LCQ1: Enactment of a local national anthem law
The National Anthem Law of the People's Republic of China (National Anthem Law) came into force on the Mainland on the 1st of October this year. It has been reported that that piece of national law will be listed in Annex III to the Basic Law and applied locally by way of legislation by the Hong Kong Special Administrative Region (SAR). In this connection, will the Government inform this Council:
(1) given that in response to a question on the retrospective effect of the local national anthem law recently, the Chief Executive indicated that "normally, not many enactments in Hong Kong come with retrospective periods, but it does not mean that there is none", but Article 12 in Part II (Hong Kong Bill of Rights) of the Hong Kong Bill of Rights Ordinance, which implements Article 15 of the International Covenant on Civil and Political Rights that applies to Hong Kong, stipulates that there are no retrospective criminal offences or penalties, whether the authorities will ensure that the local national anthem law complies with the requirements of Article 12;
(2) which of the articles in the National Anthem Law will be applied in SAR through the local national anthem law; if Articles 5 and 11 of the National Anthem Law will be applied in SAR, how the following contents of these Articles will be applied under the local national anthem law: "[t]he State calls upon citizens and organizations to perform and sing the national anthem on appropriate occasions to express patriotic sentiments", and "[s]econdary and primary schools shall make the national anthem an important part of patriotism education, organize the students to learn to sing the national anthem, and educate the students on the history and spiritual connotation of the national anthem and to obey the etiquette for performing and singing the national anthem"; and
(3) whether the publication of works of secondary creation of the national anthem on the Internet will be made a criminal offence under the local national anthem law; if so, of the details (including the considerations for determining the level of penalty); if not, the reasons for that?
Our consolidated reply to Dr Hon Wong's question is as follows:
According to Paragraphs 1 to 3 of Article 18 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law), the laws in force in the Hong Kong Special Administrative Region (HKSAR) shall be the Basic Law, the laws previously in force in Hong Kong as provided for in Article 8 of the Basic Law, and the laws enacted by the legislature of the Region. National laws shall not be applied in the HKSAR except for those listed in Annex III to the Basic Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region. The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the HKSAR and the government of the Region. Laws listed in Annex III to the Basic Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by the Basic Law.
The National Anthem Law of the People's Republic of China (the National Anthem Law) was adopted at the 29th session of the Standing Committee of the 12th National People's Congress on September 1, 2017, and has come into force nationwide since October 1, 2017.
Similar to the national flag and the national emblem, the national anthem is the symbol and hallmark of the nation. The National Anthem Law is a national law outside the limits of the autonomy of the HKSAR, and as such may be listed in Annex III to the Basic Law pursuant to Article 18 of the Basic Law. After the adoption by the Standing Committee of the National People's Congress of the decision to add the National Anthem Law to Annex III of the Basic Law, the HKSAR Government will commence the preparation of local legislation for the National Anthem Law, and apply the Law in the HKSAR by way of appropriate local legislation in compliance with the constitutional and legal regime of the HKSAR. It would include taking into account the relevant provision of Article 12 of the Hong Kong Bill of Rights Ordinance.
Since the National Anthem Law has yet to be included in Annex III of the Basic Law and the local legislative process has yet to commence, it is premature to comment on individual provisions and details at the present stage. In the course of enacting the relevant local legislation, the HKSAR Government will consult the Legislative Council (LegCo) and the public and discuss the legislative proposals.
With respect to primary and secondary education, the Education Bureau has earlier indicated that the learning contents of the national anthem have already been incorporated into the subject curricula (such as General Studies and Music) at primary and secondary levels and in Moral, Civic and National Education. Starting from the junior primary level, students have ample opportunities in and outside lessons to sing the national anthem. Schools generally play the national anthem during the flag-raising ceremony on important days and special occasions, such as speech day and sports day. The Education Bureau will give due attention to the local legislation for the National Anthem Law, take prompt action to review the curriculum and administrative arrangements, and update the learning and teaching resources so as to support schools in the effective implementation of the Constitution and Basic Law Education, as well as to develop in students a respect for the national anthem.
The HKSAR Government will further discuss the relevant offences and levels of penalty during the local legislative stage. In general, the laws in the physical world are applicable to the cyber world based on actual circumstances. The Police often appeal to the public to use the Internet properly and lawfully, and to refrain from sending any messages that, for example, are irresponsible or incite others to engage in illegal activities. In case of any illegal activities online, the Police shall collect evidence for follow-up investigations.
Mr President, as I have mentioned just now, LegCo will have ample opportunities to discuss and scrutinise the local legislation for the National Anthem Law during the legislative process. I look forward to working with LegCo jointly and effectively on the local legislation for the National Anthem Law.
Ends/Wednesday, November 1, 2017
Issued at HKT 12:35
Issued at HKT 12:35