Desecration of Flags as a Crime in Hong Kong and Why It Is Constitutional.

A legislator of Hong Kong, Cheng Chung-tai, was found guilty of flipping national (China) and regional (Hong Kong) flags upside down shortly after a legislative session in September 2017.[1] The only issue for the Eastern Magistrates’ Court was whether flipping flags upside down amounted to “defiling” the national and regional flags.[2] The Court answered affirmatively given that “defiling” includes dishonor by action, and a reasonable person should have understood what Cheng meant by his action.[3] Indeed, flipping flags is not as serious as burning flags; Cheng was eventually fined 5,000 Hong Kong Dollar (“HKD”) for the conviction.[4]

Desecration of the national flags is a criminal offense under the National Flag and National Emblem Ordinance (“National Flag Ordinance”).[5] Hong Kong, officially Hong Kong Special Administrative Region of China (“HKSAR”), is subject to several national laws of China according to its Basic Law, which lays down the constitutional framework of HKSAR.[6] This includes the Law of the People's Republic of China on the National Flag (“National Flag Law”).[7] The National  Flag Law is aimed at “defending the dignity of the National Flag, enhancing citizens' consciousness of the State and promoting the spirit of patriotism.”[8] Desecration of the national flag, such as “publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it,”[9] is subject to imprisonment for three years and/or a 50,000 HKD fine when applies in HKSAR.[10] When Cheng, the legislator at issue, testified in the Court, he claimed that he flipped the flag to show his discontent with “patriotic acts,” which is exactly what the National Flag Law aims to promote.[11] In addition, the plain language of Legislative Council (Powers and Privileges) Ordinance suggests the free speech protection and the immunity arisen from it only extend to legislative debate in words or writing, not in action after the end of a legislative session.[12] When the case was decided in 2017, HKSAR was far from the spotlight of the world, which gives us a neutral perspective to examine this issue of desecration in the context of HKSAR.

Countries answer the question of whether desecration of a national symbol, such as a national flag and anthem, should be excepted from free speech protection differently. The Supreme Court of the United States, for example, declines to do so. In a 5-4 decision, the Court held statute or regulation aiming at “preserving the flag as a symbol of nationhood and national unity” cannot survive the strict scrutiny test for any content-based speech restriction.[13] Four Justices dissented.[14] They believed the national flag was not a simple political symbol. Throughout more than 200 years of history, millions of Americans “regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have,”[15] and “[t]he value of the flag as a symbol cannot be measured.”[16]

However, the United States’ First Amendment jurisprudence is very unique and, in some way, extreme compared with other western democratic countries’ law.[17] Other fully functioned democratic countries like Germany and Britain[18] disallow desecration of national flags or insult to the monarch besides their general protection of free speech.  The German court interprets the national flag as “an important integration device through the leading state goals it embodies.”[19] Thus, the disparagement of the flag impairs the necessary authority of the state, which justifies limitations on citizen’s right of free speech and serves as an exception to it.[20] On the other hand, Britain, whose common law system that HKSAR follows, has no law prohibiting burning or desecration of the national flag, but it has lèse-majesté provision, criminalizing contempt or insult on the sovereign, another form of a national symbol.[21]

The essence of disparities among western countries concerns the concepts of democracy or the meaning the national identity. In comparing German and American law, Judith Wise observed the difference between procedural and substantive democracies.[22] She points out that a country like the United States “rests on faith that rational discourse ensures liberty . . . [and] free speech . . . counter[s] anti-democratic speech;” Germany “prioritize[s] the long-term survival of democratic form over the political rights of the antidemocratic actors.”[23] Such difference is also demonstrated by the fact that the Unties States allows hate speech,[24] while Germany strictly prohibits it.[25] On the other hand, Professor Saunders makes the distinction between political and ethnic identities of the country. The United States is arguably a state without ethnic identity, while Germany is the opposed.[26] Despite the Native American, an American’s ethnicity is his or her country of origin;[27] the United States is only a citizen’s political identification.[28] Thus, burning or attack on the flag is viewed as political speech than attack on the nation’s people, ethnic population or culture.[29] Germany, as an ethnic nation with special history such as the election of Hitler and World War II, views the attack on a flag as the attack of its citizen’s civic responsibility.[30] This distinction further explains lèse-majesté provisions in many constitutional monarchies: people cannot attack the monarch as the head of the state, but not the Prime Minister as the head of the government.

With the distinction in mind, the National Flag Ordinance of HKSAR essentially adopts the National Flag Law with special interpretation or application under its common law system.[31] China is no doubt an ethnic nation where 91.51% of the population is Han nationality and its over-4,000-year history as a united nation. Desecration of flags can be viewed as an attack on the “consciousness of the State” and “spirit of patriotism” than a mere political speech.[32] In addition, the application of the Ordinance is within the background of HKSAR’s common law system and precedents originated from the United Kingdom. Since the United Kingdom is also viewed as  “a multiply ethnic country,”[33] the rationale behind its lèse-majesté provision may well root in HKSAR’s common law. Even applying Wise’s theory, China also values substantive than procedural due process, making it more similar to the jurisprudence of Germany.

Regardless of the eye-catching headline—criminalizing a legislator for flipping flags, the underlying National Flag Ordinance should be a constitutional, valid ordinance given the ethnic identity of China and HKSAR.

#Blogpost #HongKong #Flags #Desecration 

[1] He Shusi, Lawmaker Found Guilty of Desecrating National Flags, China Daily H.K. (Sept. 29, 2017, 10:23 PM), https://www.chinadailyhk.com/articles/129/182/13/1506694609997.html.

[2] Id.

[3] Jasmine Siu, Pro-Democracy Legislator Guilty of Desecrating Hong Kong and China Flags, South China Morning Post (Sept. 29, 2017, 3:00 PM), https://www.scmp.com/news/hong-kong/politics/article/2113379/pro-democracy-legislator-guilty-desecrating-hong-kong-and.

[4] Karen Cheung, Civic Passion Lawmaker Cheng Chung-Tai Found Guilty Of ‘Desecrating’ Flags During Legislative Session, H.K. Free Press (Sept. 29, 3:06 PM), https://www.hongkongfp.com/2017/09/29/breaking-civic-passion-lawmaker-cheng-chung-tai-found-guilty-desecrating-flags-legislative-session/.

[5] National Flag and National Emblem Ordinance, (2017) Cap. 401 (H.K.), https://www.elegislation.gov.hk/hk/capA401!en-zh-Hant-HK.pdf [hereinafter National Flag Ordinance].

[6] Xianggang Jiben Fa (The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China) pmbl., art. 1, art. 18, and annex III, https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf.

[7] Id. at annex III (including “Resolution on the . . . National Anthem and

National Flag of the People’s Republic of China”). Zhonghua Renmin Gongheguo Guoqi Fa (中华人民共和国国旗法) [Law of the People's Republic of China on the National Flag] (promulgated by Standing Comm. Nat’l People’s Cong., June 28, 1990, effective Oct. 1, 1990), 1990 Standing Comm. Nat’l People’s Cong. Gaz. 3 (China) http://www.npc.gov.cn/wxzl/gongbao/1990-06/28/content_1479136.htm, translated in Law of the People's Republic of China on the National Flag, Asian Legal Info. Inst., http://www.asianlii.org/cn/legis/cen/laws/nfl133/ (last visited Oct. 15, 2019) [hereinafter National Flag Law].

[8] National Flag Law art. 1.

[9] Id. art. 19. This article in National Flag Law is the same as the National Flag Ordinance. Compare id. and National Flag Ordinance art. 7.

[10] National Flag Ordinance art. 7.

[11] Cheung, supra note 4; see also National Flag Law art. 1.

[12] Legislative Council (Powers and Privileges) Ordinance, (2017) Cap. 382, § 3(3)-(4) (H.K.), https://www.elegislation.gov.hk/hk/cap382!en-zh-Hant-HK.pdf. See also K et al, Daozhuan Guoqi = Wuru Guoqi? Yihui Daiyishi de Yanlun Ziyou (倒轉國旗 = 侮辱國旗？議會代議士的言論自由) <Flipping the National Flag = Desecrating the National Flag? The Freedom of Speech for Legislators>, Inmediahk (Apr. 12, 2017), https://www.inmediahk.net/node/1048827.

[13] Texas v. Johnson, 491 U.S. 397, 420 (1989).

[14] Id. at 421 (Rehnquist, C.J., dissenting), 436 (Stevens, J., dissenting).

[15] Id. at 429 (Rehnquist, C.J., dissenting).

[16] Id. at 437 (Stevens, J., dissenting).

[17] See Kevin W. Saunders, Free Expression and Democracy: A Comparative Analysis 1 (2017) (“[The United States’ First Amendment] leads to protection for forms of speech that most of the rest of the world sees as undeserving of protection and perhaps even as destructive.”)

[18] According to the democratic index of 2018, both Germany and the United Kingdom are full democracies, while the United States is a “flawed democracy.” Democracy Index 2018, Economist, https://www.eiu.com/topic/democracy-index (last visited Oct. 15, 2019).

[19] Bundesverfassungsgerichts [BVerfG] (Federal Constitutional Court) Mar. 7, 1990, 81 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 278 (Ger.), translated in German Case, U. Tex. Austin Sch. L. (Dec. 1, 2005, 11:04 AM), https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=632.

[20] Id.

[21] Saunders, supra note 17, at 199.

[22] Judith Wise, Dissent and the Militant Democracy: The German Constitution and the Banning of the Free German Workers Party, 5 U. Chi. L. Sch. Roundtable 301, 305 (1998).

[23] Id.

[24] R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

[25] Grundgesetz [GG] [Basic Law] art. 1(1), 5(2), translated in https://www.btg-bestellservice.de/pdf/80201000.pdf.

[26] Saunders, supra note 17, at 182-83.

[27] Id. at 182.

[28] Id.

[29] Id. at 183.

[30] 81 BVerfGE 278 (Ger.) translated in https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=632.

[31] Xianggang Jiben Fa annex III; National Flag Ordinance art. 9.

[32] National Flag Law art.1.

[33] Saunders, supra note 17, at 199.