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China/Hong Kong: National Anthem Law Under Consideration

(July 18, 2017) On June 27, 2017, the Standing Committee of China’s National People’s Congress (NPC) published a draft National Anthem Law for consideration. The public has one month, from June 28 to July 27, to submit their opinions on the draft.  (Guoge Fa Cao’an Zhengqiu Yijian [Draft National Anthem Law Soliciting Public Opinions], NPC official website (June 27, 2017); Zhonghua Renmin Gongheguo Guoge Fa (Cao’an) [PRC National Anthem Law (Draft)] (Draft Law), Westlaw China online subscription database; National Anthem Law of the P.R.C. (Draft), CHINA LAW TRANSLATE (June 28, 2017) (unofficial English translation).)

According to the draft law, malicious revisions to the lyrics or derogatory performances in a public venue that damage the solemn image of the “March of the Volunteers,” the national anthem of the People’s Republic of China, are acts punishable with up to 15 days’ detention. (Draft Law, art. 14.)  The draft law specifies that the public security organs (police) are to decide on the detention, which is a form of administrative sanction but not a criminal punishment because the latter must be a sentence handed down by the court.  (Id.)  Under China’s Criminal Law, desecration of the national flag or national emblem in a public venue, such as intentional burning, mutilating, scrawling on, defiling, or trampling upon the national flag or national emblem, is criminally punishable by up to three years’ imprisonment.  (PRC Criminal Law (adopted by the NPC on July 1, 1979, revised on Mar. 14, 1997), art. 299, NPC official website (in Chinese).)

The draft law also prescribes the occasions when the national anthem should be played and the applicable rules of etiquette. (Draft Law, arts. 4 & 6).  The draft law specifically prohibits performances of the song at private funerals or other events deemed improper and its use in advertisements or as background music in public places.  (Id. art. 10.)  Furthermore, the draft law requires that the national anthem be included in the first-grade textbooks of elementary schools, and it states that elementary schools and middle schools should regard singing the song as an important part of patriotism education and organize their students to sing it. (Id. art. 11.)

Standard musical notation and official versions of the national anthem are to be published on the official State Council website, according to the draft law. (Id. art. 9.)  Performance of the song is available for streaming and downloading on the website.  (Zhonghua Renmin Gongheguo Guoge [PRC National Anthem], State Council website (last visited July 6, 2017).)

Once passed, the law might be added to Annex III of the Basic Law of the Hong Kong Special Administrative Region (SAR) as an additional national law to be applied in the SAR, while Hong Kong “would be allowed to make adjustments of the national law to suit Hong Kong’s situation, such as on the penalties”; the 15-day punishment of administrative detention for certain abuses as provided for by the draft law is believed not lawful in Hong Kong. (Joyce Ng, ‘Law to Stop Abuse of China’s National Anthem Would Extend to Hong Kong … But in Revised Form,’ SOUTH CHINA MORNING POST (June 27, 2017).)  The National Flag Law and the National Emblem Law are both included in Annex III of the Basic Law, which are applied “by way of promulgation or legislation” by the SAR.  The Hong Kong SAR enacted the National Flag and National Emblem Ordinance, effective on July 1, 1997, to provide for the use and protection of the national flag and national emblem in the SAR. (Decision of the Standing Committee of the National People’s Congress on the Addition to or Deletion from the List of National Laws in Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted by the NPC Standing Committee on July 1, 1997), BASICLAW.GOV.HK; Instrument A401 National Flag and National Emblem Ordinance (July 1 1997), HONG KONG E-LEGISLATION.)