Retrospective anthem law would frustrate filibusters

Early last month the National People's Congress Standing Committee passed the National Anthem Law, stating that any people who did any act to abuse the national anthem were guilty of a criminal offense and liable to imprisonment for 15 days. It is stated that this national law is applicable to Hong Kong subject to the necessary administrative procedures under the Basic Law.

It is reported that the NPCSC will soon discuss the proposal to insert the National Anthem Law into Annex III of the Basic Law, for it to become applicable in Hong Kong.

According to Article 18 of the Basic Law, any national law included in Annex III can be effective "by way of promulgation or legislation by the Hong Kong Special Administrative Region". Based on past precedents of the National Flag and National Emblem Laws, the NPCSC chose to let the law be effective by way of "legislation by the HKSAR". There was no apparent problem at that time and the law was passed by the Legislative Council without much fuss.

However, the same cannot be said for the National Anthem Law. Even after the passing of the National Anthem Law last month, a group of young hooligans publicly jeered the national anthem before kick-off at two international soccer matches this month. On one occasion, many of them demonstrated vulgar and disrespectful body gestures; some even raising a big banner calling for "Hong Kong independence".

In the 20th anniversary ceremony of Hong Kong's return to China on July 1, President Xi Jinping stated in his speech: "Any attempt to endanger China's sovereignty... is an act that crosses the red line, and is absolutely impermissible." These organized soccer hooligans had clearly crossed the red line to challenge China's sovereignty.

Hence, it is unlikely the NPCSC would not take these incidents into consideration when debating how the National Anthem Law is to be included in Annex III. If past precedents are any guideline, they should anticipate a longer period of legislative stalemate as both pro-Western and anti-China political parties, such as the Civic Party, have already stated their intention to call for public consultation in order to delay the legalization process. As they are likely to employ filibustering tactics again over what is essentially a straightforward legislative matter, it is unlikely the local version of the national anthem law can be passed within 12 months. In the meantime, the central government and our 1.3 billion compatriots in Hong Kong and the Chinese mainland would be forced to put up with hooligans' continued abuse of the national anthem on various occasions while they use these opportunities to promote "Hong Kong independence".

It is therefore advisable that the NPCSC pre-empt further abuse by resorting to one of three options:

First option is using "promulgation" instead of the local legislative process. Its biggest advantage is that the law will have immediate effect and the 15 days imprisonment plus a criminal record should provide sufficient deterrence. The disadvantage is that the interpretation of the law, written in mainland legal language, might be subject to dispute in local courts.

The second option is for the NPCSC to announce at the same time that the law should have retrospective effect. Such a date should be set on a reasonable basis. It would probably be unfair to predate it to the passage of the national law, which is last month. But it should be perfectly reasonable to set it on a future date. It can be the date of the standing committee's declaration on Annex III, probably around Nov 1. In this case, those offenders in the past two events can be spared but the public has fair warning.

A third option is to set at a date three months afterwards, such as Feb 1, 2018. This means LegCo is expected to pass the law in three months' time, failing which the offense would have the retrospective effect as from that date, and their filibustering efforts would be meaningless.

In addition, the NPCSC should direct the SAR government to adopt the successful Hong Kong anti-corruption strategy in implementing the National Anthem Law, through effective measures in prevention, education and enforcement.

But after all is said and done, genuine respect for the national anthem can only come from the heart, and not be enforced through legislative means. For that to happen, we need to start with educating our children early on aspects of China's history and modern achievements they can take pride in. The anthem is but a welcome opportunity for them to vocalize their love of their motherland.

(HK Edition 10/27/2017 page12)