{"id":1861,"date":"2020-05-18T08:00:11","date_gmt":"2020-05-18T12:00:11","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/hrj\/?p=1861"},"modified":"2022-01-19T12:44:47","modified_gmt":"2022-01-19T17:44:47","slug":"the-national-anthem-law-in-china-human-rights-concerns-and-justifications","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/hrj\/2020\/05\/the-national-anthem-law-in-china-human-rights-concerns-and-justifications\/","title":{"rendered":"The National Anthem Law in China: Human Rights Concerns and Justifications"},"content":{"rendered":"

The National Anthem Law in China: Human Rights Concerns and Justifications<\/strong><\/h2>\n

Martin Kwan*<\/strong><\/p>\n

 <\/p>\n

The National Anthem Law<\/em> (the \u201cLaw\u201d) came into force in China on 1 October 2017.[1]<\/a> This article seeks to explore how Anglo-American perspectives might consider the Law to implicate potential human rights issues. The Law is a valuable illustration of the differences in values adopted by Anglo-American jurisdictions and China: The US and the UK hold the concept of individual freedom in high regard, sometimes protecting it at the expense of collective values such as patriotism. By contrast, the Law shows that China prioritizes promoting unity, patriotism, and respect for the national anthem over individual freedom.<\/p>\n

Whilst the Anglo-American laws would not be applicable in China, they provide helpful insights for evaluating why and how the Law could erode the freedom of expression and belief. The potential human rights issues may not be immediately apparent without the reference to Anglo-American observations, especially when the Law serves seemingly important and sensible aims of promoting patriotism and respect for the national anthem.<\/p>\n

A conceptual division could be made between two main types of persons who are subject to the Law, namely (1) those who are willing to accept or are open to patriotism and (2) those who are against such beliefs. For the former group, the Law poses no problem at all, as it does not go against their freedom of expression and belief. The problems lie instead with the latter group.[2]<\/a> As will be explained below, the Law is, in effect, forcing them to follow etiquette rules with the threat of criminal consequences and also promoting values (through mandatory education) which they do not agree to.<\/p>\n

Citizens are obliged to show patriotism and unity (by, e.g., following the etiquette rules) in form<\/em>, even though they do not hold such values in substance<\/em>. The obligatory nature of the Law, instead of being merely prohibitive, would arguably require additional justification.[3]<\/a> Despite the potential limitations on their freedoms, it is submitted that the Law is justifiable, because it serves the vital constitutional need of ensuring unity and stability. \u201cUnity,\u201d \u201cstability,\u201d and \u201cdevelopment\u201d have been noted as \u201cChina\u2019s core interests that \u2018brook no violation\u2019\u201d.[4]<\/a><\/p>\n

 <\/p>\n

The National Anthem Law<\/strong><\/h4>\n
The Law<\/em><\/strong><\/h5>\n

Art. 1 of the Law states its aims as the following:<\/p>\n

\u201c\u2026to preserve the dignity of the national anthem, regulate the way the national anthem is played, sung, broadcast, or otherwise used, enhance citizen awareness of the People\u2019s Republic of China, promote patriotism<\/em>, and cultivate and live by the core socialist values<\/em>.\u201d (emphasis added)<\/p>\n

This article focuses mainly on two provisions. First, Art. 7 of the Law requires that when the national anthem is played and sung, the attendee \u201cis to stand and deport themselves with dignity.\u201d Art. 4 of the Law lists a broad number of situations in which the national song must be played and sung. Apart from national events, these include \u201cmajor sporting events\u201d and \u201cother suitable occasions.\u201d[5]<\/a> \u00a0Insulting the national anthem \u201cin any manner\u201d may lead to a warning or detainment of not more 15 days.[6]<\/a> It is uncertain whether not standing (i.e. not complying with Art. 7) would amount to an insult.<\/p>\n

Second, the Law also requires that the \u201cnational anthem shall be included in the curricula for primary and secondary schools,\u201d as \u201can important part of education in patriotism.\u201d[7]<\/a> Notably, one of the aims is to ensure students \u201cobey the etiquette for playing and singing the national anthem.\u201d[8]<\/a><\/p>\n

There are many other provisions that are generally considered to be uncontroversial. For example, the national anthem shall not be used during private funeral events or for commercial advertisements.[9]<\/a> There will be punishment for deliberately altering the lyrics or music of the national anthem, as well as for playing or singing the national anthem in a deliberately distorted or disrespectful manner.[10]<\/a><\/p>\n

 <\/p>\n

March of the Volunteers: A patriotic song<\/em><\/strong><\/h5>\n

In order to evaluate the human rights implications, it is necessary to know more about the national anthem, March of the Volunteers<\/em>.[11]<\/a> \u201cA national anthem is normally a song of praise… However, much to the contrary, the theme of the PRC\u2019s national anthem is rebellion, salvation, and national survival.\u201d[12]<\/a><\/p>\n

It is by nature a \u201cpatriotic song.\u201d[13]<\/a> With a historical origin as a piece of war music, it was originally written by the \u201cCommunist musician from Yunnan,\u201d Nie Er.[14]<\/a> The song has been described as \u201cpowerful and emotion-charged\u201d[15]<\/a> and \u201cfiery.\u201d[16]<\/a><\/p>\n

 <\/p>\n

Human Rights Concerns<\/strong><\/h4>\n

Conceptually, the Law covers two settings. The first one involves non-school situations where attendees have to follow certain etiquette, as governed by Art. 7 of the Law. For ease of reference and distinction, the subjects governed by Art. 7 will be termed as \u201cnon-students,\u201d although Art. 7 technically applies to students as well.<\/p>\n

The Law also covers education and the school setting, pursuant to Art. 11. If students and non-students are compelled to follow the etiquette or to sing the national anthem by the threat of punishments, contrary to their religious or political beliefs, it could be argued as a disguised form of persecution based on thoughts.[17]<\/a><\/p>\n

 <\/p>\n

The involved rights<\/em><\/strong>: The case law from the US and the UK<\/em><\/strong><\/h5>\n

US and UK cases together demonstrate that Western courts highly regard and vigorously protect an individual\u2019s freedoms of expression, conscience, belief, and religion. This stands in contrast to the Chinese approach.<\/p>\n

 <\/p>\n

    \n
  1. The school setting: The insights from US case law<\/em><\/li>\n<\/ol>\n

    In the US, there is no national or federal legislation that is applicable to all states which governs the national anthem in a school setting.[18]<\/a> However, certain states have their own legislation that imposes certain behavioral requirements or requests local schools to form their own policies.<\/p>\n

    As derived from the US case law, there are two contested types of patriotic activities in schools. The first involves the national anthem, and the second concerns the Pledge of Allegiance. The latter cases are also relevant as they illustrate the application and the pertinence of the freedom of expression and freedom of religion.<\/p>\n

    In Sheldon v. Fannin<\/em>, the Arizona Revised Statutes required schools to implement \u201cpatriotic exercises.\u201d[19]<\/a> Accordingly, the State Board of Education issued a policy to require students to stand for the playing of the National Anthem.[20]<\/a><\/p>\n

    The student-plaintiffs were suspended from school for their refusal to stand for the singing of the National Anthem. Plaintiffs were Jehovah\u2019s Witnesses and they refused due to religious reasons. In particular, their refusal to stand \u201cis claimed to be found in the refusal of the three Hebrew children Shadrach, Meshach and Abednego, to bow down at the sound of musical instruments playing patriotic-religious music throughout the land at the order of King Nebuchadnezzar of ancient Babylon. [Daniel 3:13-28.].\u201d[21]<\/a><\/p>\n

    It was held that the students\u2019 refusal was protected as a form of freedom of expression and religion, and they could not be coerced to stand.[22]<\/a> An injunction was granted to permanently prevent the school from punishing student-plaintiffs who refuse to stand.[23]<\/a><\/p>\n

    The refusal to stand is not only protected for religious causes. A student also has the right to refuse for purely political reasons.[24]<\/a> In Lipp v. Morris<\/em>, it was held that \u201cstanding at respectful attention\u201d is a form of \u201cimplicit expression,\u201d and it is unconstitutional to force students to do so.[25]<\/a> In Banks v. Board of Public Instruction of Dade County<\/em>, it was stressed that the \u201cright to differ and express one\u2019s opinions, to fully vent his First Amendment rights, even to the extent of exhibiting disrespect<\/em> for our flag and country by refusing to stand<\/em> and participate in the pledge of allegiance cannot be suppressed by the imposition of suspensions.\u201d[26]<\/a><\/p>\n

    Moreover, the US Supreme Court has forcefully said that \u201c[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.\u201d[27]<\/a> Therefore, it cannot be argued that students have voluntarily abandoned their freedoms and have submitted themselves to the relevant laws merely by attending school.<\/p>\n

     <\/p>\n

      \n
    1. Not limited to the school setting: The insights from the UK case law<\/em><\/li>\n<\/ol>\n

      The above-mentioned rights and freedom are not only applicable in the school setting. In Lee v Ashers Baking Company Ltd & Ors <\/em>(Northern Ireland)<\/em>, the Supreme Court in the UK recognized that these rights and freedoms are applicable generally, irrespective of the setting (the English cases are not about national anthems and the UK does not have a law on national anthem). [28]<\/a> It was found that \u201cobliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights\u201d of the European Convention on Human Rights (on freedom of thought, conscience and religion).[29]<\/a> Furthermore, the \u201cfreedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention\u201d (concerning the freedom of speech).[30]<\/a> \u201cNobody should be forced to have or express a political opinion in which he does not believe.\u201d[31]<\/a><\/p>\n

      However, it is conceded that the human rights issues are less potent in non-school settings. This is because non-students are, most likely, free to choose whether to attend the occasions or events where the national anthem is played. By contrast, it is mandatory for the students to attend schools and follow the curriculum as instructed. Nevertheless, given the significance of the potential restriction on the relevant rights and freedoms, it remains important to consider the human rights implications of Art. 11 of the Law.<\/p>\n

       <\/p>\n

      Applying the US and the UK insights to the Law<\/em><\/strong><\/h5>\n

      This section evaluates the potential human rights problems with the Law, with the aid of Anglo-American experiences. Even though the Anglo-American laws are not applicable in China, they do demonstrate why it could be normatively problematic to coerce a person into going against his\/her beliefs.<\/p>\n

      As mentioned above, the Chinese National Anthem is a song that touches upon the concepts of war, patriotism, and resistance.[32]<\/a> These concepts may be outdated to the extent that they are inconsistent with modern political and cultural thoughts and beliefs.[33]<\/a> Additionally, there may be legitimate reasons for certain persons (e.g. those who hold other nationalities) not to sing a patriotic song of another country.<\/p>\n

      As a political belief, patriotism certainly has its own virtues and beauty, such as promoting unity. However, it is not necessarily a notion blindly accepted by everyone. Some have noted that patriotism can be \u201cdangerous,\u201d as \u201cit serves to define the nation against its foreign rivals and foes, whipping up warlike sentiments against them.\u201d[34]<\/a> Patriotism can also burden \u201cminority conscience by enforced homogeneity\u201d and could \u201cshort-circuit the critical faculties and undercut social rationality.\u201d[35]<\/a> History reveals that \u201cpatriotic love has served a range of unwise causes: foolish and\/or unjust wars, racial or ethnic hatred, [and] religious exclusion.\u201d[36]<\/a><\/p>\n

      It is also equally possible that these notions may not be compatible with certain religions that emphasize other sentiments such as love and peace. Phrased differently, there may be legitimate reasons that a person may refuse to sing or stand for the national anthem.<\/p>\n

      This is exactly why the freedoms of expression, conscience, religion, and belief must be protected. Promoting patriotism may not justify coercing non-students to unwillingly stand and students to sing, when they have legitimate reasons for refusing to do so. \u201cPatriotism and respectful dissent are not incompatible.\u201d[37]<\/a> The US Supreme Court has suggested that government ought not to be excessively prescriptive, holding that \u201cno official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.\u201d[38]<\/a><\/p>\n

      In the US, the sincerity of the political or religious belief should not be questioned by the courts.[39]<\/a> Equally, the court should not question whether the belief is \u201creasonable, or wise, or even sensible.\u201d[40]<\/a> This approach is necessary in order to afford full protection to the freedom of beliefs, \u201cno matter how unfounded or even ludicrous the professed belief may seem to others.\u201d[41]<\/a> This will also \u201cprevent discrimination against belief that seem incredible, or practices which seem strange viewed from the perspective of familiar religious practices.\u201d[42]<\/a><\/p>\n

      Apart from promoting patriotism, the Law has other objectives, but they may not be adequate justifications for limiting other rights. Promoting respect for the Chinese national anthem does not rationalize coercing students and non-students to stand for and sing that anthem.[43]<\/a> There is a clear distinction between insulting the national anthem and refusing to express a view. Standing for or singing the national anthem is not the only way to show respect. Even if a person (e.g. of other nationality) refuses to do so, he or she may nonetheless remain respectful. Besides, it has been argued that upholding the freedom of expression would better promote trust and respect for a country:<\/p>\n

      \u201cWhile we do not share plaintiff’s resistance to pledging allegiance to this nation, his reservations of belief must be protected<\/em>. In time<\/em>, perhaps, he will recognize that such protection is sound ground for a firmer trust in his country<\/em>.\u201d[44]<\/a><\/p>\n

      Similarly, the anthem\u2019s educational value in terms of teaching history is not an adequate justification either.[45]<\/a> This is because one can learn Chinese history without being forced through the requirement to stand for or to sing the anthem.<\/p>\n

       <\/p>\n

      The freedoms of expression, conscience and religion and their extent of protection in China<\/em><\/strong><\/h5>\n

      After establishing the relevance of the human rights concerns to the Law, it is necessary to evaluate whether the relevant freedoms could be protected in China. Conceptually, there are two important bases of human rights protection in China, namely (1) the Constitution of the People\u2019s Republic of China (the \u201cConstitution\u201d); and (2) China\u2019s treaty obligations.<\/p>\n

      Art. 35 and Art. 36 of the Constitution recognize the freedom of speech and the freedom of religious belief of citizens of the People\u2019s Republic of China, respectively. However, these provisions are not useful for two reasons.<\/p>\n

      First, Sarah Cook notes that \u201cbecause the Constitution in China has thus far not been justiciable in Chinese courts, there exist no legal mechanisms for protecting citizens’ rights guaranteed therein.\u201d[46]<\/a><\/p>\n

      Second, even if the matter were justiciable in courts, Art. 52 provides that it is the \u201cduty of citizens of the People\u2019s Republic of China to safeguard the unification of the country and the unity of all its nationalities.\u201d[47]<\/a> Notably, Art. 51 provides that \u201cin exercising their freedoms and rights,\u201d citizens \u201cmay not infringe upon the interests of the state, of society or of the collective.\u201d[48]<\/a> It is also the duty of citizens to safeguard the \u201chonour and interests of the motherland.\u201d[49]<\/a> In other words, there is a strong and sound constitutional basis for the enactment of the Law and the limitation of the relevant freedoms.<\/p>\n

      Art. 52 is a vital provision because it illustrates the significance of unity to China. It is noteworthy that the notion of \u201cunity\u201d is repeated multiple times in various provisions in the Constitution, which further reinforces its paramountcy.[50]<\/a> Even though the Law has human rights issues, it could be argued that the Law is justifiable because it helps ensure unity by promoting patriotism and respect for the national anthem. In other words, Art. 52 provides a strong constitutional basis for overriding individuals\u2019 freedoms for the benefit of collective interests in the form of unity. As provided in Art. 52, all citizens have the duty to ensure national unity. Therefore, this justifies the requirement to show respect and patriotism in form<\/em> at the very least.<\/p>\n

      In terms of treaty obligations, China has not yet ratified the International Covenant on Civil and Political Rights, despite being a signatory.[51]<\/a> Nevertheless, China ratified the International Covenant on Economic, Social and Cultural Rights (\u201cICESCR\u201d) in 2001.[52]<\/a> Art. 13 of the ICESCR provides that education shall \u201cpromote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups.\u201d One could argue that a war song containing notions of resistance may not be compatible with this provision. Moreover, one might contend that schools should allow students to refuse, if they have legitimate reasons that are racially, ethnically or religiously based.<\/p>\n

      China has also largely ratified the Convention on the Rights of the Child (\u201cCRC\u201d), which became effective in 1992. [53]<\/a> Art. 2 of the CRC provides that children should be \u201cprotected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions.\u201d[54]<\/a> The child\u2019s \u201cfreedom of thought, conscience and religion\u201d should be respected.[55]<\/a> \u00a0In addition, children enjoy the \u201cright to freedom of expression.\u201d[56]<\/a> These freedoms can be limited for the protection of public order, or of public health or morals.[57]<\/a> However, pulling from the US\u2019 experience, it can hardly be the case that a respectful refusal to stand can cause any disruption.[58]<\/a><\/p>\n

      Yet, these treaty obligations are not useful either. For the CRC, it has been noted that \u201c[w]hile the CRC is a legally binding document, it does not include coercive measures such as international investigations of human rights violations, enforcement of the Convention through domestic legal processes.\u201d[59]<\/a> Furthermore, Naftali notes that whilst the Protection of Minors Law<\/em> in China has incorporated some of the CRC\u2019s provisions, it does not implement the protections of these freedoms either.[60]<\/a> In any event, these obligations, which focus on protecting individuals\u2019 freedoms, may not be always be compatible with the apparently more important objectives of the National Anthem Law and the Constitution, namely to promote patriotism, collectivism, and unity.<\/p>\n

       <\/p>\n

      Conclusion<\/strong><\/h4>\n

      Promoting patriotism and respect for the national anthem are without doubt vital and legitimate aims. Just as certain US states have legislated on these matters, China is not the first country to enact laws in this arena.[61]<\/a> Despite the fact that the discussed jurisdictions all recognize the freedoms of expression and religion, they are accorded with different extents of emphasis and protection. There is a Chinese idiom that describes the situation well: \u201cOne cannot have both the fish and the bear\u2019s paw,\u201d which corresponds to the English saying that \u201cyou can\u2019t have your cake and eat it too.\u201d The value judgement involved in this case is particularly difficult, because the aims of promoting patriotism and respect (more about collectivism), and protecting freedoms (more about individualism), are both very cogent.<\/p>\n

      In the US, the maximum that a law can legitimately achieve is to promote<\/em> patriotism (as students cannot be coerced); whilst in China, the Law goes beyond mere promotion, and it further demands the demonstration of patriotism, stability, and unity in form<\/em>. The issue is whether it is normatively justifiable to require a dissident to do so.<\/p>\n

      Arguably, the Anglo-American jurisdictions not only uphold freedoms, but they have actually done more: in effect, they are protecting diversity in political beliefs. The US courts probably believe that forcing students to follow the etiquette will not make them feel patriotic.[62]<\/a> The respect for diversity is much needed in their pluralistic societies, especially given that the US is a country with a long history of immigrant influence.[63]<\/a> This marks a contrast with China.<\/p>\n

      Despite the apparent incompatibility with human rights, it is submitted that the Law is justifiable. Art. 52 of the Constitution provides for the constitutional mandate to demand that citizens follow the requirements in order to achieve stability and unity. The same constitutional backing cannot be found in Anglo-American jurisdictions, which explains the uniquely prescriptive nature of the Law. It is also arguable that Art. 52 provides citizens with a collective expectation, if not also a right, to a united China. Unlike other cultures and jurisdictions, the Chinese community needs stability and unity, judging from historical, cultural and political standpoints. From the historical perspective, China experienced national divisions, which caused many problems, such as civil wars and social chaos.[64]<\/a> \u201cChinese everywhere quite rationally fear the nation falling apart.\u201d[65]<\/a> Culturally, the \u201cemphasis on stability and social harmony has clear overtones of Confucianism,\u201d which is a traditional Chinese belief.[66]<\/a> Politically, it was commented that:<\/p>\n

      \u201c[S]ince the beginning of the twenty-first century, Chinese leaders have increasingly stressed the importance of social harmony and stability… The CCP [Chinese Communist Party] leadership believes that rising prosperity depends on stability, which in turn requires that nobody should rock the boat too much.\u201d[67]<\/a><\/p>\n

      This Law should not be misunderstood as suggesting that China is completely against diversity in all matters.[68]<\/a> Instead, it simply shows that when it comes to national stability, unity comes first. Whilst the Law would imply that there is very little room for one to be a dissident on this national matter, whether this is ideologically ideal would be another and a subjective question.<\/p>\n

       <\/p>\n

      \n

      * martinkwan@protonmail.ch<\/a><\/p>\n

      [1]<\/a> National Anthem Law of the People\u2019s Republic of China<\/em> (\u201cThe Law\u201d), art 16.<\/p>\n

      [2]<\/a> It is helpful to clarify that just because a person does not subscribe to patriotism or does not want to follow the etiquette, it does not necessarily mean that he\/she intends to harm the country. Instead, it simply means that he\/she does not want to follow those values or requirements for their own reasons. If they do harm the country, it will be governed by other laws. For example, that may be covered by Art. 103 of the Criminal Law of the People\u2019s Republic of China, which provides for the criminal offence of \u201csplitting the State or undermining unity of the country.\u201d<\/p>\n

      [3]<\/a> Whether the Law can effectively change a person\u2019s values and beliefs by imposing formal or behavioral requirements is a socio-psychological question beyond the scope of this article.<\/p>\n

      [4]<\/a> Czeslaw Tubilewicz, Muddling authoritarianism, in CRITICAL ISSUES IN CONTEMPORARY CHINA: UNITY, STABILITY AND DEVELOPMENT 1, 2 (Czeslaw Tubilewicz ed., 2017) (citing former State Councilor of China Dai Bingguo). The recent Amendment to the Constitution of the People\u2019s Republic of China <\/em>(Adopted by the 1st Session of the 13th National People\u2019s Congress on March 11, 2018) reveals that China also cares very much about \u201charmony,\u201d which is a term newly and repeatedly inserted.<\/p>\n

      [5]<\/a> The Law<\/em>, art 4.<\/p>\n

      [6]<\/a> The Law<\/em>, art 15.<\/p>\n

      [7]<\/a> The Law<\/em>, art 11.<\/p>\n

      [8]<\/a> The Law<\/em>, art 11.<\/p>\n

      [9]<\/a> The Law<\/em>, art 8.<\/p>\n

      [10]<\/a> The Law<\/em>, art 15.<\/p>\n

      [11]<\/a> The Law<\/em>, art 2.<\/p>\n

      [12]<\/a> ZHENG WANG, NEVER FORGET NATIONAL HUMILIATION: HISTORICAL MEMORY IN CHINESE POLITICS AND FOREIGN RELATIONS 89 (2012).<\/p>\n

      [13]<\/a> Chang-Tai Hung, The Politics of Songs: Myths and Symbols in the Chinese Communist War Music, 1937-1949<\/em>, 30(4) MOD. ASIAN STUD. 901, 901 (1996). See also<\/em> Wang, supra <\/em>note 12, 90 (noting that it was \u2018written as a patriotic tune\u2019).<\/p>\n

      [14]<\/a> Hung, supra<\/em> note 13, at 901-02 (The song \u201cevoked a sense of popular unity, a subject that was central to Communist war music\u201d). Wai-Chung Ho, Social change and nationalism in China\u2019s popular songs, 31(4) SOC. HIS. 435, 441 (2006) (\u201cIt depicted Chinese intellectuals marching bravely to the front in the War of Resistance against Japan during the Second World War. The song was very popular at that time, and on 26 September 1949 it was selected as China\u2019s national anthem.\u201d). Hung, supra<\/em> note 13, at 902 (\u201cBut the Communists were not interested in Nie Er\u2019s piece only as a patriotic melody…they refashioned it and other war songs into an ode to the socialist revolution and an attack against the Nationalist (Guomindang, GMD) government\u201d).<\/p>\n

      [15]<\/a> Hung, supra<\/em> note 13, at 901.<\/p>\n

      [16]<\/a> Id.<\/em> at 902.<\/p>\n

      [17]<\/a> Holden v. Board of Ed. of the City of Elizabeth<\/em>, 46 N.J. 281, 285-86 (1966).<\/p>\n

      [18]<\/a> Sheldon v. Fannin <\/em>221 F.Supp. 766, 774 (D. Ariz. 1963) (appeal dismissed, 372 U.S. 228) (In \u201cpublic or private place, there would be not the slightest doubt that the plaintiffs were free to participate or not as they choose. Every citizen is free to stand or sit, sing or remain silent, when the Star Spangled Banner is played.\u201d).<\/p>\n

      [19]<\/a> Id.<\/em> at 769.<\/p>\n

      [20]<\/a> Id.<\/em> at 769.<\/p>\n

      [21]<\/a> Id.<\/em> at 768.<\/p>\n

      [22]<\/a> Id.<\/em> at 775. Holloman v. Harland<\/em>, 370 F.3d 1251, 1269 (11th<\/sup> Cir. 2004) (There cannot be other types of pressure which deters students from exercising their rights, such as verbal censure). Circle School v. Pappert<\/em>, 381 F.3d 172, 181-82 (3d Cir. 2004) (Notifying parents of students who refused to recite the Pledge will \u201cchill speech by providing a disincentive\u201d to the students, and is therefore unconstitutional.). Applying these cases by analogy, it would be unduly limiting the students\u2019 freedom of speech if they are punished for refusing to stand for or to sing the national anthem.<\/p>\n

      [23]<\/a> Sheldon<\/em>, supra<\/em> note 18, at 775.<\/p>\n

      [24]<\/a> The following cases involves students who refused to stand for Pledge for political reasons only. Goetz v. Ansell<\/em>, 477 F.2d 636, 637-38 (2d Cir. 1973) (holding that students have the right to remain seated<\/em> during the pledge of allegiance and they cannot be required to leave the room); Frazier v. Alexandre<\/em>, 434 F. Supp. 2d 1350, 1363 (S.D. Fla. 2006) (students have a constitutional right to remain seated during the Pledge); Rabideau v. Beekmantown Central School District<\/em>, 89 F. Supp. 2d 263, 267 (N.D.N.Y. 2000) (student cannot be required to stand <\/em>or be punished for not doing so) (\u201cIt is well established that a school may not require its students to stand <\/em>for or recite the Pledge of Allegiance or punish any student for his\/her failure to do so\u201d); Frain v. Baron<\/em>, 307 F.Supp. 27, 33-34 (E.D.N.Y. 1969) (cannot treat \u201cany student who refuses for reasons of conscience<\/em> to participate in the Pledge in any different way from those who participate\u201d).<\/p>\n

      [25]<\/a> 579 F.2d 834, 836 (3d Cir. 1978). It is noteworthy that the Court did not even inquire the reasons, be it political or religious, for doing so. In Banks v. Board of Public Instruction of Dade County<\/em> 314 F.Supp. 285, 295 (S.D. Fla-1970), it was held that the \u201crefusal to stand\u201d constitutes an expression for the purposes of freedom of religion and freedom of expression, and is considered as \u201cakin to pure speech.\u201d See also<\/em> Robert M. Schwartz and Wayne Oppito, Courts Have Affirmed the Rights of Students to Refuse to Pledge the Flag, in STUDENT RIGHTS 17, 23 (Avery Elizabeth Hurt ed., 2018).<\/p>\n

      [26]<\/a> Banks<\/em>, supra<\/em> note 25, at 296 (emphasis added).<\/p>\n

      [27]<\/a> Tinker v. Des Moines Independent Community School<\/em> Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736 (1969).<\/p>\n

      [28]<\/a> [2018] UKSC 49 at [53] (per Lady Hale, with whom the other judges agree) (The Supreme Court noted that the same principles on \u201ccompelled speech,\u201d as provided in the US as in West Virginia State Board<\/em> of Education v<\/em>. Barnette<\/em>, 319 U.S. 624<\/em> (1943), apply in the UK).<\/p>\n

      [29]<\/a> Id.<\/em> at [50]. See also<\/em> [51] (where the Supreme Court cited Commodore of the Royal Bahamas Defence Force v Laramore<\/em> [2017] UKPC 13; [2017] 1 WLR 2752).<\/p>\n

      [30]<\/a> Id.<\/em> at [52] (\u201cThe right to freedom of expression does not in terms include the right not to express an opinion but it has long been held that it does.\u201d).<\/p>\n

      [31]<\/a> RT (Zimbabwe) v Secretary of State for the Home Department<\/em> [2012] UKSC 38; [2013] 1 AC 152 [42]; Ashers<\/em>, supra <\/em>note 28, at [53].<\/p>\n

      [32]<\/a> Wing-Wah Law and Wai-Chung Ho, Values Education in Hong Kong School Music Education: A Sociological Critique, 52(1) BR. J. EDUC. STUD. 65, 75 (2004) (The \u201canthem encourages resistance against not only foreign invasion but also an oppressive regime.\u201d).<\/p>\n

      [33]<\/a> Id.<\/em> at 75 (For example, the \u201canthem\u2019s emphatic distinction between \u2018enemy\u2019 and \u2018slaves\u2019 is not necessarily healthy to nation building and social stability. In the PRC, who are the enemies: totalitarian leaders, corrupt officials, \u2018red capitalists,\u2019 new tycoons …? Who are the slaves: the exploited, those who live under the poverty line\u2026?\u201d).<\/p>\n

      [34]<\/a> Martha C. Nussbaum, Teaching Patriotism: Love and Critical Freedom, 79(1) U. CHI. L. REV. 213, 215 (2012).<\/p>\n

      [35]<\/a> Id.<\/em> at 216.<\/p>\n

      [36]<\/a> Id.<\/em> at 223.<\/p>\n

      [37]<\/a> Id.<\/em> at 228.<\/p>\n

      [38]<\/a> Barnette<\/em>, <\/em>supra<\/em> note <\/em>28, at 642.<\/p>\n

      [39]<\/a> Banks<\/em>, <\/em>supra<\/em> note <\/em>25, at 296; Sheldon<\/em>, <\/em>supra<\/em> note <\/em>18, at 775.<\/p>\n

      [40]<\/a> Sheldon<\/em>, <\/em>supra<\/em> note <\/em>18, at 775; Banks<\/em>, <\/em>supra<\/em> note <\/em>25, at 296.<\/p>\n

      [41]<\/a> Sheldon<\/em>, <\/em>supra<\/em> note <\/em>18, at 775; Banks<\/em>, <\/em>supra<\/em> note <\/em>25, at 296.<\/p>\n

      [42]<\/a> Stephen Boyan, Jr., Defining Religion in Operational and Institutional Terms, 116(3) U. PA. L. REV. 479, 497 (1968).<\/p>\n

      [43]<\/a> Art 1 of the Law states that one of the purposes is to \u201cpreserve the dignity of the national anthem.\u201d<\/p>\n

      [44]<\/a> Goetz v. Ansell<\/em>, supra <\/em>note 24, at 639 (emphasis added).<\/p>\n

      [45]<\/a> Art 1 of the Law states that one of the purposes is to \u2018enhance citizen awareness of the People\u2019s Republic of China\u2019. Law and Ho, supra <\/em>note 32, at 74 (\u201cThe PRC\u2019s national anthem can be used to teach the history of 20th<\/sup> century China\u201d).<\/p>\n

      [46]<\/a> Sarah Cook, Freedom of religion and belief, in HANDBOOK ON HUMAN RIGHTS IN CHINA 323, 326 (Sarah Biddulph and Joshua Rosenzweig eds., 2019).<\/p>\n

      [47]<\/a> Constitution<\/em>, art 52.<\/p>\n

      [48]<\/a> Constitution<\/em>, art 51.<\/p>\n

      [49]<\/a> Constitution<\/em>, art 54.<\/p>\n

      [50]<\/a> For example, in the Preamble of the Constitution<\/em>, it emphasized on the need to \u201cunite all forces that can be united\u201d. Moreover, Art. 4 of the Constitution <\/em>provides the state has to ensure the unity of all China\u2019s nationalities.<\/p>\n

      [51]<\/a> Cook, supra<\/em> note 46, at 325.<\/p>\n

      [52]<\/a> Id.<\/em> at 325 (Despite ratification, \u201cthe Chinese government has come under repeated criticism by the treaty bodies for its failure to uphold obligations related to religious freedom and belief.\u201d). See also <\/em>XIAOBING LI, CIVIL LIBERTIES IN CHINA, xxvii (2010).<\/p>\n

      [53]<\/a> Orna Naftali, Rights of children and youth in China: protection, provision and participation, in HANDBOOK ON HUMAN RIGHTS IN CHINA 273, 277 (Sarah Biddulph and Joshua Rosenzweig eds., 2019).<\/p>\n

      [54]<\/a> CRC<\/em>, art 1 (A \u2018child\u2019 is defined to be person below 18 years of age).<\/p>\n

      [55]<\/a> CRC<\/em>, art 14(1).<\/p>\n

      [56]<\/a> CRC<\/em>, art 13(1).<\/p>\n

      [57]<\/a> CRC<\/em>, art 13(2)(b), 14(3).<\/p>\n

      [58]<\/a> See e.g.<\/em> Sheldon<\/em>, supra<\/em> note 18, at 775; Banks<\/em>, supra<\/em> note 25, at 295.<\/p>\n

      [59]<\/a> Naftali, supra<\/em> note 53, at 278.<\/p>\n

      [60]<\/a> Id.<\/em> at 278.<\/p>\n

      [61]<\/a> Kang-chung Ng and Laurie Chan, Explainer: how do countries around the world foster respect for their national anthem?<\/em>, SOUTH CHINA MORNING POST, (Nov. 9, 2017), https:\/\/www.scmp.com\/news\/hong-kong\/politics\/article\/2118933\/explainer-how-do-co1untries-around-world-foster-respect-their.<\/p>\n

      [62]<\/a> Judging from the tenor of the quote from Goetz <\/em>at note 24, it seems that the judge believed that respecting the diversity in beliefs and upholding the freedoms would be a more effective way to instil the relevant values.<\/p>\n

      [63]<\/a> AMERICA\u2019S CHANGING NEIGHBORHOODS: AN EXPLORATION OF DIVERSITY THROUGH PLACES 50 (Reed Ueda ed., 2017) (\u201cThe United States qualified as the greatest immigration country in world history not only in its national ideological commitment to serving as a haven of opportunity to the foreign born, but also in terms of the volume of immigration it received and the number of ethnic groups it accommodated.\u201d).<\/p>\n

      [64]<\/a> Edward Friedman, Still Building the Nation: The Causes and Consequences of China\u2019s Patriotic Fervor, in CHINESE POLITICAL CULTURE: 1989-2000 103, 119 (Shiping Hua ed., 2001).<\/p>\n

      [65]<\/a> Id. <\/em>at 119.<\/p>\n

      [66]<\/a> Yinan Li and Colin MacKerras, Social Change, in CRITICAL ISSUES IN CONTEMPORARY CHINA: UNITY, STABILITY AND DEVELOPMENT 213, 213 (Czeslaw Tubilewicz ed., 2017); LINDA BENSON, CHINA SINCE 1949 138 (2011)<\/p>\n

      [67]<\/a> Li and MacKerras, supra <\/em>note 66, at 213. Gerald Postiglione, Education and Cultural Diversity in Multiethnic China, in MINORITY EDUCATION IN CHINA: BALANCING UNITY AND DIVERSITY IN AN ERA OF CRITICAL PLURALISM (James Leibold and Yangbin Chen eds., 2014) 27, 27 (\u201cIn short, ethnic unity and national integration remain matters of national urgency.\u201d). China cares very much about unity and it has been commented that \u201c[i]ssues which challenge China\u2019s sovereignty and unity will arouse China\u2019s hostility.\u201d: LEE KUAN YEW, LEE KUAN YEW: THE GRAND MASTER\u2019S INSIGHTS ON CHINA, THE UNITED STATES, AND THE WORLD 44 (Graham Allison, Robert D. Blackwill and Ali Wyne eds., 2013). Lee further commented that \u201cChina is not going to become a liberal democracy; if it did, it would collapse\u201d: LEE at 13.<\/p>\n

      [68]<\/a> TONY SAICH, GOVERNANCE AND POLITICS OF CHINA 2 (2015) (Saich describes China as a \u201cland of diversity\u201d and notes that China is seeking \u201cunity within diversity\u201d.). Comparable stance is taken in some other Asian countries. For example, in Singapore, the former Prime Minister commented that \u201c[d]iversity of race, language and culture is part of the richness of Singapore. But in one thing we cannot afford diversity-diversity of loyalty.\u201d: ALEX JOSEY, LEE KUAN YEW: THE CRUCIAL YEARS 115 (2012).<\/p>\n","protected":false},"excerpt":{"rendered":"

      The National Anthem Law in China: Human Rights Concerns and Justifications Martin Kwan*   The National Anthem Law (the \u201cLaw\u201d) came into force in China on 1 October 2017.[1] This article seeks to explore how Anglo-American perspectives might consider the Law to implicate potential human rights issues. The Law is a valuable illustration of the […]<\/p>\n","protected":false},"author":101946,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1861","post","type-post","status-publish","format-standard","hentry","category-online-journal"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts\/1861","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/users\/101946"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/comments?post=1861"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts\/1861\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/media?parent=1861"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/categories?post=1861"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/tags?post=1861"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}