National Anthems are universal across the world. They are regularly created during turbulent times. The French National Anthem, La Marseillaise, was written in 1792, several years after the French Revolution. It was created as a song aimed at mobilizing citizens in the war between France and Austria. It became the French National Anthem in 1795 but was dismissed as such by Napoleon after he came to power in 1804. For a time, playing of La Marseillaise was banned in France until it was restored as the National Anthem in 1879. It has remained so ever since.
The National Anthem of the People’s Republic of China (PRC) has, arguably, an even more event-forged history both in terms of its origins and subsequent status. Whilst not so recognizable as La Marseillaise, it is still distinctive and musically moving. The PRC National Anthem is very much in the news today in Hong Kong (and beyond). There are two primary reasons for this.
First, the PRC recently enacted a new National Anthem Law (NAL) which took effect on October 1, 2017 (the PRC National Day). This new NAL specifies significant sanctions, including imprisonment for up to three years, for persons demonstrating certain forms of willful disrespect for the National Anthem.
This new NAL is being added to Annex III of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) by the National People’s Congress Standing Committee (NPCSC) for local application of the new NAL in the HKSAR. This cross-border addition to the laws of the HKSAR is authorized by Article 18 of the Basic Law which allows for a notably limited range of PRC laws (related to defence, foreign affairs and matters outside the autonomy of the HKSAR) to be applied within Hong Kong using this mechanism. The listing alone of such laws in Annex III by the NPCSC does not make them effective within the HKSAR; either the HKSAR Legislative Council (LegCo) or the HKSAR Government must apply the relevant Annex III law, according to Article 18, either by enacting a local Ordinance or by Government Proclamation.
Secondly, prior to the enactment of the new NAL — and perhaps more so since — a segment of the Hong Kong independence movement has taken to directing verbal and visual abuse at the National Anthem when it is played at soccer matches in Hong Kong where the HKSAR team is playing.
In this essay, I want first to review the origins of the PRC National Anthem and the Hong Kong independence related protests against the National Anthem. Next I want to explore, using the new NAL example, some key aspects of the operation on the Annex III mode for applying National Laws within the HKSAR. This Annex III law-deployment system is an under-researched area which looks set to grow in importance.
The National Anthem — Then and Now
It was not until October 1914 that China acquired its first National Anthem, as the Qing Dynasty was collapsing. Six days after its promulgation, the Wuhan Uprising began triggering the final steps towards ending over 2,000 years of imperial rule in China and the creation of the Republic of China.
The PRC National Anthem is entitled The March of the Volunteers. The words were first composed, as a poem, in 1934 by Tian Han, a member of the Chinese Communist Party (CCP) whilst he was imprisoned by the Kuomintang (KMT). The Japanese invasion of Manchuria was by then accomplished and Japanese expansionism in China was well underway. By 1937, the Second Sino-Japanese War had commenced. The poem was soon used by Tian to provide the lyrics for a song within a patriotic Chinese film entitled Children of Troubled Times.
The poem was set to music (in the form we know today) around April 1935 by a gifted young musician, Nie Er, who was from Kunming and also a CCP member. This was done while he was in Japan (possibly en route to the Soviet Union). Soon after composing this music, Nie Er tragically died, in July 1935, in a swimming accident in Japan.
The March of the Volunteers became the provisional National Anthem of the new PRC in 1949. During the Cultural Revolution, words were changed in the anthem and the patriotic song The East is Red became the unofficial anthem of that overpowering movement. In 1982, the original 1935 version of The March of the Volunteers became the PRC National Anthem once more. In 2004, The March of the Volunteers was further identified as the National Anthem by an amendment to the 1982 PRC Constitution.
Tian Han remained artistically active after 1949. His work was denounced, in February 1966, in The People’s Daily as “a poisonous weed,” as the Cultural Revolution began. A play he wrote in 1961, seen as critical of the policies of Mao Zedong, is now regarded as a one of the factors leading to the commencement of the Cultural Revolution. Tian Han died in jail in 1968.
The March of the Volunteers was a call to action to resist the Japanese invaders, above all, although Tian and Nie, as CCP members, were both associated with the resistance against the KMT regime within China.
In 1940, the remarkable African-American bass-baritone, Paul Robeson was introduced to The March of the Volunteers in New York by Liu Liangmo, another Chinese activist from Shanghai. Liu was visiting the US to promote the Chinese cause during the war (which the US was about to join, after the Japanese attack on Pearl Harbor in December 1941).
Robeson was especially active in the US Civil Rights Movement of that era and he empathized readily with the position of the Chinese as Japan extended its exceptionally brutal rule across much of China. Robeson loved the song and soon learned it in Mandarin. He sang it in public at the famous Lewisohn Stadium in West Harlem in 1940 and he later recorded the song (with a young chorus made up of Chinese laundry workers in New York). By 1944, The March of the Volunteers was put to work by the US military in a stirring, Frank Capra-directed propaganda film entitled The Battle of China.
Although the song had been popular with KMT forces during the war against the Japanese, it fell into serious disfavor by 1949 in view of its status within the PRC. This remained the case in Taiwan until around 1990 by which time the winding down of KMT single-party control of Taiwan was underway.
The PRC National Anthem was incorporated from July 1, 1997, as the National Anthem to be played in the HKSAR as a listed National Law within the original list in Annex III of the Basic Law. It is thus played at many official and quasi-official events in Hong Kong. It is played, inter alia, before the start of soccer matches where the Hong Kong team is playing. For the last several years and increasingly over the last year, the National Anthem has been the object of well-organized verbal and written scorn at such football matches. If anything, the intensity of these protest-attacks has grown since it was announced that the new NAL would be applied in Hong Kong.
It is reasonable to surmise that most of these modern protestors, as they direct their hostility at The March of the Volunteers, would have a meagre understanding, at best, of the remarkable history surrounding this song. Still less, perhaps, would they realize that The March of the Volunteers was used as a rallying and energizing song by mass protesters in Tiananmen Square, in Beijing, in mid-1989.
Legal and Constitutional Dimensions
As noted above, the new NAL, which came into force in the Mainland on October 1, is due to be applied in Hong Kong (relying on Article 18 and Annex III of the Basic Law), in a form adapted for the HKSAR Common Law system, fairly soon.
Most debate (implicitly accepting that the law will be applied in Hong Kong) has thus far focused on the question of whether this law could be applied retroactively in Hong Kong. This discussion has arisen, above all, because of the continuing verbal and written scorn directed at the National Anthem at certain sporting events in Hong Kong. Some have argued that to discourage such behavior, retroactive implementation of the law should be considered.
In fact, based on Government statements and statements from certain members of the establishment group within the HKSAR, it looks unlikely that there will be any attempt to apply the new NAL retroactively in the HKSAR.
Nevertheless, it is useful to explore the possibility of retroactive application in order to raise some important questions about the constitutional operation of parts of the Basic Law which have previously been little discussed.
Retroactivity in Common Law Systems
First, we should consider various claims which been made in Hong Kong that retroactive laws — sometimes called retrospective laws — are not to be found within the criminal laws of the Common Law system. These arguments are unsound. The highest courts in the UK and Australia, for example, have each given the green light to retroactive criminal laws. Those courts have stressed that retroactive criminal laws should be used only in exceptional circumstances. Still, it clear that if the new NAL were to be applied retroactively in Hong Kong, this would be broadly consistent with long-standing practice within the Common Law tradition.
The Basic Law
The Bill of Rights incorporated directly into the Basic Law in Chapter 3 does not stipulate that retroactive criminal law is barred in the HKSAR. However, the International Covenant on Civil and Political Rights (ICCPR) is directly incorporated into HKSAR law, and indirectly but firmly incorporated into the Basic Law by Article 39 which states that the ICCPR shall remain in force in Hong Kong. The essence of the ICCPR forms the substance of the Bill of Rights Ordinance (BORO) enacted during the British Hong Kong era, in 1991. Article 12 of the BORO (based on Article 15 of the ICCPR) provides that:
(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
(2) Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.
Article 12 of the BORO clearly establishes a barrier to the application of retroactive criminal law in the HKSAR. But this may not be the end of the matter. First, Article 12 only applies to criminal offences. It would therefore not appear to impede the retroactive application of reasonable administrative sanctions or civil penalties, such as fines. Next, Article 12(2) leaves open the possibility of retroactive criminal law application where an act was criminal according to the general principles of law recognized by the community of nations.
The Occupy Central Movement was unable to achieve its expressed aim of securing true democracy in HKSAR. One significant side effect has been intensified calls for Hong Kong independence.
One jurisdiction, India, has long criminalized insulting, inter alia, the National Anthem in the Prevention of Insults to National Honour Act (1971) (see Section 3). A number of jurisdictions set out rules on how the playing of a National Anthem should be observed and some of these, for example, Mexico and Japan, prescribe administrative penalties for a failure to comply. I am not aware of anyone arguing that India is not entitled, according to general, internationally-recognized principles of law, to enact a law imposing criminal penalties on those found to have insulted the playing of a National Anthem. This argument in favor of the Article 12(2) exception applying is not without foundation but it is not strong.
Thirdly, and more importantly, there are the questions related to how Article 39 interacts, in general, with the Basic Law and, in particular, how Article 12 of the BORO (relying on Article 39 of the Basic Law) may interact with Annex III laws. The wording of Article 12, as noted above, is strong and clear. What raises questions about its ultimate constitutional impact, though, is the fact that it relies on an indirect incorporation into the Basic Law through Article 39 to establish its constitutional status. The ICCPR through the BORO is plainly part of the overall, constitutional rights protection template in the HKSAR. That constitutional status enjoyed by the BORO and the ICCPR is, however, derivative (via Article 39) rather than direct. It is an unusual arrangement, and in its specific form, is unique across the Common Law world as far as I know.
Annex III Laws
In order to explore the relationship between Annex III laws and the bar to retroactive criminal laws set out in Article 12 of the BORO, it is useful to consider several possibilities. Let us assume that:
(1) The new NAL as listed in Annex III is silent on the date for it to be applied in the HKSAR; or
(2) The new NAL as listed in Annex III stipulates that it is to take effect in the HKSAR from the date of its formal inclusion in Annex III; or
(3) The new NAL as listed in Annex III stipulates that it is to take effect in the HKSAR from the date it took effect in the Mainland — that is, October 2017.
In Case A, Article 12 of the BORO would create a prima facie bar to any retroactive application of the new NAL (assuming that Beijing and the HKSAR Government sought retroactive application) unless an exception could be argued under Article 12(2) as noted above.
One might also, however, reason from first principles, that, like the BORO under Article 39, a new NAL law added to Annex III enjoys a derivative constitutional status. Annex III itself is silent on the issue of the precise constitutional status (within the Basic Law) of Annex III laws. It is clear, however, that these Annex III laws are legal provisions which at least have a quasi-constitutional status under the Basic Law — that is, they are NPCSC laws which are quite distinctly embedded (pursuant to Basic Law authority conferred by Article 18) within the Basic Law prior to their local HKSAR application.
The position with respect to Article 12 of the BORO is intriguing. New (i.e. after July 1, 1997) Annex III laws have gained whatever constitutional status they have later than Article 12 of the BORO achieved its derivative constitutional status via Article 39 of the Basic Law.
Although Article 12 of the BORO clearly applies to regular HKSAR criminal law provisions passed before and at any time after July 1, 1997, this position may be different where a new HKSAR criminal law provision is directly sourced from an appropriately added, new Annex III NPCSC law. In such a case, the possibility arises of arguing that the later quasi-constitutional measure is not restricted from being applied retroactively by Article 12 in the same way that regular HKSAR ordinances are. The foundations on which this argument is built can be debated. But, as a matter of constitutional interpretation, the argument is grounded within a framework of recognized reasoning.
Let us now, though, consider Case B which is more interesting in that it presents a clear potential “stand off” between an Annex III law and Article 12 of the BORO. In my view, there is, here, a stronger case to argue that Article 12 of the BORO may be overridden because of the derivative constitutional status of Annex III laws. That is, the new NAL example given in Case B explicitly sets down a commencement date which predates the actual HKSAR enactment (or promulgation) of the new NAL in accordance with Article 18 of the Basic Law.
In Case B, all HKSAR residents would be on notice, with knowledge of the draft law, that the new NAL would be applied back to the specified date. This resonates with the “government by press release” approach used in the HKSAR over the past several years for amendments to the Stamp Duty Ordinance affecting real property transactions. This approach has long been widely used in Australia by revenue authorities, also — including to apply criminal penalties related to taxation enforcement.
Case C is plainly more controversial. Here there is an explicit retroactive application to a date before the new NAL was added to Annex III. If the Basic Law (later) derivative constitutional status of Annex III laws is established, however, this may be sufficient basis for Case C also to allow an override of Article 12 of the BORO.
Article 158 of the Basic Law
Article 158 of the Basic Law allows the NPCSC to interpret provisions of the Basic Law. The Court of Final Appeal (CFA) in Lau Kong Yung & Others v Director of Immigration in 1999 (Lau’s case), found that the NPCSC enjoyed a plenary power under Article 158 to interpret all provisions in the Basic Law on its own initiative, if it chooses. Article 18 and Annex III “concern affairs … concerning the relationship between the Central Authorities and the Region.” This places an interpretation of the status of Annex III laws and the relationship between any particular Annex III law and Article 12 of the BORO squarely within the scope of Article 158.
That is, in all the cases, and especially with Case B and Case C, given the assumed facts and constitutional arguments, it is more likely than not that, if Case A, B, or C came before the CFA, the CFA would feel that, under Article 158, it would need to refer any such case to the NPCSC in accordance with paragraph 3 of Article 158 which states, inter alia, that in particular circumstances, where the CFA need to interpret Basic Law provisions concerning the relationship between the Central Authorities and the Region, the CFA shall seek an interpretation by the NPCSC of the relevant provisions in the Basic Law.
In the case Democratic Republic of Congo & Others v F. G. Hemispheres LLC (Congo Case), the CFA referred a matter itself, for the first time, under the above provisions of Article 158 to the NPCSC for Interpretation. The stipulations set out by the CFA in the Congo Case as to when the CFA would refer matters to the NPCSC for an Article 158 interpretation would apply, in my view, in the circumstances of Cases B and C set out above, were either of these to be referred to the CFA, and conceivably also in the circumstances in Case A.
The history of the creation of the PRC National Anthem is remarkable. Those who choose to direct scorn at the National Anthem likely have scant understanding of this intriguing history, including the singing of the National Anthem during the Anti-Japanese War by Paul Robeson in New York and the singing of the anthem by protesters in Tiananmen Square in Beijing in mid-1989.
The Occupy Central Movement (OCM) was unable to achieve its expressed aim of securing true democracy (as stipulated by the OCM) in HKSAR in 2014-15. The OCM also failed in its other aim of forcing the then-Chief Executive of the HKSAR to step down. One significant side effect of this let-down for OCM supporters has been intensified calls, within certain minority groups, for Hong Kong independence or some form of future, political self-determination for Hong Kong. The National Anthem protests outlined above largely manifest themselves within the context of this relatively new Hong Kong independence movement.
The new NAL will be applied in Hong Kong: (a) through reliance on Article 18 and Annex III of the Basic Law; and (b) by local legislative (or promulgation) application. Although it is unlikely in this instance that the criminalizing provisions of new NAL will be applied retroactively in the HKSAR, the exploration of that possibility above shows that it can be argued that NPCSC laws properly added to Annex III for application in the HKSAR enjoy a quasi-constitutional status. This, in turn, given the derivative constitutional status of the BORO (and the ICCPR) in Hong Kong, raises a question as to whether, in certain circumstances, a Hong Kong law sourced from an Annex III NPCSC law might override the bar on retrospective criminal law established by Article 12 of the BORO.
One consequence of the increased calls for independence (or self-determination) for Hong Kong has been renewed calls, from Beijing, for the HKSAR to enact its own new National Security Laws in accordance with the stipulation that Hong Kong should do so under Article 23 of the Basic Law. In November 2017, Li Fei, the Beijing based Chairman of the Basic Law Committee, made this point during an official visit to Hong Kong.
Hong Kong made a failed and controversial attempt in 2003 to pass new Article 23 laws to replace the British-era National Security Laws which then applied (and continue to apply) in the HKSAR. No further attempt has been made. In the event that LegCo were, for whatever set of reasons, to reject a renewed attempt to pass a fresh set of Article 23 laws, this may give rise to a decision by Beijing to circumvent Article 23 and take more direct action to ensure the application of a new set of National Security Laws within the HKSAR. This could mean resort to Annex III.
Bandurski, David. (July 1, 2017). “There’s an American Story at the Heart of China’s National Anthem.” Quartz. Retrieved from https://qz.com/1017782/the-chinese-national-anthems-long-relationship-with-america/
Chou, Oliver. (July 11, 2017). “Why Controversy Marches to the Tune of China’s National Anthem”, South China Morning Post. Retrieved from http://www.scmp.com/news/hong-kong/politics/article/2102116/why-controversy-marches-tune-chinas-national-anthem