除違反思想、表達及教學自由外， 條文概要建議的條文十分模糊，令市民容易誤墮法網。與《國旗及國徽條例》不同的是，《國歌法》及條例概要均沒有徹底介定何種行為會被視為「侮辱國歌」。根據條文概要中比照《國歌法》第15條，只要「任何人公開及故意篡改國歌歌詞、曲譜，以歪曲、貶損 方式奏唱國歌，或以其他方式侮辱國歌」即可判第 5 級的罰款及監禁 3 年。更嚴重的是，當中「或以其他方式侮辱國歌」的詮釋，可延伸至條文概要中描述的其他本不屬刑事的行為，包括比照《國歌法》第6條的「有損國歌尊嚴的奏唱形式」及第7條的「在奏唱國歌時，當肅立，舉止莊重」。而《國歌法》第7條提及「場合」一詞，但是否所有奏唱國歌的場合，市民亦須「肅立，舉止莊重」，條文概要並無清晰定義，實際執行時必然嚴重影嚮市民日常生活。條文概要如此含糊其詞，實令人憂慮日後會否有人以《國歌條例》以言入罪或思想入罪，引起寒蟬效應，成為政權打壓異見聲音的工具。條文如此模糊，即警察一旦主觀認為某作為（甚至不作為）屬侮辱國歌，已獲法律授權採取拘捕或其他執法行動，變相大幅擴大執法者權力， 有違《基本法》及《人權法案》賦予香港人不受任意逮捕的人身自由與公民權利。條文概要現時建議施加的刑事責任，絕非輕微，一經定罪既會構成刑事紀錄，違者更有可能被判處監禁，如此強迫市民尊重國歌，屬嚴重不合比例。
Joint Statement on Local Legislation for the National Anthem Law
We are groups or organizations which are deeply concerned about the proposed local legislation to implement the Law of the People’s Republic of China on the National Anthem (the “National Anthem Law”).
By way of background, the Constitutional and Mainland Affairs Bureau has presented to the Legislative Council Panel on Constitutional Affairs an outline of the proposed content of the National Anthem Bill (the “Outline”) and held two public hearings in the Legislative Council (“LegCo”) after the Standing Committee of the 12th National People’s Congress’s (“NPCSC”) adoption of the decision to add the National Anthem Law to Annex III to the Basic Law in 2017 amongst controversy.
We maintain that nothing in the Outline itself or the government’s recent supplementary responses is capable of addressing, still less resolving, our concerns– despite repeated assurances from Patrick Nip Tai-Kuen, the Secretary for Constitutional and Mainland Affairs, that the proposed law should give no cause for concern.
Taking note that the proposed law:
1) Undermines freedom of thought and creation;
Freedoms of thought and creation of Hong Kong citizens are entrenched by the Basic Law and international conventions. Article 16(2) of the Hong Kong Bill of Rights relevantly provides that “[E]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kind… or through any other media of his choice”.
The National Anthem Law imposes an ideology on Hong Kong citizens by requiring them to respect the national anthem to such an extent that will “promote patriotism, and to cultivate and practice the core values of socialism”. This clearly violates freedom of thought. The Outline further suggests that any person who “alter[s] the lyrics or the score of the national anthem, or perform[s] or sing[s] the national anthem in a distorted or derogatory manner” will thereby incur criminal liability. Since netizens have created and published derivative works of the national anthem over the years, if the law is enacted as presently proposed, it will undoubtedly have the effect of suppressing freedom of creation.
2) Undermines freedom of education;
Article 136 of the Basic Law provides that, “[O]n the basis of the previous educational system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of education”; whereas Article 137 of the Basic Law stipulates that “[E]ducational institutions of all kinds may retain their autonomy and enjoy academic freedom. They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region”.
Education has always been within Hong Kong’s autonomy. Likewise, the curricula and syllabuses of primary and secondary schools have always, in accordance with established mechanisms, been determined on the basis of the teachers’ own professional judgment, rather than by statutory prescription by the Hong Kong and Central Governments. In fact, the current curriculum documents of the Moral and Civic Education already contain guidelines according to which primary and secondary schools should teach students the national anthem and its history. To now add the National Anthem Law to Annex III, and thence through local legislation compel primary and secondary schools to teach the national anthem, would be setting an extremely bad precedent of undermining the integrity of the established mechanisms and depriving schools of their autonomy in education.
3) Includes use of vague criminalizing language, and is drafted without prior public consultation
The Outline mandates a fine at level 5 and an imprisonment for 3 years for any person who “publicly and willfully alters the lyrics or the score or the national anthem, performs or sings the national anthem in a distorted or derogatory manner, or insults the national anthem in any other manner”. In stark contrast to the National Flag and National Emblem Ordinance, Cap. 2401, neither the National Anthem Law nor the Outline clearly specify what acts are “insult[ing]” to the national anthem. Its scope, if extensively interpreted, may encompass the other non-criminal acts detailed in the Outline, including performing and singing “in a manner harmful to the dignity of the national anthem” and not “stand[ing] and deport[ing] respectfully” at “the occasion where the national anthem is performed or sung” (referencing Article 6 and 7 of the National Anthem Law respectively, which are also drafted in broad and imprecise language). Should citizens stand respectfully at all occasions where the national anthem is sung? What are the legal requirements under the term “respectfully”? Unintended offenses resulting from over-general definitions could be anticipated.
Worse still, the local anthem law could have chilling effects on dissent and become a tool for the government to suppress opposition. The vague statutory language may subject citizens to subjective law enforcement which amounts in effect to an extension of police powers. It, therefore, violates the right to liberty and freedom from arbitrary arrest guaranteed by the Basic Law and the International Covenant on Civil and Political Rights (“ICCPR”), which is entrenched by Article 39 of the Basic Law. Given the hefty criminal penalty, including criminal conviction and potentially even imprisonment, to which an offender may be liable, the proposed law can in no way be styled proportionate.
Lastly, the government has not hitherto provided a clear local legislation timetable or carried out any formal consultation to address the public concerns thus far expressed. The local legislation will affect all Hong Kong citizens; anyone can fall victims to not meeting the legal requirements and commit unintended offenses. Public hearings held by LegCo are no substitute for a formal consultation conducted by the government, not least because it is unlikely that every concerned member of the public can find time to attend such hearings. The government’s reluctance to formally consult the public smacks of an attempt to circumvent proper public scrutiny and implement the National Anthem Law as quickly as possible.
Furthermore, there is at present far from any public consensus as to the necessity of compelling by law primary and secondary schools to teach the national anthem and criminalizing insulting acts towards it, not least in relation to criminalization which deviates from international common practice. All these are still under debate, and should not simply be assumed in favor of the legislation. Without prior public consultation, the proposed law may run counter to the people’s will and will as such fundamental conflict with the spirit of the criminal law rooted in the common law.
We, therefore, demand that the government withdraw the proposal and launch a genuine public consultation by way of a white paper immediately.
民間人權陣線 Civil Human Rights Front
香港藝術家工會 Hong Kong Artist Union
Progressive Lawyers Group 法政匯思
公民黨 Civic Party
民主黨 The Democratic Party
Photo credit: 香港01