Amendments to the National Flag Law

The National People’s Congress of the People’s Republic of China adopted a National Anthem Law in September 2017, setting strict punishments for anyone who disrespects the playing of “The March of the Volunteers” in mainland China.

Beijing introduced the law into Annex III of the Hong Kong and Macau Basic Laws on 4 November 2017, thus requiring both governments to draft local implementing legislation.

To that end, Hong Kong’s Legislative Council adopted a National Anthem Ordinance in 2020 [Legislation Publication Ordinance (Cap. 614), section 5]. The Preamble states that the legislation is enacted to promote patriotism. Part 2 spells out the standards for playing and singing the National Anthem, as well as listing the occasions upon which the national anthem must be played and sung. Part 3 creates new criminal offences, which provides in pertinent part:

 

(1) A person commits an offense if, with intent to insult the national anthem, the person publicly and intentionally-

(a) alters the lyrics or score of the national anthem; or

(b) plays and sings the national anthem in a distorted or disrespectful way

(2) A person commits an offence if the person publicly and intentionally insults the national anthem in any way.

(3) A person commits an offence if, with intent to insult the national anthem, the person intentionally publishes-

(a) altered lyrics or an altered score of the national anthem; or

(b) the national anthem played and sung in a distorted or disrespectful way.

(4) A person commits an offence if, with intent to insult the national anthem, the person intentionally publishes the insulting in any way of the national anthem.

(5) Except as provided under subsection (3) or (4), a person does not commit an offence under this section by publishing—

(a) altered lyrics or an altered score of the national anthem;

(b) the national anthem played and sung in a distorted or disrespectful way; or

(c) the insulting in any way of the national anthem.

(6) A person who commits an offence under this section is liable on conviction to a fine at level 5 and to imprisonment for 3 years.

(7) Proceedings may only be commenced for an offence under this section before whichever is the earlier of the following

(a) the end of the period of 1 year after the date on which the offence is discovered by, or comes to the notice of, the Commissioner of Police;

(b) the end of the period of 2 years after the date on which the offence is committed.

 

The law passed Hong Kong’s Legislative Council on 4 June 2020. From the perspective of Hong Kong, the law was passed in response to alleged insults against the national flag and anthem (mainly booing during sporting events) since the 2014 Umbrella Movement.

Beijing also introduced the law into Annex III of the Macau Basic Law on 4 November 2017, requiring Macau to adopt local implementing legislation. Pursuant to the second paragraph of Article 18 of the Basic Law of Macau, the laws listed in Appendix III to the Macao Basic Law are applied locally by publication or legislative act of the SAR.

Rather than adopt an entirely new piece of legislation, Macau’s efforts at compliance have been packaged as amendments, specifically "Amendment[s] to Law No. 5/1999 - Use and Protection of the National Flag, Emblem and Anthem.” An initial amendment came in January 2019, introducing punishments of up to three years behind bars or up to 10,000 patacas (HK$9,681). The anthem is required to play during National Day of the People’s Republic of China, the anniversary of Macau’s handover on December 20, New Year’s Day, May Day, and Labor Day. Local television and radio stations are also required to broadcast the anthem at set times, with permitted audio-visual materials provided by the Macau Government.

On 17 October 2020, the NPC passed a new amendment to the National Flag Law and the National Emblem Law, both taking effect on 1 January 2021. The amendments adds further prohibitions against acts that allegedly impair the dignity of the national flag and the national emblem, making it clear that the national flag shall not be discarded, hung upside down, or displayed or used in any other manner that undermines its dignity. In addition, the amendments also add additional occasions for raising the National Flag; additional regulation of the requirements for the raising of the National Flag ceremony; strengthening National Flag education; and clarification regarding monitoring entities of the National Flag.

The Macau Government presented the draft to the Legislative Assembly on 19 April 2021, and a revised bill followed on 24 June 2021. According to the drafting notes, the main content that the proposed law intends to change are (1) encouragement to residents to use the National Flag on appropriate occasions and express provision for the affixing of the National Emblem by residents on solemn occasions; (2) prediction of the measures and proportions of the National Flag and its pole, as well as the National Emblem; (3) prediction of situations in which coverage by the National Flag is permitted in the event of the death of certain personalities; (4) provision for the prohibition of the use of the National Flag and Emblem in design and model registration; (5) provision for the prohibition of the raising or placing of the National Flag in an inverted manner, or of its careless disposal; (6) integration of the National Flag and Emblem in primary and secondary education; (7) dissemination of the National Flag and Emblem through the media; (8) provision for the seizure of the National Flag and Emblem, whose display or use violates the law, and ancillary sanctions; and (9) standard measures for the flag and seal.

Probably the most striking details of which regard a stated integration into the education curriculum and assignment of jurisdiction to government agencies over listed offenses (author’s unofficial translation):

 

Article 10. Integration of the National Flag, Emblem and Anthem in Primary and Secondary Teaching.

The Flag, the Emblem and the National Anthem are integrated in the primary and secondary education of the regular education of the local school system, organizing the students to learn to sing the National Anthem, teaching them to understand the history and spirit of the Flag, of the Emblem and National Anthem, to comply with the rules on the raising and use of the National Flag and to respect the ceremonial during the raising ceremony of the same and the ceremonial relating to the instrumental and vocal performance of the National Anthem.

 

Article 14. Inspection.

[1] …

[2] …

3. Whenever an inspection agent of the Customs Services, the Public Security Police Corps or the Directorate of Economic and Technological Development Services, in the exercise of their functions, verifies any administrative offense provided for in this law, they must draw up a notice.

 

 

 

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