Last month, the NPC Standing Committee (NPCSC) conducted an initial review of a draft National Anthem Law (Draft) (an English translation of which is attached to this post). Much of the media coverage so far has focused on provisions that ban the use of the national anthem at “inappropriate occasions” such as funerals and provide for up to 15 days of detention for “distorted or derogatory” rendition of the anthem, titled “March of the Volunteers.” With only 15 articles, the Draft contains language that is fairly easy to understand. We therefore won’t spend time scrutinizing its content here. Instead, we will take a look at likely developments surrounding the Draft, based on this report by Xinhua.
Criminal Penalties
During the deliberations, at least four NPCSC members advocated harsher—and criminal—penalties for behavior that is only subject to administrative detention under the Draft: malicious alteration of the lyrics of the national anthem and deliberatively distorted or derogatory performances of the anthem, in public spaces.
Under Chinese law, the police may—subject to minimal oversight by the courts—unilaterally punish certain violations of law with detention of up to 15 days. But those violations are not considered “crimes,” which are generally punishable by lengthier sentences and even death; courts trials are also required for convictions.
We believe the NPCSC will follow its members’ suggestions and prescribe criminal punishment for the conduct described earlier, especially considering that desecration of China’s national flag and emblem has been criminalized as early as 1990. All three—the national flag, anthem, and emblem—are considered symbol and sign of China.
But the National Anthem Law itself won’t make that change—only another amendment to the Criminal Law will. We make this assertion because since 1997, the NPCSC has added every single new crime to the Criminal Law, even though it may well pass separate criminal statutes, as it had done before 1997. The Draft will, however, be amended to include a reference to the Criminal Law.
Because the Criminal Law was last amended in 2015, and because on average Criminal Law amendments are enacted three years apart, we don’t expect a new amendment—therefore criminalization of national anthem abuse—for another year or two. (We do expect the National Anthem Law to pass within the year—late August at the earliest.)
Application to Hong Kong and Macau
Qiao Xiaoyang, chairman of the NPC Law Committee (which recommends revisions to all draft laws), predicted that the National Anthem Law, once passed, would be listed in Annexes III to the Basic Laws of Hong Kong and Macau, so that it will be implemented in those two regions.
Under Article 18 of both Basic Laws, national laws do not apply to Hong Kong or Macau unless they relate to matters outside the limits of the two cities’ autonomy and the NPCSC lists them in Annexes III to the cities’ mini-constitutions. At present, 12 and 11 national laws have been applied to Hong Kong and Macau, respectively, including the National Flag Law and the National Emblem Law.
Should the NPCSC decide to apply the National Anthem Law to Hong Kong and Macau as well—and we think it will—it needs to follow a three-step process during one single session. First, of course, it needs to pass the Law. Then, as required by the Basic Laws, it needs to consult with its two Basic Law Committees as well as the two cities’ governments. Finally, it will adopt decisions listing the Law in the two Annexes III. Since an NPCSC session only lasts around five days, the consultation step would likely occur well before the Law is approved.
The Law, however, won’t become enforceable in Hong Kong and Macau automatically. Instead, it must first be either promulgated by the cities’ government—that is, applied as written by the NPCSC—or implemented by way of local legislation, so that it could be adapted to the two cities’ distinct legal systems.
According to a 2015 research report by Hong Kong’s legislature, both the National Flag Law and the National Emblem Law were applied by way of local legislation. We expect—and so does Elsie Leung Oi-sie, vice chairwoman of the NPCSC Hong Kong Basic Law Committee—that the National Anthem Law will be implemented in Hong Kong in such a way as well. One key reason is that police-imposed administrative detention “is not lawful in Hong Kong,” as the South China Morning Post notes. We presume Macau would use the same method to implement the Law.
* * *
Members of the NPCSC have proposed additional changes to the Draft, and we will report which of them (if any) are adopted after the National Anthem Law is approved. In the meantime, we recommend everyone to read this excellent Quartz article on the fascinating story behind China’s national anthem.
National Anthem Law of the People’s Republic of China (Draft)
We completed, and Jeremy Daum subsequently refined, the following translation, which also appears on China Law Translate. We have made additional changes to the translation, for which Jeremy and CLT are not responsible. Blog-wide copyright license applies.
Article 1: This Law is drafted on the basis of the Constitution, so as to preserve the dignity of the national anthem, to regulate the performance, singing, playing, and use of the national anthem, to enhance citizens’ conception of the State, to carry forward the spirit of patriotism, and to cultivate and practice the socialist core values.
Article 2: The national anthem of the People’s Republic of China is the “March of the Volunteers.”
Article 3: The national anthem of the People’s Republic of China is the symbol and sign of the People’s Republic of China.
All citizens and organizations shall respect the national anthem and preserve the dignity of the national anthem.
Article 4: The national anthem shall be performed and sung on the following occasions:
(1) Opening and closing ceremonies of the National People’s Congress and all levels of local people’s congresses;
and opening and closing ceremonies of the National Committee and local committees of the Chinese People’s Political Consultative Conference;
(2) Constitutional oath-swearing ceremonies;
(3) Flag-raising ceremonies;
(4) Major celebrations, major award ceremonies, major commemorative ceremonies, national memorial ceremonies and the like, which are organized by any level of state organ;
(5) Major diplomatic activities;
(6) Major sporting events;
(7) Other occasions where it is necessary to perform and sing the national anthem.
Article 5: Performance and singing of the national anthem shall follow the lyrics and score as provided by this Law, the anthem’s lyrics must not be altered, and it must not be performed or sung in a form harmful to the anthem’s dignity or that affects the national image.
Article 6: When the national anthem is performed and sung, those present shall stand and deport themselves respectfully. When the national anthem is performed and sung at flag-raising ceremonies, those present shall face the flag; and uniformed military personnel, people’s armed police, people’s police, and other such personnel are to give a hand salute, and other personnel are to look on in respect.
Article 7: China National Radio, China Radio International, and China Central Television are to play the national anthem at prescribed times on National Day, International Labor Day, New Year’s Day, Spring Festival, and other important holidays and anniversaries.
Article 8: The occasions and etiquette for performing, singing, playing the national anthem in diplomatic activities are to be prescribed by the Ministry of Foreign Affairs.
The occasions and etiquette for military performances and singing of the national anthem are to be prescribed by the Central Military Commission.
Article 9: A competent department designated by the State Council is to organize the review and approval of the standard score for performances of the national anthem, and is to record the official recording of the national anthem to be played. The standard score and official recorded version of the national anthem shall be published on the Chinese Government’s website [www.gov.cn].
When performing, singing, or playing the national anthem on occasions provided for by Article 4 of this Law, the standard score and official recorded version of the national anthem shall be used.
The Ministry of Foreign Affairs and diplomatic institutions stationed abroad shall provide the foreign affairs departments of relevant countries with the standard score and official recorded version of the national anthem, for use in diplomatic activities.
The State Council administrative department for sports shall provide relevant international organizations with the standard score and official recorded version of the national anthem, for use in international sporting events.
Article 10: The national anthem must not be performed, sung, or played at private funeral events, or other inappropriate occasions.
The national anthem must not be used, or covertly used, in trademarks, advertisements, or as background music used in public venues.
Article 11: The national anthem is to be included in first-grade music textbooks for full-time primary schools.
Full-time secondary schools and primary schools shall make the lyrics and score of the national anthem an important part of patriotism education, and organize the students to learn to sing the national anthem.
Article 12: The news media shall actively publicize the national anthem and popularize knowledge about the etiquette for performing and singing the national anthem.
Article 13: All levels of local people’s governments are to conduct oversight and management of the performance, singing, playing, and use of the national anthem within their respective administrative regions.
Relevant departments, such as for education, culture, sports, public security, industry and commerce administration, of all levels of people’s governments at the county level or above, as well as relevant military departments, are to conduct oversight and management of the performance, singing, playing, and use of the national anthem, within the scope of their respective duties and powers.
Article 14: Whoever maliciously alters the lyrics of the national anthem, or performs or sings the national anthem in a deliberately distorted or derogatory manner, in a public venue, damaging the solemn image of the national anthem, is to be detained for up to 15 days by the public security organs.
Article 15: This Law takes effect on ××–××–××××.
Appendix: National Anthem of the People’s Republic of China [score and lyrics not shown]
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