being played. Common sense tells us those who publicly booed and chanted had clearly insulted the anthem.

But what if you had smiled, picked your nose, or showed your middle finger while others were booing? Can it be easily proven you too had insulted the flag even though that was your intention? You could claim you were merely smiling at the spectacle of people booing, really needed to pick your nose, and were giving the middle finger to those who booed.

The proposed law requires the national anthem to be played in the Legislative Council at the start of swearing-in ceremonies for members. What if members choose not to be in the Legco chamber, or choose to sit down, when the anthem is played? What if members suddenly dash out during the anthem?

They could claim they urgently needed to use the toilet or to pass gas and didn’t want to stink up the chamber. Can prosecutors easily prove mens rea – a person’s mental intention to commit a crime – in such cases?

The government has glossed over the ambiguities in the proposed law by saying people should use their common sense in deciding whether they are insulting the anthem or showing dignity. But as the chairman of the Civic Party, Alan Leong Kah-kit, told me in a TV interview, people have different definitions of what common sense is. There is no legal definition for it.

Some Legco members may feel sitting down with dignity while the anthem is being played still shows respect. Others may define respect as standing up. Some may feel staying away during the anthem shows respect because they don’t like the tune.

The proposed law so lacks clarity that many lawyers and politicians say the wording makes disrespecting the anthem too subjective. Hong Kong’s criminal law is based on objective certainty, not vagueness. There are already fears the law gives the government an excuse to disqualify Legco members who sit down or don’t show up during the anthem.

Critics say the wider ramification of the law is that it restricts free speech. Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen countered that free speech has limits and the limit applies to insulting the anthem.

Compare that to what US Supreme Court Justice William Brennan said in 1990 when the court ruled that burning the flag is part of free speech. He made clear free speech is a bedrock of the American Constitution and the government had no right to prohibit the expression of an idea.

Some years ago, I received a video on my mobile phone showing a Hong Kong woman at a dinner party making fun of China’s national anthem by mockingly changing the lyrics. It was on my phone for over a year before I deleted it to save space. If I still had it on my phone, would that be a crime under the proposed anthem law?

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A Hong Kong-born American citizen who has worked for many years as a journalist in Hong Kong, the USA and London.