Japan’s flag desecration law is expected to take effect as early as August. While the law is seen as a significant step toward protecting the Japanese flag as a national symbol, legal experts have raised concerns about how it will be applied in practice.
Key issues include establishing clear standards for interpreting the law and balancing its enforcement with the constitutionally protected right to freedom of expression.
Acts Subject to Punishment
Under the new law, anyone who “publicly damages, removes or defaces the national flag” in a manner that “causes significant discomfort or feelings of hatred among others” may face up to 2 years in prison or a fine of up to ¥200,000 (about $1,200).
During Diet deliberations, lawmakers cited examples such as tearing down and burning a national flag displayed in front of a municipal government building.
The law applies only to physical objects that are recognized as national flags under common social understanding and that meet legally defined standards, such as the official 2:3 aspect ratio. Therefore, deliberately throwing a golf ball bearing the Hinomaru design into a pond would not satisfy the legal requirements for prosecution.
Will Prosecutions Be Upheld?
Even if an act meets the legal requirements and prosecutors file charges, courts may still dismiss a case under certain circumstances. For example, a defendant could argue that there was no other way to express their beliefs or opinions.
Freedom of expression, however, is not absolute under the Constitution. Acts carried out in the name of political or artistic expression may still result in criminal liability if they are deemed socially unacceptable.
The Liberal Democratic Party and other lawmakers who submitted the bill have said each case will be judged based on all relevant circumstances.
Masanori Hatoko, a lawyer and former judge at the Tokyo High Court, said: “This concerns an area closely related to freedom of expression. Investigative authorities will need to carefully determine whether an act is sufficiently unlawful to warrant criminal punishment in the first place.”
If a defendant charged under the flag desecration law argues that the act was intended to express their views, “judges will face a difficult decision,” he added.
Under Japan’s criminal justice system, when a single act violates multiple laws, punishment is generally based on the offense carrying the most severe statutory penalty.
If someone tears up or burns a national flag, prosecutors may instead pursue charges under offenses carrying harsher penalties. These include property damage, punishable by up to 3 years in prison or a fine of up to ¥300,000 (about $1,800) and arson of property other than a building, which carries a prison sentence of 1 to 10 years. If that occurs, the practical significance of the new law could be diminished.
Can Private Citizens Make Arrests?
The issue of private arrests may also require further debate. Under Japanese law, private citizens may detain a person caught in the act of committing a crime without an arrest warrant before handing the suspect over to police.
However, because the new law does not clearly define what conduct falls within its scope, questions remain about when such arrests would be appropriate.
Hisashi Sonoda, professor emeritus of criminal law at Konan University, said: “The new law does not clearly define what constitutes a ‘method that causes discomfort or feelings of hatred among others.'”
Future Review Will Be Essential
The law is expected to present several challenges once it takes effect. It establishes what can be viewed as a minimum legal standard for protecting the Hinomaru as a national symbol. Its passage also reflects recognition of the importance of protecting the widely shared sentiment that the national flag should be treated with respect.
A supplementary provision requires the government to review the law approximately three years after it takes effect to determine whether its provisions remain “necessary and sufficient to protect the sentiments of the public.”
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(Read the article in Japanese.)
Author: Naoto Hoshi, The Sankei Shimbun
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