【アホパヨク】検討進む国旗損壊罪、東大准教授が疑問符「いまやることか？好きなアメリカにはなく、嫌いな中国にはある法律」
Japan is currently seeing a heated discussion surrounding the potential introduction of a "Flag Desecration Law" to penalize acts of damaging or defiling the national flag.
A University of Tokyo associate professor has questioned this, asking, "Is this the right time to enact a law that our favored America doesn't have, but our disliked China does?"
This has sparked intense debate online, with strong opinions from both supporters and opponents.
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Flag Desecration Law (Flag Contempt Law)
The Flag Desecration Law, or Flag Contempt Law, is legislation that penalizes acts such as intentionally damaging, defiling, or burning one's own or another country's national flag. In many countries, the flag is positioned as a symbol of national dignity and nationalism, and acts of desecration are often regarded as an insult to the nation. For example, Germany imposes penalties for insulting the flag, and similar provisions exist in France. In contrast, Japan's current Penal Code does not have a provision to punish the desecration of its own national flag; only in cases of damaging a foreign national emblem may penalties apply as an insult (Article 92 of the Penal Code).
The renewed debate over introducing this law in Japan stems from concerns ahead of the 2020 Tokyo Olympic and Paralympic Games, regarding the potential for disrespectful acts towards the flag during international events, accidental damage by foreign visitors, or flag desecration as a form of political protest. The rising trend of valuing patriotism and loyalty to the state in recent years is also said to have an influence. However, the Flag Desecration Law presents a significant conflict with freedom of expression, consistently being a subject of debate regarding "what constitutes desecration" and "to what extent flag desecration as a specific political statement should be tolerated." In particular, balancing this law's introduction with the freedom of expression guaranteed by the Constitution remains the biggest hurdle.
Freedom of Expression
Freedom of expression, explicitly stated in Article 21 of the Japanese Constitution as "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed," is one of the most important fundamental human rights of the people. It refers to the freedom to express thoughts and opinions externally, encompassing various fields such as speech, journalism, academia, and art. Flag desecration acts are linked to freedom of expression because they can be regarded not merely as acts of destruction, but as "symbolic expression" that metaphorically conveys a specific political message or intent to protest.
The most famous case in this regard is that of the United States. In the 1989 Texas v. Johnson case, the U.S. Supreme Court ruled that flag burning was a form of political expression protected by the First Amendment's guarantee of freedom of expression. This ruling garnered global attention as it demonstrated an important value in a liberal society: prioritizing an individual's right to free expression over laws protecting the "sacredness" of the flag. In Japan, when discussing the introduction of a Flag Desecration Law, the balance with this principle of "freedom of expression" is always a central point of contention, as there are concerns that legally regulating certain acts could lead to a chilling effect on the expression of thoughts and opinions.
Comparative Law (Flag Protection Legislation in the US and China)
Legal systems regarding the treatment of national flags vary significantly by country. The cases of the United States and China, in particular, are starkly contrasting and are frequently referenced in Japan's debate surrounding the introduction of a Flag Desecration Law.
United States: America is a country that places extreme importance on "freedom of expression," and its legal framework concerning flag desecration acts is exceptional globally. In the aforementioned 1989 Texas v. Johnson case and the 1990 United States v. Eichman case, the Federal Supreme Court ruled that federal laws penalizing flag burning violated the freedom of expression guaranteed by the First Amendment. Consequently, in the U.S. today, acts of burning or desecrating the national flag are, in principle, constitutional and carry no penalties. This symbolizes America's founding values, which prioritize an individual's right to freely express thoughts and opinions over protecting the flag. While hundreds of flag burning reports occur annually, these are fundamentally not processed as criminal offenses.
People's Republic of China: In contrast, flag desecration is strictly punished in China. Laws such as the National Flag Law, National Anthem Law, and National Emblem Law of the People's Republic of China stipulate that acts such as intentionally burning, damaging, defiling, abandoning, or trampling the national flag are considered an insult to national dignity and patriotism, subject to severe penalties, including imprisonment for up to three years. The Hong Kong Special Administrative Region also has similar "National Flag and National Anthem Ordinances," imposing strict penalties on violators. China strongly reflects the ideology of its state system, which aims to strengthen national unity and public patriotism through law, placing respect for national symbols above individual freedom of expression.
These comparisons pose a fundamental question for Japan, as it considers introducing a Flag Desecration Law: "Which country's values should we align with?" and "What should be prioritized?" The University of Tokyo associate professor's remark, "a law that our favored America doesn't have, but our disliked China does," precisely encapsulates this clash of values.