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China/Hong Kong/Macau: Penalization of Disrespect for National Anthem Under Tenth Criminal Code Amendment

(Nov. 8, 2017) On November 4, 2017, that the Standing Committee of the National People’s Congress (NPCSC) of the People’s Republic of China (PRC) adopted an amendment to the country’s Criminal Code to include criminal sanctions, including up to three years of imprisonment, for disrespecting the national anthem. (Amendment (10) to the Criminal Code of the PRC (Amendment 10) (Nov. 4, 2017), NPC website (in Chinese); Ben Blanchard, China Considers Three-Year Jail Terms for Disrespecting National Anthem, Flag, REUTERS (Oct. 30, 2017).) The President of the PRC promulgated the amendment on the same day, with immediate effect. (Decree of the President of the PRC, No. 80 (Nov. 4, 2017), XINHUA (Nov. 4, 2017) (in Chinese).)

Under the Tenth Amendment of the Criminal Code, an additional paragraph is added to article 299, on desecration of the national flag, to provide that anyone who in a public venue maliciously alters the lyrics or music of the national anthem of the PRC (the “March of the Volunteers,” Yiyongjun jinxingqu), performs it in a distorted or derogatory manner, or otherwise desecrates its solemnity will be subject, “when the circumstances are serious,” to the punishments prescribed under the provision on desecration of the national flag. (Amendment 10, supra; Wei Zhezhe, If Circumstances of Desecration of the National Anthem Are Serious, the Highest Penalty May Be Three Years, PEOPLE’S DAILY (Nov. 1, 2017) (in Chinese).) The amendment does not indicate what constitutes serious circumstances.

At present, under the National Anthem Law, which entered into effect on October 1, 2017, anyone who carries out any of the abovementioned activities will be subject to a warning or to a period of 15 days of detention by the public security organs (police); if the acts constitute a crime, criminal punishment is to be pursued. (National Anthem Law of the PRC (adopted by the NPCSC on Sept. 1, 2017), art. 14 (in Chinese); see also Laney Zhang, China/Hong Kong: National Anthem Law Under Consideration, GLOBAL LEGAL MONITOR (July 18, 2017).) Heretofore, however, a criminal punishment had not been specified in the Criminal Code.

Flag Desecration Provisions

Like the National Anthem Law, the National Flag Law of the PRC provides for 15 days of administrative detention for anyone who desecrates the flag “by publicly and wilfully [sic] burning, mutilating, scrawling on, defiling or trampling upon it,” in accordance with the penalty provisions of the Regulations on Administrative Penalties for Public Security, when the offense is “relatively minor,” and for investigation of criminal responsibility otherwise. (Law of the People’s Republic of China on the National Flag (issued June 28, 1990, effective Oct. 1, 1990), art. 19, National People’s Congress website (in Chinese).)

The penalty provision in article 299 of the Criminal Code states:

Whoever desecrates the National Flag or the National Emblem of the People’s Republic of China by intentionally burning, mutilating, scrawling on, defiling or trampling upon it in a public place shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. (Criminal Law of the People’s Republic of China (adopted on July 1, 1979, and extensively revised as of Mar. 14, 1997, as amended, with links to eight of the nine amendments), art. 299, Congressional-Executive Commission on China website; Zhang, supra;  People’s Republic of China Criminal Law Amendment (9) (Sept. 1, 2015), CHINA LAW TRANSLATE; Criminal Code of the People’s Republic of China (as of Feb. 5, 2017, with links to nine of the amendments) (in Chinese).)

Extension of National Anthem Law to Hong Kong and Macau

On November 4, 2017, the NPCSC formally extended the original National Anthem Law to the Hong Kong Special Administrative Region (HKSAR) of the PRC by including the Law in the Annex III of the HKSAR Basic Law, which is sometimes referred to as Hong Kong’s “mini-constitution.” Annex III is on national laws to be applied in the HKSAR. (Ben Blanchard & Alexandra Harney, China Extends National Anthem ‘Disrespect’ Law to Hong Kong, REUTERS (Nov. 4, 2017); NPCSC Decision on an Addition to the National Laws Listed in Annex 3 of the “PRC HKSAR Basic Law” (Nov. 4, 2017), NPC.PEOPLE.COM (Nov. 5, 2017) (in Chinese).) Hong Kong, formerly ruled by the British, reverted to Chinese control in 1997 under the “one country, two systems” formula, whereby “[t]he National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this [Basic] Law.” (Basic Law Full Text (Apr. 4, 1990, in force on July 1, 1997), art. 2, Basic Law website.)

A spokesman for the NPCSC was quoted as saying at a news conference “that it was up to the Hong Kong government to enact a local law to abide by the amendment in a timely manner.” (Blanchard & Harney, supra.) According to news reports, during World Cup qualifiers and other matches held over the last few years, some Hong Kong football fans have booed the national anthem. (Id.) Zhang Rongshun, deputy director for the NPCSC’s Legislative Affairs Commission, stated that such “incidents of disrespect against the national anthem [challenge] the bottom line of the principle of one country, two systems and social morality, and [trigger] rage among Chinese including most Hong Kong residents.” (Stuart Lau, Kimmy Chung, & Catherine Wong, Country’s Top Legislative Body Formally Inserts Law into City’s Mini-Constitution, But Details of How It Will Be Applied in Hong Kong Yet to Be Thrashed Out, SOUTH CHINA MORNING POST (updated Nov. 5, 2017).) Soon after the issuance of NPCSC decree extending the National Anthem Law to the HKSAR, the Hong Kong government issued a statement indicating it would adopt the national law “‘by way of appropriate local legislation’ consistent with the city’s constitutional and legal regime.” (Id.)

The original Law has also been extended to Macau, which, like Hong Kong, is governed under the “one country, two systems” formula. (Id.; NPCSC Decision on an Addition to the National Laws Listed in Annex 3 of the “PRC Macau Special Administrative Region Basic Law” (Nov. 4, 2017), NPC.PEOPLE.COM (Nov. 5, 2017) (in Chinese).)

The amendment to the criminal law, however, “does not appear to apply to Hong Kong or Macau.” (Blanchard & Harney, supra.)