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Written by: Huang Yunna
2020-05-28 19:52
Last update date: 2020-05-28 19:52It has always been difficult for Hong Kong to discuss political issues involving "one country, two systems" in a practical and realistic manner, because politicians say one set, but actually do another set, which has caused many issues to remain contentious and stagnant. If the National Security Law is the same, the National Anthem Law is the same. Everyone kept saying that "in principle, they do not oppose legislation." However, when the SAR government promoted the legislative process, it used the same reason to stand against the moral high grounds to "oppose legislation." Actively put forward "how to legislate". The question is, can all the grounds of opposition that succeeded in seizing the public's attention in the name of "freedom" all hold up? Actually not.
Since the SAR Government announced the National Anthem Bill in March 2018, the legislative controversy led by the pan-democrats has mainly focused on two aspects-first, criticizing the legislation "damaging freedom of expression and violating the Bill of Rights"; second, worrying about the "Draft" Change the nature, principles and spirit of the common law. However, in the slogan and passionate controversy, in fact, people may not be able to distinguish what they are opposed to-which is based on the common law system customs in Hong Kong and the socialist legal system with mainland characteristics The inevitable contradictions, and which are opposed due to ideological prejudices.
The second reading of the national anthem law, all members of the pan-ministries left. (Profile picture / photo by Yu Junliang)
The local legislation of the National Anthem Act "impairs freedom of expression and violates the Bill of Rights"?
Let's talk about the most controversial "damaging freedom of expression and violating the Bill of Rights". As early as 2017, the Standing Committee of the National People's Congress passed the "National Anthem Law" in Annex III of the Basic Law and requested the SAR government to implement its own legislation shortly afterwards. "Amnesty International Hong Kong Branch" took the lead in opposing the "National Anthem Law" on the grounds of "freedom". Legislation, claiming that the international community tends to protect "freedom of expression" rather than "national reputation"; until May 2018, after the SAR government officially announced the "National Anthem Bill", pan-democracy-led concern organizations criticized it more for "violating ideas" "Freedom", "Suppression of Creative Freedom", "Deprivation of Teaching Freedom".
However, even if "liberalism" prevails in Hong Kong, is "freedom" necessarily supreme and unrestricted? of course not! The community generally likes to quote Article 27 of the Basic Law, Article 16 of the Hong Kong Bill of Rights Ordinance and Article 16 of the Hong Kong Bill of Rights Ordinance and Article 19 of the International Covenant on Civil and Political Rights to summarize the "freedom" enjoyed by Hong Kong people; however, Relevant rights are not paramount-according to the latter two of the same provisions, the right to "freedom" has special responsibilities and obligations, so some legal restrictions are imposed, including respect for the rights or reputation of others, and protection of national security or public order, or Public health or weathering.
So, in practice, how many "limits of freedom" are there? How to balance with related responsibilities and obligations? We may refer to the authoritative judgment of the Court of Final Appeal in 1999 on the "Wu Gongshao National Flag Case" to understand how the "National Flag and National Emblem Ordinance", which is similar in nature to the "National Anthem Bill", has restrictions on how "freedom of expression" is allowed by law .
(Profile picture / Reuters)
After the NPC Standing Committee passed the National Flag Law and National Emblem Law in 1990 and 1991, and half a month before the return of Hong Kong, the Provisional Legislative Council passed the Third Reading of the National Flag and National Emblem Bill and the District Flag and Regional Emblem Bill, which will be officially implemented from July 1. On January 1, the following year, Wu Gongshao and Li Jianrun participated in the New Year ’s Day Parade of the Stakeholders ’Association. , Smearing, tarnishing, trampling, and other ways to insult the national flag (and regional flag) ", the two argued that the charges were limited to their right to express free speech, and they even questioned the above two" The Regulations violate the Basic Law. The magistrate originally convicted the two of them on the grounds that the freedom of expression mentioned in Article 19 of the Convention should be limited. After the two dissatisfied with the appeal, the Court of Appeal considered that the common-law countries did not criminalize the defacement of the national flag. They believed that the Covenant could not rationalize the two Regulations, and thus the two convictions were revoked. The prosecution appealed to the Court of Final Appeal, and it was unanimously ruled that the prosecution appealed.
Li Guoneng, then the judge of the final adjudication, explained in three aspects. First of all, the two Regulations do restrict "freedom of expression"-because "insult flag" is a non-verbal form of speech or expression, the publisher usually expresses "protest" or "dissatisfaction", and the court expresses "freedom of expression" The guarantees of "usually adopt loose interpretations, which include" the possibility of expressing offensive or annoying thoughts, and criticism of the actions of government agencies and officials. " Secondly, the "Regulations" are limited and justified for the "limit of freedom"-because no matter what information the publisher wants to express, the two "Regulations" only prohibit the form of "insulting the national flag or the regional flag", and There is no restriction on people ’s freedom to express the same information in other forms; the necessary rationale for the “limit of freedom” stems from the “public order” mentioned in Article 19 of the Convention, when Li Guoneng emphasized at the time, “just where we are now In terms of time, place and environment, Hong Kong is already in a new constitutional order. Therefore, the protection of the national flag and the regional flag is the "legal interest" of society, that is, "public order". Finally, the two "Regulations" are necessary for the "limit of freedom" because the national flag and the regional flag have the "one country, two systems" principle and the symbolic meaning of "maintaining national unity".
Li Guoneng's judgment was unanimously approved by the then permanent judges of the Court of Final Appeal, such as Li Xianlun, Shen Cheng, Bao Zhijin and non-permanent judge Mei Shixian. It is worth mentioning that for the question of whether the "Regulations" are necessary for the "Limit of Freedom", Bao Zhijin mentioned that there are always two completely opposite attitudes in society-one is that no matter how many Insulting national flags and regional flags and other more effective ways of expressing dissatisfaction, no matter how rude or objectionable such insults, should be tolerated, and should not be prohibited by legislation; Secondly, given that the national flags and regional flags are symbolic, they should be Legislation protects them from insults, and does not prevent anyone from expressing their ideas in other forms-Bao Zhijin emphasized that the key to the court ’s handling of such cases is the attitude of the legislature, not the individual judge, and the attitude of the legislature It is to enact laws to protect national flags from insults, thereby fulfilling the relevant constitutional responsibilities.
As for whether Hong Kong needs to legislate to prohibit "insulting the national anthem", we may refer to the judgment of legal authority such as Li Guoneng and Bao Zhijin. First, the National Anthem Bill prohibits expressors from expressing their thoughts in the form of "insulting the national anthem". Indeed, "freedom of expression" is restricted; however, the "Draft" only prohibits expressors from using the form of "insulting the national anthem", but does not prohibit the relevant persons from expressing information originally intended to be published by "insulting the national anthem" in other forms. Therefore, It is a kind of limited restriction; in addition, the national anthem is the symbol and symbol of the People ’s Republic of China, protecting the national anthem from insulting the "legal interests" of Hong Kong society, that is, "public order", so it is necessary to prohibit it by legislation. Limit the relevant "freedom of expression".
The first chief judge of the Court of Final Appeal after the return of Hong Kong, Li Guoneng. (Profile picture / GettyImages)
The National Anthem Bill has changed the nature, principles and spirit of common law?
Whenever there are legal disputes in Lukang, the "legal conflict" will always touch the nerves of the legal profession. In the local legislation of the National Anthem Law, they raised three major concerns about the National Anthem Bill: (1) Contains ideological language , Or change the nature of the common law; (2) the provisions are ambiguous, or violate the common law principles; (3) the proposed penalty is too strict, or contrary to the spirit of the common law.
Before discussing the above points further, we must first understand what are the basic differences between the “common law system” pursued by Hong Kong and the “socialist law system” adopted in the Mainland? And when there is a conflict of laws, how should it be resolved?
Ordinary people traditionally refer to the mainland legal system as the "continental law system" (that is, the European law, not the continental law), but the mainland authorities claim to be the "socialist law system" because it is neither exercised by the judiciary like the common law area. The constitutional supervision power is not exercised by a special constitutional supervision agency like the civil law system, but is directly exercised by the National People's Congress and its standing committee, that is, it absorbs both the civil law and common law experience. As for the specific differences between the two, taking "what is the rule of law" as an example, the common law emphasizes "limiting power with law", that is, restricting the power of the government and protecting the rights of citizens with legal norms, while the mainland law system emphasizes "relying on the law" The law is regarded as the main governance tool. As for the legal interpretation of the two, the common law system tends to interpret it in the current context, while the mainland law system will go back to the original legislative intent. It must be pointed out that there are no advantages or disadvantages between the two legal systems.
The Hong Kong University legal scholar Chen Wenmin once criticized that the "Draft" is full of ideological provisions commonly used in the legal system in the Mainland. These interpretations usually change with the regime's state of affairs. The disguise will change the nature of the common law in Hong Kong. (Profile picture)
(1) Does the "Draft" contain ideological language or change the nature of common law?
Returning to the first worry of the legal controversy of the National Anthem Bill. The Hong Kong University legal scholar Chen Wenmin once criticized that the "Draft" is full of ideological provisions commonly used in the legal system in the Mainland. These interpretations usually change with the regime's state of affairs. The disguise will change the nature of the common law in Hong Kong. As for the "ideological provisions"? The Citizen Party once pointed out that the "Ben Yan" mentioned in the "Draft" "All individuals and organizations should respect the national anthem and maintain the dignity of the national anthem", "Now it is necessary to formulate regulations to safeguard the dignity of the national anthem ... Statements such as the concept of the country and the promotion of patriotism are all "ideological expressions."
Admittedly, such concerns are not unreasonable. Refer to the “National Flag and National Emblem Articles” passed by the Provisional Legislative Council in 1997, although both the “National Flag Law” and the “National Emblem Law” refer to “in order to maintain the dignity of the national flag (national emblem) and strengthen Citizens ’national concepts, the development of patriotic spirit, and the enactment of this law in accordance with the Constitution” are all referred to as ideological statements. However, they are not incorporated into local laws. They only mean that the regulations are intended to provide for the use and protection of the national emblem and the national emblem of Hong Kong. However, in the "National Anthem Bill", the wording of the "National Anthem Law" is followed, and the SAR Government has not given a convincing explanation, only emphasizing that its legislative principles must maintain the purpose and reason of the "National Anthem Law." However, as "one country, two systems" has entered the new normal of "one country" before "two systems", is this "from scratch" change absolutely undesirable? And when the Hong Kong Government has repeatedly reiterated that "Bian Yan" has no legal effect, to what extent will those statements affect the legal nature?
Citizen Party leader Yang Yueqiao criticized that the definition of "insult" is ambiguous. It may violate the principle that common law legislation must establish a clear framework and allow citizens to anticipate the consequences of breaking the law. (Profile picture / photo by Li Zetong)
(2) The definition is ambiguous or violates the common law principles?
The second worry of legal disputes-"The provisions are ambiguous or violate common law principles"-More people questioned Article 7 of the National Anthem Bill "Anyone who publicly and intentionally insults the National Anthem in any way commits an offence "Insult the National Anthem" in the term, for example, Yang Yueqiao, the leader of the Citizen Party, criticized that the definition of "insult" is ambiguous, which may violate the principle of common law legislation that must establish a clear framework and let the public anticipate the consequences of breaking the law, which will make the public fall into the wrong net. However, the criminal lawyer Xiong Yunxin refuted when he was interviewed by "Hong Kong 01" last year. The "Draft" stated that "intentional insult" is "intentionally done", and in law, "if you do something and want to get it Some kind of result, and that result really happened, is "intention". "
Taking "intentional murder" as an example, when the prosecution has evidence to prove that the defendant bought poison and did a series of acts, and finally someone was poisoned, even if the defendant could argue that "did not think about doing those things will cause others to die" , But the judge will still guide the jury to check whether the defendant ’s behavior was “intent”. As for "insulting the national anthem", the court usually also understands the relevant behavior on two major conditions-first, the defendant knows whether his behavior is "insulting the national anthem"; second, objectively speaking, does the behavior have an "insult" component ——If the prosecution can prove the first item, there is no need to prove the second item again, but if the defendant denies the charge, the prosecution not only needs to present evidence, the judge will also make an objective judgment on behalf of the public, that is, using common sense To determine whether the behavior has "insulting" elements. Xiong Yunxin added that although judges have subjective factors in their judgments, they all use the "common sense" composed of their academic qualifications, cognition, experience, etc. as the standard for measuring "objectivity", and believe that the final judgment is not much different.
(Profile picture)
(3) The proposed penalty is too strict, or is it contrary to the spirit of common law?
As for the concern that the "recommended penalty is too strict or contrary to the spirit of the common law", it is still relevant to Article 7 of the National Anthem Bill, because it states that the prosecution period for the case should be found in "(a) the Commissioner of Police or Knowing the expiry of 1 year after the date of the crime; (b) expiring 2 years after the date of committing the crime ", and the proposed punishment is" punishable with a fine at level 5 and imprisonment for 3 years " The clauses are too heavy, even more stringent than the case of "warning by public security organs or detention under fifteen days" listed in the National Anthem Act, which may violate the spirit of common law with clear responsibilities and clear, reasonable responsibilities.
Regarding the prosecution period, the SAR Government ’s explanation is that the police anticipate that cases of “insulting the national anthem” may involve a large number of people or online behaviors, so it will take time to search for evidence and investigate; as for the excessive penalties, the authorities also explained that the National Anthem Bill The legislative intent of the National Flag and National Emblem Ordinance is the same, so the penalties are the same.
The key is, how should the legal conflicts in dry ports be resolved?
Whether the above-mentioned major controversy stems from the fundamental contradiction between the Hong Kong common law system and the mainland socialist law system, or whether the views derived from political ideology are opposed, and then opposed for opposition, I believe that readers have a lot in mind. The question we cannot evade is, why does the legal issue of dry ports always cause controversy? And when there is a legal conflict in the dry port, how should it be resolved?
Finally, back to the origin of all questions-why do we now have to make local legislation on the National Anthem Law? (Profile picture)
First of all, it must be acknowledged that Hong Kong, which pursues common law, is definitely not incompatible with the laws of the Mainland, because the existence of the Basic Law was originally intended to subtly resolve the legal and institutional differences between the two places; second, each When conflicts of laws arise, disputes are usually resolved by "legal interpretation". The Standing Committee of the National People's Congress has the final interpretation power of the Basic Law, that is, it is interpreted in the socialist legal system. Explain the Basic Law; Finally, even the common law system has never been set in stone, because the evolution of the legal system around the world would have been absorbed or imitated, excluded or recognized, borrowed or merged, and abandoned as the region or environment changed Or adapt, and after successfully transplanting and absorbing the British common law more than a hundred years ago, Hong Kong has experienced countless conflicts and collisions of legal cultures to achieve today's "integration between China and the West."
Finally, back to the origin of all questions-why do we now have to make local legislation on the National Anthem Law? In fact, the answer is really simple. The National People ’s Congress only confirmed the constitutional status of the March of the Volunteer Army as the national anthem of the People ’s Republic of China in 2004, and only formally adopted the National Anthem Act in 2017. At that time, given that Hong Kong had appeared at least 13 times in the three years before legislation, The National Anthem incident has long been advocated by the National People's Congress and the Chinese People's Political Consultative Conference to include the National Anthem Law in Annex III of the Basic Law. As of today, the National Anthem Law still fails to complete local legislation. While shouting "freedom", Hong Kong people have once reflected on why they seem to be more and more "not free".
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