Respect, the national anthem and the Basic Law
25 March 2018
Respect: a feeling of deep admiration for someone or something elicited by their abilities, qualities or achievements. Something to be earned, not demanded. The insecure leadership of China, however, has passed the National Anthem Law (NAL) demanding respect for the national anthem on pain of jail and, by decision of the National People's Congress Standing Committee on 7-Nov-2017, it has "applied" the law to Hong Kong via an amendment to Annex III of the Basic Law, Hong Kong's mini-constitution.
Under Article 18(2) of the Basic Law, the NAL "shall be applied locally by way of promulgation or legislation". Promulgation or legislation, those are the only choices, but the NAL as written would not directly work in HK, so it must now be adapted and legislated rather than promulgated.
The PRC national anthem, adopted in 1949, is March of the Volunteers, the lyrics of which were written by a poet and playwright, Tian Han, in 1934. During the Cultural Revolution, Mr Tian was jailed without trial as a "counterrevolutionary" for a play criticising Chairman Mao's policies, and died in jail on 10-Dec-1968. The anthem's repetitive and pithy lyrics relate to the Chinese battle against the Japanese invasion. Translated, they are as follows:
Arise, ye who refuse to be slaves!
With our flesh and blood,
let us build a new Great Wall!
As China faces its greatest peril
From each one the urgent call to action comes forth.
Arise! Arise! Arise!
Millions of but one heart
Braving the enemies' fire! March on!
Braving the enemies' fire! March on!
March on! March, march on!
Paul Robeson, an American singer and civil rights activist, recorded in 1941 a variant translated with the help of Liu Liangmo and more in keeping with his times in the USA. This version, produced during the Sino-Japanese war and 8 years before the Communist Party adopted the anthem, is a version that the people of Hong Kong today might well prefer, but perhaps not one which today's PRC leadership would find politically correct:
Arise, you who refuse to be bond slaves,
Let's stand up and fight for liberty and true democracy,
All our world is facing the change of the tyrant!
Everyone who works for freedom is now crying:
Arise, Arise, Arise!
All of us with one heart,
With the torch of freedom, march on,
With the torch of freedom,
March on, March on! March on and on!
The HK Government has now sent an outline (see annex 2) of the forthcoming National Anthem Bill to the Legislative Council. Article 7 proposes that every person who is present when the national anthem is performed or sung "must stand and deport themselves respectfully, and must not display any behaviour that is disrespectful to the national anthem". As proposed, any person who "insults the national anthem" will be liable to 3 years in jail and a HK$50,000 fine. Of course, the anthem is not a person. It doesn't have feelings, and is not capable of being insulted. What the Governments must mean by "insulting" is insulting the Government or the people it purportedly represents (albeit without democratic elections).
Leaving aside the fact that some attendees at official events may have fallen asleep during boring speeches preceding the anthem, or may be unable to stand due to disability, the obvious problem with the proposed requirement is that respect is a feeling. You either have it (to a greater or lesser extent) or you don't. It is earned, not taken. One can no more command respect than one can command a thought or a belief. Under the new law, those who don't have respect will be obligated to fake it - to show a respect that they don't actually have. Instead of rolling their eyes, crossing their fingers, turning their backs, looking at their shoes or booing, they must fake respect. So how will the authorities know who really respects the anthem, and who is faking it?
The NAL and its HK implementation are a sad indictment of the Government of 1.4 billion people, some 19% of the global population. After so much economic progress since 1979, the Central People's Government should have the confidence to allow its people the freedom of thought, speech and expression to respect or not respect anything they want, whether or not it is a nationally-endorsed song or a piece of cloth on a pole. The NAL is a great leap backwards towards authoritarianism rather than a step towards open society.
When some football stars in the USA recently decided to kneel during the national anthem as a form of protest, they were not hauled away and jailed. They were exercising their constitutional freedom of expression, and so were the people who criticised them. The US did not even see the need for a national anthem until The Star-Spangled Banner was signed into law by President Herbert Hoover in 1931, just 3 years before Mr Tian wrote his poem. Just like the Chinese anthem, the US anthem originates from a poem about a battle against invasion, the "Defence of Fort M'Henry" in Baltimore against the British in 1814. This adopts a common theme to the French national anthem La Marseillaise, written in 1792 to mobilise citizens against invasion by Austria and Prussia.
The great irony is that applying the NAL to HK will make the freedom-loving citizens less respectful, not more, of the Central People's Government. It is like, well, raising a red flag. It also conflicts with the freedom of expression promised in HK by the Basic Law. Any restriction on such freedoms must satisfy judicial tests of constitutional necessity. So the National Anthem Ordinance, if passed by the Government-majority legislature, will face the real prospect of judicial review as soon as the first crowd of booing soccer fans is arrested and charged after an "international" soccer match in HK for insulting the anthem.
During a street protest on 1-Jan-1998, six months after the handover, the new law against flag desecration was tested by Ng Kung Siu and Lee Kin Yun. Mr Ng was convicted by a magistrate, but successfully appealed to the Court of Appeal, which unanimously held that it was "unable to accede to the [HKSAR]'s submission that the enactment of the Flag Ordinances was necessary for the normal operation of the [HKSAR]". However, that was overturned by the Court of Final Appeal which unanimously held that the flag laws were necessary "for the protection of public order (ordre public)". The essence of the CFA judgment appears to be that the restriction against desecration of flags only limited the means of expression but did not prevent a person expressing the same views in other ways. That judgment, which relates to an expression by means of a physical action involving an object (a flag), may not be sufficient to support a restriction on freedom of speech and expression and indeed, a compulsion to show respect, when it comes to performances of the anthem. Justice Kemal Bokhary, in the CFA ruling said:
"If these restrictions are permissible, where does it stop? It is a perfectly legitimate question. And the answer, as I see it, is that it stops where these restrictions are located. For they lie just within the outer limits of constitutionality. Beneath the national and regional flags and emblems, all persons in Hong Kong are - and can be confident that they will remain - equally free under our law to express their views on all matters whether political or non-political: saying what they like, how they like."
Those who respect the Basic Law will find it very hard to respect a law which disrespects it.
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