Lawmakers playing the Chinese national anthem as a confrontational tactic in the Hong Kong legislature could be breaking the law under a newly proposed bill to criminalise abuse of the song, the minister in charge of the bill warned on Thursday.
Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen also stressed that whether behaviour was deemed abusive would depend on if it was conducted “publicly … and with an intention to insult the anthem”.
The remarks came a day after the government unveiled legislation to criminalise any act disrespecting March of the Volunteers.
Anyone who publicly and intentionally insults the anthem, whether through the use of its lyrics or score, could risk a three-year jail term and a fine of HK$50,000. The government plans to introduce the National Anthem Bill to the Legislative Council on January 23.
Drawing more daily examples on Thursday morning, Nip said on a radio programme lawmakers who played the anthem to disrupt a Legco meeting then defended the act as freedom of expression risked the behaviour being interpreted as an insult as it was unnecessary.
When asked whether the rest of the people in the chamber must stand up and if the chairman had the right to accuse the lawmaker in question of breaching the rules of procedure, Nip said: “If people in general think the broadcast is not appropriate, I don’t think they have to follow. On the contrary, the one [who played the anthem] should think whether his or her behaviour is insulting.
“You want to express a view, but why is it necessary to play the anthem to achieve this?”
Citing a court case handled by the Court of Final Appeal in 1999, Nip said the court had agreed that freedom of expression came with limitations and that it should not be achieved by disrespecting or insulting the symbols of the country – including the national anthem, flag and emblem.
“The law does not limit your views but your means of expression. You can express your opinion in other ways, but please do not insult the anthem,” Nip said.
The bill allows authorities to take up to two years to prosecute offenders, as opposed to the prosecution time limit of six months for other crimes.
The extra time would help authorities tackle contraventions involving “a large crowd of unidentified culprits” such as anti-China soccer fans who have been known to boo the anthem at international matches in Hong Kong.
Nip added it was not easy to have a clear-cut definition of insulting behaviour as it depended on the circumstances. For example, a gambler too focused on a race to stand up solemnly for the anthem at a racecourse would not have broken the law as there was no intention to insult, Nip said.
“The most important standard is whether one has the intention to insult, and to do it deliberately and publicly,” Nip said.
“The most obvious [illegal act] is having a large group of people, deliberately and publicly, stating they would make a move which could be seen as insulting the anthem intentionally. This fits the crime elements under the bills.”
The bill will also officially require the anthem to be played when lawmakers and principal officials are sworn in.
It would not be used retroactively to punish offenders before the bill is approved by lawmakers, which pro-establishment lawmakers expect to happen by July.
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