Reports on Tuesday that the NPC Standing Committee (NPCSC) is considering an amendment to the Criminal Law to prescribe harsher punishment for disrespecting China’s national anthem seem to have taken many by surprise. (They wouldn’t have been if they had been reading our Blog!) Some question the necessity of such a move if the conduct was already criminalized by the National Anthem Law (it was not). Some wonder whether the amendment will be applied to Hong Kong and Macau (it won’t be). Here in this post, we answer a few of such questions on the National Anthem Law, the newest Criminal Law amendment, and their implications for Hong Kong.
1. What are the relevant items on the agenda of the ongoing NPCSC session?
There are three items on the agenda that are relevant to our discussion here: Two draft decisions that would list the National Anthem Law in Annexes III to Hong Kong’s and Macau’s Basic Laws, respectively—that is, to apply the Law to the two cities; and a draft amendment to the mainland’s Criminal Law.
2. When are these three bills going to be passed?
The two decisions will be passed by the NPCSC at the end of its current session on November 4. It is highly likely that the Criminal Law amendment will be passed on the same day as well.
3. What is the content of the Criminal Law amendment?
According to the Legal Daily, the amendment seems to contain only a single article that will add a second paragraph to Criminal Law article 299 (which criminalizes desecration of China’s national flag and emblem) to read:
Article 299: [Paragraph 1 omitted]
Those who deliberately alter the lyrics or the score of the national anthem of the People’s Republic of China, or perform or sing the national anthem in a deliberately distorted or derogatory manner, or insult the national anthem in any other manner, in a public venue, where the circumstances are serious, are sentenced in accordance with the provisions of the previous paragraph [i.e., sentenced to fixed-term imprisonment of up to three years, short-term detention, controlled release, or deprivation of political rights.]
4. Aren’t such acts already criminalized by article 15 of the National Anthem Law?
No. Even though the acts punishable under article 15 are (almost) identical to the ones described in the proposed Criminal Law amendment, article 15 provides for only administrative punishment—the type that could be imposed by the police directly without court trials.
Article 15: Whoever deliberately alters the lyrics or the score of the national anthem, or performs or sings the national anthem in a deliberately distorted or derogatory manner, or insults the national anthem in any other manner, in a public venue, is to be warned or detained for up to 15 days by the public security organs; criminal responsibility is pursued in accordance with law where a crime is constituted.
5. Then what is the purpose of the second clause (“criminal responsibility is pursued in accordance with law where a crime is constituted”) of article 15 ?
The second clause of article 15 is merely a standard reference to the Criminal Law, where all but one crimes on the mainland are listed. (The sole exception is the crime of fraudulent purchase of foreign exchange (骗购外汇罪), created in a 1998 NPCSC decision. After 1998, every new crime has been written in the Criminal Law itself.) Such a clause is found in almost every law except the Criminal Law.
6. If the acts punishable under the two provisions are identical, why does the Criminal Law prescribe harsher penalties?
It does so because the proposed amendment authorizes criminal punishment only “where the circumstances [in which one engaged in the prohibited acts] are serious.” (It is usually up to the Supreme People’s Court to interpret what constitutes serious circumstances.) If the circumstances are less than serious, article 15 of the National Anthem Law will instead be basis for punishment.
7. Will the NPCSC apply this Criminal Law amendment to Hong Kong and Macau?
8. How will Hong Kong implement the National Anthem Law locally?
Because Hong Kong has in the past implemented the National Flag Law and the National Emblem Law—both applied to Hong Kong through Annex III—by way of local legislation (specifically the National Flag and National Emblem Ordinance), we expect it to do the same with respect to the National Anthem Law.
9. What will be the punishment for disrespecting the national anthem in Hong Kong?
Probably 3 years of imprisonment plus a HK$50,000 fine. This is the penalty for desecrating the national flag or emblem that is prescribed by article 7 of the Flag and Emblem Ordinance, which was likely modeled after article 299 of the mainland’s Criminal Law. The Hong Kong legislature will likely replicate the amended article 299 again to criminalize national anthem disrespect.
Article 7: Protection of national flag and national emblem
A person who desecrates the national flag or national emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level 5 [i.e., $50,000] and to imprisonment for 3 years.保护国旗、国徽任何人公开及故意以焚烧、毁损、涂划、玷污、践踏等方式侮辱国旗或国徽，即属犯罪，一经定罪，可处第5级罚款［即$50,000］及监禁3年。
10. Will a court find the criminalization of national anthem abuse in violation of the Hong Kong Basic Law (and the International Covenant on Civil and Political Rights incorporated thereinto)?
Not sure, but the Hong Kong Court of Final Appeal held in HKSAR v. Ng Kung Siu that article 7 of the Flag and Emblem Ordinance did not violate the Basic Law. (We didn’t read the case so won’t explain the Court’s reasoning here.)