Legislative activity around the National Anthem Law

A question recently came up on the Chinalaw listserv regarding some Chinese news reports about (a) PRC legislation providing criminal penalties for violating the National Anthem Law, and (b) PRC legislation listing the National Anthem Law in Annex III of the Hong Kong Basic Law, and corresponding legislation in Hong Kong to make disrespecting the national anthem a punishable offense. Since others may have the same questions, here’s my response:

The situation looks pretty clear to me. They are amending the Criminal Law, not the National Anthem Law (NAL). The National Anthem Law now provides for detention of up to 15 days in case of certain specified acts. Although the NAL doesn’t say so, this is a so-called administrative (not criminal) punishment. The NAL also states (tautologically) that if the Criminal Law is violated, the violator will bear responsibility. But we don’t need a National Anthem Law to tell us that. In other words, the National Anthem Law does not add any new criminal offenses to Chinese law. And the Criminal Law as it stands doesn’t have anything specifically about disrespecting the national anthem. Thus, they are now going to amend the Criminal Law to cover disrespecting the national anthem.

Implications for Hong Kong: None as a specific result of this action to amend China’s Criminal Law. This is a matter of mainland criminal law. For disrespecting the national anthem to become a punishable offense in HK, it seems accepted that the following procedure would have to be followed: (1) The National Anthem Law gets listed in Annex III to the Basic Law. (2) The Hong Kong government adopts local legislation to transform it into local law. That local legislation would specify what constitutes disrespect and the penalties therefor.

Actually, as far as I can see, there is (subject to the caveat of the next paragraph) nothing preventing the HK government from going to step 2 even without step 1 taking place, but both mainland and HK authorities seem to think step 1 is necessary, so presumably that will happen eventually. That’s what the second news item is about.

Enacting punitive provisions into local HK law does, of course, raise questions about whether such provisions would violate the International Convention on Civil and Political Rights (ICCPR) and HK’s Bill of Rights Ordinance, which enacts the ICCPR into local law. Art. 39 of the Basic Law provides that the provisions of the ICCPR shall be in force in HK and implemented through domestic legislation (which has been done via the Bill of Rights Ordinance).

[POSTSCRIPT: Just saw this excellent blog post at the NPC Observer blog. It’s consistent with what I say above, but adds more useful details.]

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