Provisional Legislative Council

PLC Paper No.322/96-97

Ref: PLC/BC/02

Paper for House Committee
Meeting on 31 May 1997

Report of the Bills Committee on
National Flag and National Emblem Bill and
Regional Flag and Regional Emblem Bill

Purpose

This paper reports on the deliberations of the Bills Committee on National Flag and National Emblem Bill and Regional Flag and Regional Emblem Bill and seeks the support of the House Committee on the recommendation of the Bills Committee that the Second Reading debate of these two Bills be resumed at the Council meeting to be held on 14 June 1997, subject to Committee Stage amendments (CSAs).

Background

The Bills

2.The Bills were introduced into the Council on 3 May 1997. The National Flag and National Emblem Bill provides for the use and protection of the national flag and the national emblem in the Hong Kong Special Administrative Region (HKSAR) and for incidental matters. It adopts relevant provisions of the 1990 Law on the National Flag of the People's Republic of China and the 1991 Law on the National Emblem of the People's Republic of China and seeks to ensure the observance of national flag and the national emblem as symbols of sovereignty and national dignity and that only properly designed and manufactured national flag and national emblem can be displayed in HKSAR. The Bill includes the following provisions:

  1. prohibition of disrespectful acts against the national flag and the national emblem;

  2. detailed specifications on the national flag and the national emblem;

  3. restrictions on the occasions on which the national flag and the national emblem may be displayed;

  4. specifications on the occasions on which the national flag may be flown at half-mast;

  5. requirements that main Government buildings of HKSAR must display the national flag and the national emblem; and

  6. the use of executive order by the Chief Executive to specify the places at which the national flag and the national emblem must be displayed in HKSAR.

3.The Regional Flag and Regional Emblem Bill contains similar provisions to those of the National Flag and National Emblem Bill. It also adopts the provisions of the "Provisional Arrangements on the Use of the Regional Flag and the Regional Emblem of HKSAR" as endorsed by the Preparatory Committee in August 1996. In particular, it provides for:

  1. the protection of and respect for the regional flag and the regional emblem;

  2. detailed illustration and design of the regional flag and the regional emblem; and

  3. the use of executive order by the Chief Executive to specify the places at which the regional flag and the regional emblem must be displayed in the HKSAR.

The Bills Committee

4.At the House Committee meeting held on 10 May 1997, it was decided that a Bills Committee should be formed to study these two Bills. Ten Members joined the Bills Committee, among whom Hon HO Sai-chu was elected Chairman and Hon Kennedy WONG Ying-ho, Deputy Chairman. The membership list of the Bills Committee is at Appendix I. The Bills Committee has met three times, including two meetings with members of the Chief Executive's Office.

5.The Bills Committee placed advertisements in two newspapers of Hong Kong, issued press releases to the media of Hong Kong, and placed notices on the internet to invite public views on the Bills. The Bills Committee also wrote to the major trade, advertisement and industry associations, and the Hong Kong Bar Association and the Law Society of Hong Kong for views. There was only one submission from the public, which mainly focuses on when to hoist the national flag. The Bills Committee has referred it to the Chief Executive's Office for consideration.

Findings and Deliberations of the Bills Committee

6.The gist of findings and deliberations of the Bills Committee in respect of the two Bills is summarized in the following paragraphs.

Whether it will constitute an offence if the national flag is flown or the national emblem is hung in HKSAR by any person at will

7.Clause 3(2) of the National Flag and National Emblem Bill is an enabling clause for the Chief Executive to stipulate the organisations which must display or use the national flag and the national emblem, and the other places at which, the occasions on which, the manner in which and the conditions under which, the national flag and the national emblem must be displayed or used. Clause 6(1) prohibits certain uses of the national flag. Despite these provisions, the Bills Committee understands from the Chief Executive's Office that generally speaking, the Bill does not seek to preclude the display of national flag of the correct specifications in HKSAR by any person at will on or after 1 July 1997, although in doing so, he has to observe the manner in which and the conditions under which the national flag must be flown.

8.The Bills Committee has also ascertained from the Chief Executive's Office that it will not be an offence if an ornament with a design of the national flag is displayed inside a building or inside a car for decoration purpose. However, it will prohibit the design of the national/regional flag or national/regional emblem to be included in the logo of a company or an organisation. It is the intention of the Chief Executive's Office to effect the prohibition in a directive to be issued in HKSAR on or after 1 July 1997 and to arrange for due publicity regarding the display of the national/regional flag and the national/regional emblem in HKSAR.

Whether it will constitute an offence if ornaments illustrated with the design of national flags are manufactured by enterprises in or imported into HKSAR

9.Clause 5(1) stipulates that the national flag (for flying) and the national emblem (for hanging) may be manufactured in HKSAR only by enterprises designated by the Central People's Government. After clarification with the Chief Executive's Office, the Bills Committee understands that it will not constitute an offence for enterprises not designated by the Central People's Government to manufacture ornaments in HKSAR with the design of the national flags, or to import such ornaments. However, the Bills Committee understands that in accordance with Clause 6(2) of the National Flag and National Emblem Bill, the national emblem or its design cannot be displayed in ornaments in everyday life.

Whether it will constitute an offence if the background of an advertisement/a film has displayed the national/regional flag and/or the national/regional emblem

10.Clause 6(1) of the National Flag and National Emblem Bill has stipulations that the national flag and the national emblem or their designs must not be displayed or used in trademarks or advertisements. The Regional Flag and Regional Emblem Bill also contains such stipulations. The Bills Committee understands from the Chief Executive's Office that if the background of an advertisement/ a film unintentionally displays any such flag/emblem, and if it is confirmed that it does not constitute an important part of such advertisement/film shot, it will not constitute an offence under the provisions of the Bills.

Whether different levels of penalty should be set for desecrating the national flag/emblem on the one hand and the regional flag/emblem on the other hand

11.Clause 7 of the National Flag and National Emblem Bill stipulates that "A person who desecrates the national flag or national emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years'. Clause 7 of the Regional Flag and Regional Emblem Bill has the same provision in respect of the regional flag or the regional emblem. The Chief Executive's Office explains that although the national flag and the national emblem take precedence over the regional flag and the regional emblem, it is however necessary to give them the equal degree of respect and therefore it is appropriate to impose the same upper level of fine and the same upper limit of years of imprisonment for any act of desecration, especially in the light that:

  1. "one country" and "two systems' are of equal importance as far as HKSAR is concerned; and

  2. the national flag and the national emblem represent the dignity of the nation. The regional flag and the regional emblem represent the mother country resuming the exercise of sovereignty over Hong Kong. Since the designs of the regional flag and the regional emblem incorporate the features of the national flag, they should therefore signify the dignity of the People's Republic of China.

12.Members of the Bills Committee however have divided opinion on whether the penalty in respect of the offences should be set at the same level.

13.The members who are in favour of imposing the same level of penalty on the two offences regard that the same degree of respect should be given to the two kinds of flags and emblems, just as the same degree of respect should be given to all members (e.g. the grandfather or the father) of a family. The members who are in support of a lower level of penalty for desecrating the regional flag and emblem feel that it is a matter of perception and principle that a distinction should be drawn between the status of the two kinds of flags and emblems since only the national flag and the national emblem can represent the dignity of the nation. The distinction thus made is also in accordance with the spirit of "one country and two systems". The Bills Committee has asked the Chief Executive's Office to re-consider the issue and to provide information with respect to overseas practice, such as the United States of America etc. Pending further information, members of the Bills Committee will decide whether it is appropriate to accept different levels of fines and years of imprisonment in respect of the different offences and whether the Bills Committee should move CSA in this regard. The Chairman of the Bills Committee will report the final decision to the meeting of the House Committee on 31 May 1997.

The colouring of the designs of the national flag/emblem and the regional flag/emblem in the Bills

14.The designs of the national flag, the national emblem, the regional flag and the regional emblem in the Bills are illustrated in black only. At the request of the Bills Committee, the Chief Executive's Office has agreed to consider to illustrate them in official colours.

The squared ink line sketch of the national flag

15.At the request of the Bills Committee, the Chief Executive's Office has agreed to add by means of CSA a squared ink line sketch of the national flag after the design for making the national flag in Schedule 1 of the National Flag and National Emblem Bill.

The usual dimensions of the national emblem for display

16.The Chief Executive's Office has agreed also to add by means of CSA a new paragraph in Schedule 2 of the National Flag and National Emblem Bill to specify the diameters of the usual dimensions of the national emblem for display or use.

Other technical amendments

17.The Chief Executive's Office has agreed to move CSAs to Clauses 3(3), 5(1), 5(4)(a), 7, 9(1) of the Chinese text and to Clause 5(1) and 5(4)(a) of the English text of the National Flag and National Emblem Bill, and to Clauses 5(3)(a) and 7 of the Chinese text and to Clause 5(3)(a) of the English text of the Regional Flag and Regional Emblem Bill, to enhance the clarity of the texts.

Committee Stage amendments

18.A set of draft Committee Stage amendments to be proposed by the Chief Executive's Office is at Appendix II.

Recommendation of the Bills Committee

19.The Bills Committee recommends that the Second Reading debate of these Bills be resumed at the Council meeting on 14 June 1997, subject to CSAs to be moved by the Chief Executive's Office.

Advice sought

20.Members' advice is sought as to whether the Second Reading debate of these Bills be resumed at the Council meeting on 14 June 1997.


Provisional Legislative Council Secretariat
27 May 1997