1. Symbolic protest and the law in Hong Kong

In 2015, at a World Cup qualifier between Hong Kong and China,Footnote ¹ Hong Kong football fans collectively booed the pregame recital of the national anthem. Curiously, the anthem in question, “March of the Volunteers,” belonged not to one team, but to both—a consequence of the People’s Republic of China (PRC) assuming sovereignty over the former British colony of Hong Kong, now the Hong Kong Special Administrative Region (HKSAR), in 1997.

Over the next two years, large-scale booing of the same anthem recurred at all subsequent Hong Kong football matches, whoever the opposition. The Hong Kong Football Association, the Asian Football Confederation, and the Fédération Internationale de Football Association issued pleas, warnings, and fines in vain attempts to quell the behaviour. The Hong Kong fans, amid growing media interest and in the face of orchestrated patriotic opposition, devised new variations, turning their backs to the anthem, raising their middle fingers, and brandishing signs reading “boo.” They also displayed signs declaring “Hong Kong is not China” and calling for independence, confirming that these were acts not of sporting tribalism, but of political protest.

The national-anthem demonstrations came in the wake of the Umbrella Movement—a civil disobedience mass movement in which thousands of pro-democracy demonstrators occupied major Hong Kong thoroughfares for almost three months of 2014. The Umbrella Movement failed to achieve its political-reform goals—Hong Kong retains a powerful, Beijing-appointed executive and a weak, semi-democratic legislature—and it triggered a crackdown on dissent. Law has been at the forefront of the Hong Kong administration’s post-2014 moves to punish demonstrators, sideline political opposition, and suppress politically incorrect ideas, deepening Hongkongers’ scepticism as to the efficacy of their formerly cherished constitutional guarantees of autonomy, civil rights, and democratic development.

Law was also the chosen solution to the anthem problem. In 2017, China’s National People’s Congress passed a national-anthem law and its Standing Committee immediately annexed that law to Hong Kong’s Basic Law. This seldom-used constitutional mechanism compelled the nominally autonomous Hong Kong government to legislate the national-anthem law locally.Footnote ² Hong Kong’s ensuing National Anthem OrdinanceFootnote ³ seeks to criminalize acts of disrespect toward the anthem,Footnote ⁴ including the failure to “arise” while the anthem is played.Footnote ⁵ Convictions could result in fines of up to HK$50,000 (US$6,400) and imprisonment for up to three years.Footnote ⁶ In the effort to cultivate “millions with one heart,” the Ordinance would compel broadcasters and schools to promote the anthem.Footnote ⁷

Despite the Hong Kong government’s majority support in the local legislature, gained after the disqualification of opposition candidates and law-makers elect following the Umbrella Movement, the passage of the National Anthem Bill into law was not straightforward. It was shelved in 2019 when a parallel legislative initiative—the so-called extradition law that sought to amend the fugitive offenders regime to facilitate rendition to mainland China—sparked mass protests of unprecedented scale, duration, and disruptiveness. However, the Bill was soon back on the agenda and was eventually pushed through as part of a toughened security approach signalled by Chinese Communist Party leaders.

Questions have been raised over the constitutionality of the National Anthem Ordinance, but a legal challenge is unlikely to succeed, as laws conferring special legal protections on national symbols are already well established in Hong Kong. Flag desecration has carried criminal sanction since 1997 and the first prosecutions were pursued soon after.Footnote ⁸ Demonstrators advocating for democracy in China marched through Hong Kong bearing national and regional flags that were defaced, scrawled upon, torn, and punctured. Their claim to be exercising their constitutionally protected freedom of expression was rejected at trial but accepted on appeal. On final appeal, Hong Kong’s top court prioritized patriotic considerations and restored the convictions.Footnote ⁹

2. National symbols: role, meaning, and contestation

All modern states have symbols that they find useful for “patriotic socialization.”Footnote ¹⁰ Among the objects of national veneration, the flag is frequently “the chief symbol and object of worship,”Footnote ¹¹ supported by the anthem, a pantheon of heroes, and other shared historical and cultural experiences capable of engendering feelings of pride and community. All national symbols, whether originally folk symbols or conscious designs of the state, can contribute to an “authoritarian aesthetic”Footnote ¹² fostering a culture conducive to state power.Footnote ¹³ This is generally done via “a garrulous proliferation and dissemination of the image which is treated as a sign of presence and as a symbol of power.”Footnote ¹⁴

National symbols are often so effectively woven into the social fabric of a place that they become an ordinary part of daily existence. However, the identities they contain are constructions, not natural laws, and they may convey different meanings and messages to different people.Footnote ¹⁵ A symbol revered by one community may be offensive to an outsider, or repugnant to an insider who disapproves of the group’s leadership and its policies. Symbols are so loaded with variable meanings that even the act of flag-waving may arouse positive feelings in some and negative in others.Footnote ¹⁶ Ultimately, and inevitably, there is no iconophilia without iconoclasm.Footnote ¹⁷

These attributes of national symbols—their importance to the state and their “peculiar symbolic duality”Footnote ¹⁸ —make them attractive props for displays of political dissent. For dissentients, desecrating a flag conveys sharp criticism of the stateFootnote ¹⁹ in a dramatic manner likely to capture the interest of bystanders, the media, and, of course, the state itself.Footnote ²⁰ For the state, such an act represents an extreme contrary political statement, provocative not only to itself, but also, potentially, to politically orthodox citizens.Footnote ²¹ Flag-based demonstrations are not rare, but nor are they commonplace, and they usually arise at times of high political controversy casting doubt on the legitimacy of government action.Footnote ²² National anthems, on the other hand, are less apt protest vehicles than flags and seldom become the focal point of serious political conflict except where a nation or a people is experiencing a serious, collective identity crisis.Footnote ²³

3. Regulating the use of national symbols

Rules of etiquette have surrounded flags and anthems throughout history. In some places, the proper and improper uses of national symbols are a matter of law. Legislation penalizing national flag disrespect is rather common in the Asia-Pacific region, with examplesFootnote ²⁴ to be found in New Zealand,Footnote ²⁵ Singapore,Footnote ²⁶ India,Footnote ²⁷ Indonesia,Footnote ²⁸ Thailand,Footnote ²⁹ China,Footnote ³⁰ and Hong Kong. The national anthem is similarly protected in Singapore,Footnote ³¹ Malaysia,Footnote ³² India,Footnote ³³ Indonesia,Footnote ³⁴ China, and now Hong Kong.Footnote ³⁵ An absence of such laws does not necessarily mean a person is free to use national symbols in expressing political views: other rules make it inadvisable to, for instance, commandeer the national flag in MalaysiaFootnote ³⁶ or object to a flag-raising ceremony in Japan.Footnote ³⁷ Conversely, an extant flag law might be subject to constitutional constraints that significantly curtail its effect, as in New Zealand,Footnote ³⁸ or negate it entirely, as in the US.Footnote ³⁹ In these countries, and in others that lack laws directed at iconoclastic speech, like Australia, the UK, South Africa, and Canada,Footnote ⁴⁰ desecration of national symbols may be politically and socially controversial, but it does not attract legal sanction, absent other elements or incidents of criminality such as public disorder or destruction of property.

There is international consensus on many crimes,Footnote ⁴¹ but, evidently, the denigration of national symbols is not one of those. Many citizens will hold their own views on whether such acts should be criminalized, but the question is “beset with ironies, paradoxes and enigmas”Footnote ⁴² for policy-makers and courts. From a practical standpoint, such laws can be counter-productive. By arresting and prosecuting citizens for engaging in symbolic protest, the state confirms its intolerance of dissent. This tends to bolster the righteousness of resistance and further incite the unwanted rebellious behaviour. On the other hand, where citizens are not punished for symbolic protest, institutional respect for rights, freedoms, and a plurality of viewpoints is confirmed. Such tolerance on the state’s part might prompt onlookers to adjudge the desecration of a national symbol to have been excessive or misdirected, reducing the effectiveness and legitimacy of the protest.Footnote ⁴³

Then there is the conflict with free-speech guarantees, which are prominent in international law and ubiquitous in modern Constitutions.Footnote ⁴⁴ Punishment of symbolic expression derogates from this fundamental human right and the state faces a challenge to justify the derogation. Free-speech rights are not unlimited, but they tend to be strongest when the speech in question is political—which symbolic speech usually is—particularly in polities that claim to hold democratic values.Footnote ⁴⁵ The criminalization of harmful behaviour is easily justified, but the legitimacy of criminalizing merely offensive speech—especially where it does not offend the dignity of any real person but merely the perceived dignity of the already-powerful state—is much more problematic.Footnote ⁴⁶ It is easy to understand how a state may be tempted to legislate respect for its authoritarian aesthetic: “by surrounding itself with elaborate rules of flag usage, the nation-state requires of its citizens the kind of attention, distance, respect, and pledges of unconditional loyalty that are usually claimed by sacrosanct authorities.”Footnote ⁴⁷ But such thinking sits uncomfortably alongside liberal democratic ideals of popular sovereignty and state accountability.

Lastly, there are practical difficulties in describing and circumscribing a robust and defensible law to ban symbolic expression. Suppose that a flag law is drafted not to aggrandize the state, nor to protect sensitive feelings, but for the comparatively sensible reason of keeping the peace—the idea being that burning the flag may provoke violence on the part of inflamed protesters or enraged patriots. Such a law risks being overinclusive, banning flag-based political speech that does not threaten the peace, such as a sit-down demonstration on a university campus. It also risks being underinclusive, missing symbolic speech that does tend to stir up disorder, such as a Ku Klux Klan cross-burning.Footnote ⁴⁸ In both cases, the law fails to achieve its purported objective of preventing chaos, whilst nonetheless chilling political speech. US Supreme Court judge Louis Brandeis famously wrote:

That position has made its way into international law, at least at the level of “soft law,” via the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which provide that no one should be punished for criticizing or insulting the nation, the state or its symbols, or the government, its agencies, or public officials, unless the criticism or insult was intended and likely to incite imminent violence.Footnote ⁵⁰

Bans on speech involving national symbols are often attempts to legislate away the effects of a legitimacy deficit, but they damage legitimacy further by constraining political discourse and politicizing criminal courts. In short, they misfire, backfire, contradict democratic norms, and offend common-law principles. Where they are enforced, they tend to transcend the utilitarian function of regulating public protest,Footnote ⁵¹ suppressing political dissent for the comfort of the state. These points, implicitly recognized by the international community and those democracies that have resisted regulating symbolic speech, are illustrated by the Hong Kong flag cases.

4. Flags through the Hong Kong courts

Upon its formation in 1997, the HKSAR acquired the national flag of China and a new regional flag of its own, consistently with the new guiding principle of “one country, two systems.”Footnote ⁵² The flag laws under which Ng Kung Siu and his fellow demonstrators were prosecuted the following year provide: “A person who desecrates the national [or regional] flag … by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence.” At trial, the defendants invoked Article 27 of Hong Kong’s Basic Law, providing for freedom of speech and demonstration; Article 16 of the Hong Kong Bill of Rights, providing for freedom of expression in the same terms as Article 19 of the International Covenant on Civil and Political Rights (ICCPR);Footnote ⁵³ and leading US authorities on the constitutional protection of flag-based expression.

The magistrate convicted the defendants.Footnote ⁵⁴ He evinced distaste for their actions and expounded lengthily on the significance of the flags, particularly the national flag, which he said “has been and should remain as a sacred symbol respected by all Chinese people regardless of their social, political or philosophical beliefs.” Given the strong patriotic feelings it aroused, he opined that “it would not be difficult for a reasonable man to visualise the possibility of a confrontation or even a riot triggered off by someone burning or desecrating the national flag in public.”Footnote ⁵⁵ He concluded that the restriction on freedom of expression was necessary for the preservation of public order. Unswayed by the US precedents, the magistrate instead quoted approvingly from Rehnquist J.’s dissenting view in Texas v. Johnson: “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”Footnote ⁵⁶

In a succinct, per curiam judgment, the Court of Appeal (CA) overturned the convictions.Footnote ⁵⁷ It held that the flag-related restriction on freedom of expression was unnecessary because the criminal law contained other provisions that addressed public disorder and empowered the police to respond to it. Answering the government’s submission that the necessity for flag laws was a political matter outside the court’s jurisdiction, the CA declared: “Ultimately, it must be for the courts to decide what is necessary having given due consideration and respect to the legislature which enacted these provisions.”Footnote ⁵⁸ The CA referred to overseas jurisprudence and observed that no leading common-law jurisdictions had criminalized flag desecration. It returned to Texas v. Johnson, this time citing approvingly from Brennan J.’s majority view, which held that the government could not prohibit expression of an idea merely because it found it offensive or disagreeable, and which contradicted Rehnquist J. on the sacrosanctity of the flag: “nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.”Footnote ⁵⁹

The Court of Final Appeal (CFA) allowed the appeal and restored the convictions.Footnote ⁶⁰ Chief Justice Li, writing for the majority, began with a ringing endorsement of freedom of expression:

But he downplayed the restriction on that freedom imposed by the legislative ban on flag speech:

The CFA’s judicial method diverged dramatically from the CA’s. Rather than assessing for itself the necessity, rationality, and proportionality of the flag laws, the usual approach when determining the constitutionality of a restriction on a fundamental right,Footnote ⁶³ the majority deferred to the view of other limbs of government, in both Hong Kong and China, that the flag laws were appropriate. In the course of his judgment, Li C.J. cited little case-law, instead referring to the will of the Hong Kong legislature, a 1949 resolution of the Chinese People’s Political Consultative Conference, a decision of the Standing Committee of the National People’s Congress, the PRC flag law, and other PRC criminal penalties for flag-related offences.

Li C.J. also referred to two speeches: one by the PRC president in Hong Kong, discussing the historical significance of the flags; the other by the Chairman of the Drafting Committee of the Basic Law to the National People’s Congress, in which it was said that the five stars on the Hong Kong flag “symbolize the fact that all Hong Kong compatriots love their motherland.” Developing the patriotic theme, Li C.J. stated that the establishment of “one country, two systems” and the reinforcement of national unity and territorial integrity were vital objectives, and that the protection of the flags, having regard to their symbolism, played an important part in attaining these goals. He referred to Hong Kong as an “inalienable” part of China no fewer than six times, as if secession were somehow at issue.

The majority did rely on a legal mechanism to legitimize the derogation from freedom of speech: “public order (ordre public)”, a term found in the ICCPR. Li C.J. accepted that its meaning was imprecise and elusive, but held that it included what was necessary for the general welfare or the interests of the collectivity as a whole, and that it was a function of time, place, and circumstances. He did not comment on the US cases, but observed that “other democratic nations” (Bokhary P.J. cited Italy, Germany, and Portugal, all formerly authoritarian civil-law jurisdictions) had criminalized flag desecration, taking that as evidence that flag-desecration laws could be regarded as necessary to protect “public order (ordre public).” Li C.J. concluded that, in the circumstances of “the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong”—a phrase appearing in the Basic Law—the protection of the flags was an interest within the concept of “public order (ordre public).”Footnote ⁶⁴

5. Assessing the flag cases

The Ng Kung Siu decisions at all three levels reward closer examination. The magistrate’s decision is particularly vulnerable to criticism. First, his idea that all Chinese people—including Hongkongers just one year after reunification—had fully subscribed to the authoritarian aesthetic of the PRC was a baseless fiction. Second, his speculation as to the likelihood of violence at flag-based demonstrations bore no resemblance to the events of the peaceful procession in question. Third, he ignored established legal rules as to necessity and the burden of proof thereof when assessing derogations from fundamental rights.

The CA’s decision leaned on established jurisprudence on fundamental rights, US precedents on symbolic speech, and the conspicuous absence of bans on flag speech in leading common-law jurisdictions. It lacked the support of common-law precedent outside the US, but this lacuna was filled in the decade that followed. In the English case of Percy v. Director of Public Prosecutions,Footnote ⁶⁵ Percy was convicted of offensive conduct under the Public Order Act 1986 (UK), section 5, for defacing a US flag in view of US military personnel, causing them distress. On appeal, the conviction was overturned for incompatibility with Article 10 of the European Convention on Human Rights.Footnote ⁶⁶ The court considered that, balancing freedom of expression against the right of others not to be insulted or distressed, and accepting the need in a multicultural society to prevent the desecration of objects of veneration to one culture, a total ban on flag speech was disproportionate, and the trial judge had placed too much weight on the fact that the defendant could have demonstrated by other means.Footnote ⁶⁷ In the New Zealand case of Hopkinson v. Police,Footnote ⁶⁸ Hopkinson was convicted for burning the national flag, contrary to the Flags, Emblems, and Names Protection Act 1981 (NZ), section 11, while protesting the Iraq War. His conviction was overturned, the appeal court holding that flag-burning fell within the scope of the freedom of expression and that the proscribed “dishonouring” of the flag required something more. The court cited the US cases to support the proposition that the criminal law should not be used to protect the national flag as the dominant political symbol, and opined that New Zealand had reached a “level of maturity in which staunch criticism is now regarded as acceptable.”Footnote ⁶⁹ Later, in Morse v. Police,Footnote ⁷⁰ Morse was convicted of offensive behaviour contrary to the Summary Offences Act 1981 (NZ), section 4, after burning the flag during a protest at an Anzac Day ceremony, offending numerous attendees. Overturning her conviction, the final appeal court held that the element of “offence” required an actual effect on public order, and that the audience’s response was to be judged according to the expected standards of citizens of a tolerant, democratic society who were concerned to uphold the Bill of Rights.Footnote ⁷¹

The CFA took a different path from the UK court in Percy, relying on the idea that the flag laws restricted a mere mode of expression rather than its substance. Such reasoning is open to criticism. First, the restriction on flag speech is not de minimis. Iconoclastic speech is powerful and persistent, evident not least in the fact that governments feel driven to ban it despite a lack of evidence that it is harmful or offensive. Second, the restriction is not confined to a mode of expression. It affects the ability to visually communicate substantial political ideas, concealing “content-based, indeed viewpoint-based, discrimination under the benign mantle of a mere manner of protest regulation.”Footnote ⁷² Third, the scope of the restriction is not fixed. If flag desecration is inessential because there are other ways to convey the same message, then no single communication method is necessary because the speaker could always have used another,Footnote ⁷³ rendering all modes of expression individually vulnerable and paving the way for piecemeal regulation of speech until contestation and dissent are effectively suppressed—the subsequent banning of the national-anthem protest in Hong Kong demonstrates this point, and disproves Bokhary P.J.’s optimistic view that the restriction that the CFA had opted to uphold would go no further than flags and emblems.Footnote ⁷⁴ The US Supreme Court’s idea that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place,”Footnote ⁷⁵ along with the medium-neutral wording of freedom of expression in the ICCPR and other rights-conferring constitutional instruments, suggest the preferable view that mode-based arguments should be viewed with scepticism.

Other aspects of the CFA decision diverged from the New Zealand approach in Hopkinson,Footnote ⁷⁶ particularly when it came to the effect of social factors on the boundaries of free speech. The New Zealand court took stock of the state of the nation to justify an expansive approach to freedom of expression, but the CFA did the same with the opposite result, easily concluding that the “time, place and circumstances” of post-reunification Hong Kong justified a blanket ban on flag speech. Support for this proposition came from the government’s “Brandeis Brief,” which contained materials on social, political, and economic considerations outside the ordinary scope of judicial notice,Footnote ⁷⁷ and which argued that the necessity of the flag legislation was not merely a question of law, but involved the values of the Hong Kong community. The CFA’s cited authorities, however, reveal that the values in question were those that China’s political leaders wanted Hong Kong society to hold. The touchstone was not the community’s values, but the wishes of the political power, and to those wishes the CFA deferred. This was a remarkably wide margin of appreciation from a court that, only months earlier, had stridently asserted its judicial independence and constitutional review powers in a manner unimaginable to any other court in China. It is now generally recognized that the backlash from the CFA’s earlier assertiveness led to its deference in the flag case.Footnote ⁷⁸ In the so-called right-of-abode cases, the CFA had claimed and exercised interpretive authority on a constitutional question involving mainland-Hong Kong migration and residency rights. The Hong Kong government responded to an adverse ruling by making an extraordinary appeal to the Standing Committee of the National People’s Congress (NPCSC). The NPCSC rebuked the CFA and issued a contradictory constitutional interpretation, triggering a crisis and forcing the CFA to wind back its decision.Footnote ⁷⁹ Tai writes:

A cynical observer might accuse the CFA of judicial dissembling in the flag case: its reasoning is perfunctorily brief; it cites authorities that do not stand for the legal principles it finds; it fails to address authorities referred to it that would be harmful to its findings; it draws doubtful equivalences.Footnote ⁸¹ Further, it could be said that the court relied on fuzzy concepts, namely “public order (ordre public).” The majority decision projects a degree of cognitive dissonance over this concept, being unable to define it but able to accept that it justified a restriction on freedom of expression. Bokhary P.J., in his evidently reluctant concurrence, found “ordre public” too elusive of meaning and opined that “the courts must clarify it before using it as a test by which to judge what, if any, restriction may constitutionally be placed on a fundamental right or freedom.”Footnote ⁸² Indeed, some years later, all five CFA justices concluded that “ordre public” was too vague and broad to underpin the police Commissioner’s administrative discretion to restrict the right of assembly.Footnote ⁸³

Flag-case critics who charged that the court gave away a fundamental right without compelling evidence that its exercise should attract criminal sanctionFootnote ⁸⁴ seem to have had a point, but even those commentators are unlikely to have foreseen the expansion of sacrosanct symbology some two decades later.

6. Consequences of the flag cases

The consequences of Ng Kung Siu were largely as might have been predicted. Flag speech was not evidently deterred, but repeated, with convictions often worn as a badge of honour amid deteriorating state–society relations. Meanwhile, the ambit of banned expression steadily gained in breadth, with new flag incidents pushing the limits of the offence and, eventually, the addition of anthem speech. Whatever its intention, the Hong Kong judiciary’s approach to symbolic expression has made it a partner in the repression of civil society.

Flag expression did not immediately go mainstream, with as few as seven convictions from 1998 to 2011,Footnote ⁸⁵ prior to the explosion of dissent during the 2014 Umbrella Movement. But it remained a dramatic and effective tool of political opposition, with prosecutions generally reported by news media and offenders gaining publicity, notoriety, and community support. Koo Sze Yiu, who boasted Hong Kong’s most extensive record of flag desecration,Footnote ⁸⁶ was once sentenced to nine months in prison (halved on appeal) and immediately vowed to continue desecrating flags.Footnote ⁸⁷ Leung Kwok Hung was prosecuted several times for desecrating flags and emblems, inter alia by burning and trampling, yet continued to be elected to the Legislative Council.Footnote ⁸⁸

In 2017, Legislative Council member Cheng Chung Tai was convicted of flag desecration for a flippant act: flipping upside down some miniature flags that pro-establishment legislators kept on their desks.Footnote ⁸⁹ Although there had been no “burning, mutilating, scrawling on, defiling or trampling on” these flags, the magistrate held that the statutory phrase “desecrates … by” did not limit the criminal conduct to the acts listed, and that “dishonouring” and “treatment with contempt” were implicitly included in the description of the offence. This arguably expanded the offence,Footnote ⁹⁰ violating the statutory interpretation maxim expressio unius est exclusio alterius (when one or more things of a class are expressly mentioned, others of the same class are excluded)Footnote ⁹¹ as well as the general rule that penal enactments are to be construed strictly and not extended beyond their clear meaning.Footnote ⁹² The magistrate imposed a modest fine,Footnote ⁹³ perhaps cognisant of the deed’s trifling nature and perceptions of a politically motivated prosecution, but pro-establishment law-makers lacked such restraint, attempting to permanently expel Cheng from the legislature.Footnote ⁹⁴

The CFA’s reasoning in Ng Kung Siu raised questions that formed the basis of arguments in later flag-desecration appeals involving Koo Sze Yiu.Footnote ⁹⁵ The defence submitted that (1) 15 years on, the “time, place and circumstances” might have evolved such that flag expression could now be permitted; (2) the necessity and proportionality of the restrictions on the freedom of expression had not been demonstrated to the usual standard; and (3) convincing arguments could be mounted on the now classic US flag casesFootnote ⁹⁶ and the emerging New Zealand case-law.Footnote ⁹⁷ The courts rejected each of these arguments.

First, the phrase “time, place and circumstances,” according to Derek Pang J., referred to Hong Kong’s new constitutional order and nothing else.Footnote ⁹⁸ This was subsequently confirmed by a CFA appeal committee, which said that “time, place and circumstances” was not a general invitation to revisit decisions of the court from time to time.Footnote ⁹⁹ In effect, time and circumstances were deemed frozen as of 1 July 1997. According to this reasoning, the idea that Hong Kong and China had become sufficiently mature to take criticism, accepted in New Zealand and implicit in other leading common-law jurisdictions, would never be countenanced.

Second, persisting in the mode of curt denial, the CFA appeal committee dismissed the submissions on necessity and proportionality on the basis that they sought to reargue matters raised in HKSAR v. Ng Kung Siu—that, of course, being the point.

Third, similarly again, the CFA appeal committee declined to reconsider, or consider afresh, the overseas cases. However, Derek Pang J. in the lower court had already addressed those cases, distinguishing them on statutory construction grounds without admitting to a divergence of principle. He held that Texas v. Johnson had involved a statutory restriction that went beyond the form of the expression and restricted its content, because it had aimed to protect the physical integrity of the flag against impairments that would cause serious offence to others; this, he said, contrasted with the Hong Kong legislation that proscribed dishonouring the flag in all circumstances but permitted the same offensive message to be conveyed by other means.Footnote ¹⁰⁰ It is doubtful that the US (or UK or New Zealand courts) would endorse this attempted mode-content distinction. Derek Pang J. further held that the legislation at issue in United States v. Eichman could be disposed of in similar manner, as the statutes shared the fundamental aim of preventing disrespect to the national flag; this, he said, distinguished it from the Hong Kong legislation.Footnote ¹⁰¹ Such a distinction between the US and Hong Kong legislation is highly doubtful, given the emergent purposive reading of “desecrates” in the Hong Kong legislation to include “disrespects” and “dishonours.”Footnote ¹⁰² Rather than engaging with such issues, the judge fell back on the fact that he was bound by Ng Kung Siu, while facilely dismissing the New Zealand case-law because it had acknowledged the scope for differences of opinion on flag expression.

Thus, through two decades of flag-desecration litigation, the Hong Kong courts have responded to overseas developments by lurching from denial to gymnastic attempts to dispose of persuasive authority in a judicially defensible manner. This, together with the overt rejection of the Hong Kong approach by common-law courts elsewhere,Footnote ¹⁰³ reveals the jurisprudential and normative weaknesses of the Hong Kong position on this issue. The CFA’s broader constitutional jurisprudence has continued to evolve, and recent authority suggests that the national-anthem law could be subject to more detailed scrutiny than was the flag law, involving a weighing of benefit against detriment in addition to the more established criteria of a legitimate aim, rationality, and proportionality.Footnote ¹⁰⁴ However, much scope for judicial flexibility remains, not least in whether to give a narrow or wide margin of appreciation and thus which proportionality standard will apply,Footnote ¹⁰⁵ and recent analysis suggests that the more structured approach may even lead to increased deference.Footnote ¹⁰⁶ Given the court’s unwavering position on flags, combined with the dramatic deterioration in political stability, it is almost impossible to imagine the national-anthem law running aground in Hong Kong’s courts.

7. What should we expect of courts?

The CFA was faced with a set of bad choices in Ng Kung Siu. Had it assertively struck down the legislation, it likely would have been overruled by the political authority, damaging its ability to serve as guardian of the rule of law.Footnote ¹⁰⁷ Had it deferentially referred the question to the political authority, its position would have been similarly undermined.Footnote ¹⁰⁸ Undoubtedly aware of the possible consequences, the court acted with a degree of timidity, confining itself to the perceived bounds of politically acceptability.Footnote ¹⁰⁹ Its decision was fairly criticized by some as a legally unjustified surrender of a fundamental rightFootnote ¹¹⁰ and fairly lauded by others as a keystone for the continuation of ICCPR rights and constitutional review under difficult circumstances.Footnote ¹¹¹ It is, however, important not allow sympathy for the court’s predicament to morph into apologia for a decision made under duress with repressive effect.Footnote ¹¹²

The Hong Kong situation illustrates the tenuous position of courts in authoritarian regimes. Banning symbolic protest, restricting individual rights, and suppressing civil society are typical acts of authoritarian regimes as they seek to impose social solidarity under their rule. Repressive measures escalate as the inherent instability of undemocratic systems prompts the regime to abandon “strategic restraint”Footnote ¹¹³ in the cause of self-preservation. In the attempt to project legitimacy and draw citizens into “a community of consenting clientage,”Footnote ¹¹⁴ the exercise of coercive authority frequently takes legal form; this may be termed abusive legality or “lawfare.” Under such circumstances, the position of independent courts is precarious, and their activism or passivity, or their level of activity in rights protection, may be complex and changing and depend at any given moment not only on institutional design, legal principles, or ideas about the rule of law, but on “a whole constellation of political forces and personal proclivities.”Footnote ¹¹⁵

Authoritarian regimes leverage courts, inter alia, to establish social control and sideline political opponents, to bolster their claim to legal legitimacy, and to implement controversial policies at a distance from the political core. Conversely, citizens can sometimes leverage courts against the state, and courts may become important sites of political resistance where civil-society actors challenge policy and publicize malfeasance, deterring future abuses and developing activist skill sets. Courts must walk a tightrope: the assertion of judicial power can lead to its expansion over time, or it can trigger retribution from a regime intent on safeguarding the legal mechanisms by which it maintains power and control. Where a court defers to executive power, the regime may be inclined to extend to it greater institutional autonomy.Footnote ¹¹⁶ There is, however, an ominous alternative: that judicial deference establishes repressive precedents and emboldens authoritarian regimes to expand and build upon the ground surrendered. Such “anticipatory obedience” can have the effect of “teaching power what it can do.”Footnote ¹¹⁷

The judicial deference on display in Ng Kung Siu will have appeased Beijing, but the latter will not have missed the point that the courts could be intimidated into submission.Footnote ¹¹⁸ The decision perpetuated the conditions it validated while lowering the bar, at least temporarily,Footnote ¹¹⁹ for constitutional review of executive and legislative acts. Subsequent constitutional interpretations by the NPCSC demonstrate that the courts have not gained substantial freedom to rule independently on politically sensitive matters.Footnote ¹²⁰ Meanwhile, the government can add national-anthem disrespect to the range of banned symbolic expression, secure in the knowledge that the judiciary is bound to uphold such restrictions on the freedom of expression.

8. The futility of legislating for respect

States use national symbols to mould cultures conducive to their authority, but the task of aligning a nation and its culture with the state may not be straightforward.Footnote ¹²¹ A nation can be described as a human population with a shared history and culture.Footnote ¹²² Attributes of a nation include a common language; a base of intellectual, religious, and artistic traditions; shared experiences in the territorial, political, economic, and military spheres; and common legal rights and duties.Footnote ¹²³ Its symbols can include not only flags, emblems, and anthems, but also modes of expression, forms of etiquette, traditional dress, national recreations, allegorical figures and folk heroes, museums and memorials, architectural and engineering forms, literature, music, cinema, and the fine arts.Footnote ¹²⁴ The state, by contrast, is a political entity with political goals, and the symbols it claims and controls represent only a fragment of a nation’s lived experience. The state’s ability to associate itself with the broader features of a nation is challenged particularly in circumstances of alien rule, whether that rule is imperial or, as in Hong Kong, a case of post-colonial annexation. A new “tradition” needs to be invented and symbols, rituals, and customs erased or overwritten to correspond to the new political reality.Footnote ¹²⁵ In these situations, flags and anthems often fail to fulfil their function as promoters of national unity, especially where propaganda and ostentatious patriotism must be deployed constantly, with jarring effect, to remind the country that it is in fact a country. In these circumstances, the hidden meanings attached to state symbols bring social divisions to the fore, whether because the roots of those symbols lie in a cultural past remembered and interpreted differently by different groups, or because of the symbols’ contemporary associations and political exploitation.Footnote ¹²⁶

The Chinese government regards patriotic nationalism as a cornerstone of its propaganda and control systems.Footnote ¹²⁷ The symbols of state are key components of China’s civil religion.Footnote ¹²⁸ Communist ideas and motifs dominate, signalling the legitimacy of the ruling Chinese Communist Party. The national flag comprises a field of revolutionary redFootnote ¹²⁹ with gold stars representing the Party and, on a smaller scale, the four social classes.Footnote ¹³⁰ The national anthem, “March of the Volunteers,” is a revolutionary poem exhorting the people to join together, rise up, and fight an unidentified enemy.Footnote ¹³¹ Historical figures from all eras become national heroes, and are purged and rehabilitated to serve the political needs of the day.Footnote ¹³²

In line with this national political strategy, the symbolic harmonization of Hong Kong is a work in progress. The regional flag shares the red field and five stars of the national flagFootnote ¹³³ and, importantly, retains no trace of the former colonial flag—a Blue Ensign emblazoned with the Hong Kong coat of arms. Other artefacts of British rule—“royal” titles, public holidays, images on currency and postage stamps, old Royal Mail pillar boxes, and even streets named after important colonial figures—have been diligently cleansed or suggested as targets for “harmonization.”Footnote ¹³⁴ Major projects from the US$18 billion Hong Kong–Zhuhai–Macau Bridge to the planned “Bay Area” development zone signal increasing integration, as do linguistic dictates such as the rebranding of the Hong Kong–China border, now officially a “boundary.”

But China’s state symbols are set up to fail in Hong Kong. They are not pluralistic vehicles that represent a shared identity capable of accommodating all citizens.Footnote ¹³⁵ Instead, they glorify the political power holder and evoke an alien political, social, and economic ideology. Ironically, the symbolic “otherness” of China is reinforced by the existence of a separate Hong Kong flag, which confuses allegiances,Footnote ¹³⁶ and by the content of the Basic Law, which reflects and preserves Hong Kong’s distinct way of life. The symbolic discordance is a consequence of deep historical and cultural differences. Hong Kong’s territory was historically distinct from mainland China for its 150-plus years as part of Britain’s global empire, the institutional legacy of which remains apparent. The Cantonese culture and language, with their diverse products from cuisine to the arts, have thrived largely in Hong Kong and other overseas Chinese communities. Hong Kong’s traditional values and beliefs have not been displaced by communist mythmaking nor suppressed by a state jealous of organized religion. The economy is theoretically open, capitalist, and laissez-faire rather than centrally planned. The legal system is entirely different from the mainland’s, the latter being based in the civil-law tradition and eschewing the separation of powers. The majority of Hong Kong people identify as Hongkongers rather than as Chinese, and this sense of separate identity is increasing rather than diminishing over time.Footnote ¹³⁷ It may be said that Hong Kong qualifies as a nation but the Chinese state incorporating Hong Kong does not.Footnote ¹³⁸

Crucially, Hongkongers remember well historical events that have been censored or reinterpreted on the mainland, from the Great Leap Forward and the Cultural Revolution, which caused millions of Chinese to flee to Hong Kong between the 1950s and 1970s, to the Tiananmen Square crackdown of 1989, poignantly commemorated in Hong Kong every year.Footnote ¹³⁹ For many Hongkongers, the flag and anthem are associated with the PRC’s turbulent past and, now, with its increasingly authoritarian stance toward their own city. Such associations are only reinforced by China’s clumsy and occasionally paranoidFootnote ¹⁴⁰ attempts to enforce national unity and social harmony via those symbols: legislating against symbolic political expression; including ill-fitting patriotic and ideological text in the national-anthem law;Footnote ¹⁴¹ insisting that the history of an anthem whose author was politically persecuted be taught in schools; labelling a student who expressed distaste toward the anthem an “enemy of the people” who had “damaged national security.”Footnote ¹⁴² Ironically, in Hong Kong, where civil liberties are both cherished and justiciable, it is arguably more offensive to prevent a person from disrespecting the flag or mocking the anthem than to see a person doing those things.

In this context, China’s state symbols are ready-made targets for anti-authoritarian protest in Hong Kong, and legislating for respect towards them seems like spitting into the wind. This has been borne out by the persistence of symbolic dissent.Footnote ¹⁴³ If the object of the flag and anthem laws is simply compliance, that goal may be achieved once a few harsh punishments have been meted out,Footnote ¹⁴⁴ diminishing the role played by the state’s sacrosanct symbols in strife if not in politics.Footnote ¹⁴⁵ But if the object is respect, a false equivalence has been drawn between the sentiment and an outward show thereof. Even insecure authoritarian regimes ought to understand that true respect can only be earned, not demanded. By 2019, the lesson was abundantly clear as political turmoil reached new heights and symbolic dissent escalated in two distinct directions: first, by the increasingly frequent and flagrant desecration of state symbols, heedless of the legal ramifications; and second, by the transgressive but not unlawful invocation of alternative symbols, such as the colonial Hong Kong flagFootnote ¹⁴⁶ and, with particular poignancy, a home-grown anthem, “Glory to Hong Kong.”Footnote ¹⁴⁷

Of course, citizens may genuinely venerate their national symbols, and such values might justify a measure of protection for those symbols.Footnote ¹⁴⁸ But claims of that sort must be balanced against fundamental rights, including freedom of expression and the right to participate in political life, and the argument that community values should override those rights is both relativisticFootnote ¹⁴⁹ and tyrannical. In the case of national symbols, the tyranny is usually not of an offended majority, whose purported views tend to remain unsubstantiated, but of the political power holder. Where patriotic concerns are accepted as a basis for jurisprudence, any claim to be protecting community values inevitably gives way to the political imperatives stitched into the authoritarian aesthetic.Footnote ¹⁵⁰ Where the courts place the interests of political power above those of the people, human rights and the rule of law inevitably suffer.