New report says Hong Kong National Anthem Law is ‘legal malware’ which threatens rule of law and freedoms
On Thursday, Hong Kong Watch releases an in-depth report into Hong Kong’s National Anthem Law. It concludes that the legislation is “legal malware” which undermines basic rights, the rule of law and the city’s high degree of autonomy, and subsequently calls on the Hong Kong government to drop the legislation.
The 24-page report, commissioned by Hong Kong Watch and written by Dr Kevin Carrico, a senior lecturer in Chinese Studies at Monash University, is entitled Legal Malware: Hong Kong’s National Anthem Ordinance. Dr Carrico is the academic who made headlines when, on a recent fieldwork trip to Hong Kong, he was stalked by a pro-CCP Wen Wei Po journalist.
Following the publication of the report, the Canadian Deputy Shadow Foreign Minister, Garnett Genuis MP said: “The introduction of Hong Kong’s National Anthem Ordinance is a clear threat to Hong Kong's basic freedoms. To impose a three-year prison sentence for ‘insulting’ the national anthem is an appalling violation of freedom of expression, and the vague definition of ‘insult’, which even the Hong Kong Chief Executive has said she struggles to define, is not in line with the basic principles of the rule of law.”
“In addition, the passage of the law via amendment of Annex III of the Basic Law sets a dangerous precedent. This is the first time that Annex III has been used by Beijing to legislate in Hong Kong on matters outside of defence and diplomacy, the areas which the Sino-British Joint Declaration agrees is within Beijing’s remit. If this becomes a precedent, a new constitutional backdoor by which Beijing can impose repressive legislation, it could fatally undermine Hong Kong’s autonomy and pave the way for further draconian and repressive legislation.”
Content of the Report
1. Erosion of autonomy: “A legislative back-door”
The report begins by highlighting problems with the way that the legislation has been introduced by using Annex III of Hong Kong’s Basic Law as a “legislative back door” which “undermines the city’s promised ‘high degree of autonomy’” (Exec Summary).
Article 18 of the Hong Kong Basic Law states that mainland Chinese laws “shall not be applied” in Hong Kong except for those listed in Annex III. Most of the preceding applications of Annex III of the Basic Law were made in the 1990s and related to clearly diplomatic or military matters, where Beijing has jurisdiction, such as consular privileges and immunities, or the garrisoning of People’s Liberation Army forces in the Special Administrative Region.
Dr Carrico comments that the use of Annex III to pass restrictive domestic legislation is unprecedented and concerning:
“By employing Annex III to legislate away rights guaranteed in the Basic Law that are unrelated to the central government’s purview of defence and foreign affairs, Beijing is essentially creating a new precedent to force whatever legislation it pleases on Hong Kong: a particularly dangerous situation as Beijing seeks ever greater control over the city…”
“The recent acceleration of increasingly far-fetched interpretations of the Basic Law by this [National People’s] congress, combined with its misuse of Annex III to force national anthem legislation on Hong Kong, indicates that there are no effective checks on Beijing’s aspirations to tighten its control over Hong Kong. If the National Anthem Ordinance becomes law, this legislation will threaten the very foundations of the idea of “one country, two systems,” as well as setting a dangerous precedent for potential future “national security” legislation under Article 23.” (pp.9-10)
2. A violation of rights
Dr Carrico also argues that the bill fails to adequately protect basic rights and freedoms:
“the proposed bill will curtail basic rights of free speech, expression, and demonstration guaranteed in the Basic Law and the International Covenant on Civil and Political Rights (ICCPR).”
He says that the law is in violation of Article 27 of the Basic Law, which guarantees freedom of expression, as well as Article 19 of the ICCPR. He also cites the previous United Nations Special Rapporteur on Freedom of Expression who said that “criminal defamation laws may not be used to protect abstract or subjective notions or concepts, such as … national symbols…””
3. Compromised rule of law: “Legal Malware”
Dr Carrico’s third critique is that:
“…the proposed bill incorporates untenably vague definitions of insult, while at the same time giving the authorities unreasonably extended time periods in which to pursue prosecution, along with excessive prison terms of up to three years for thought and speech crimes: this undermines the rule of law”
Citing a number of contemporary case studies, he argues that this leaves the law open to “politicised abuse” which “indeed seems almost designed for politicized prosecution, constituting a type of legal malware that will weaken Hong Kong’s respected rule of law system.”
4. A “vicious cycle”: an ineffective means of stopping protest
Finally, Dr Carrico argues that the National Anthem Bill is likely to foster further protest:
“At a deeper level, the bill is symptomatic of Beijing’s desire for ever greater control over the city of Hong Kong, producing a vicious cycle in which increasingly heavy-handed rule is rationalized in response to protests over Beijing’s already quite heavy-handed rule: this response not only violates the high degree of autonomy promised in the “one country, two systems” model, but is also likely to only provoke ever further protests and tensions.”
In view of this, the report calls on the government of Hong Kong to drop the legislation, and for international governments to raise concerns. It also calls for further guidance from United Nations experts as to whether the National Anthem Bill is in line with international human rights standards.