The HK Government is preparing to ignite fresh protests by resuming the Second Reading of the Bill, which must occur by July, or the bill lapses. Last night, it ridiculously claimed that the Bill is not a restriction of free speech. Of course it is. The only question is whether that is constitutional.

Your right to insult the national anthem
11 January 2020

The echoes of the Extradition Bill fiasco might conceivably be starting to fade, but the pro-democracy and freedom movement is alive and kicking. So to prevent any semblance of calm returning, the HK Government is igniting a new controversy by preparing to resume the Second Reading debate on the National Anthem Bill "at an appropriate time". The current 4-year legislative session ends in July, so the Second Reading would have to occur before that, otherwise the bill will lapse. The Bill has already passed through a Bills Committee. In a statement last night, the Government said:

"The main spirit of the National Anthem Bill (the Bill) is "respect", which bears absolutely no relations to "restricting freedom of speech" as claimed by certain members of the community and definitely not a so-called "evil law"."

Like it or not, the claim that the Bill would not restrict freedom of speech is false and nonsensical. Any restriction on what one can say or express is, by definition, a restriction on freedom of speech. The only question is whether the restriction is constitutional.

Section 7 of the Bill is titled "Offence of insulting behaviour" and provides that a person commits an offence, punishable by up to 3 years in jail, if he publicly and intentionally insults the national anthem in any way. That includes publishing altered lyrics or score, or playing or singing in a distorted or disrespectful way "with intent to insult".

Article 27 of the Basic Law states in full:

"Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike."

Those freedoms are not absolute. For example, incitement of violence by standing up at a rally and urging people to beat up pro-democracy protesters, is an offence under Section 26 of the Public Order Ordinance. However, any such restriction on a Basic Law right must satisfy a 4-step "proportionality" test of constitutional necessity. As laid down by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (FACV 21/2015), the restriction of a constitutional right must:

  1. have a legitimate aim;
  2. be rationally connected to that aim;
  3. be no more than is necessary to accomplish that aim; and
  4. strike a reasonable balance between the societal benefits of the restriction and the constitutional rights of the individual.

If the Government succeeds in passing the Bill through LegCo (or even, by the Chief Executive making it law under the Emergency Regulations Ordinance, if indeed the ERO is constitutional) then we can expect a constitutionality challenge by someone who has published or performed a parody or satire or otherwise insulted the anthem. We could see hundreds of soccer fans charged for booing the anthem (only at a home game, of course), and surely one of them would challenge the law in court. Free speech has to include the right to mock, shock, offend or insult, particularly when the object is a symbol of government. Speech is not "free" if it has to pass a popularity test. And if none of us are allowed to insult the anthem, then how do we know that any of us really respect it? A government cannot legislate respect, it can only earn it - and right now our government appears utterly clueless on how to do that.

© vnintl.com, 2020


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