I voiced my concerns about the "Japanese Flag Damage Crime" bill on this blog last year, and it has finally passed the House of Representatives Cabinet Committee.
"Anyone who publicly damages, removes, or defiles the flag in a manner that causes significant discomfort or disgust to others shall be punished by imprisonment for up to two years or a fine of up to 200,000 yen."
「人に著しく不快、嫌悪の情を催させる方法で公然と損壊、除去、汚損した者は2年以下の拘禁刑または20万円以下の罰金に処する」
When I saw the news, I practically got a headache, despairing at the intellectual decline of Japan as a nation supposedly governed by the rule of law. To begin with, this bill completely lacks both the "legislative facts" and the "protected legal interests" that are fundamental prerequisites for enacting criminal law. If someone destroys a flag belonging to someone else, they can already be adequately punished under existing property damage laws.
In other words, what this new law specifically targets is the act of publicly tearing up your own Japanese flag. How you handle your own property infringes on exactly zero people's rights, and there is no real-world crisis where society is suffering because current laws can't address this. To invent a new criminal penalty under these circumstances just to stroke "patriotic" egos is nothing short of sheer lunacy.
What’s even more terrifying is the sheer fragility of its constituent elements. It seeks to punish those who act "in a manner that causes significant discomfort or disgust to others." But how exactly does one objectively prove abstract, internal emotions like "discomfort" or "disgust" to establish a crime? If you ask me, xenophobes violently waving the national flag while spewing hate speech is the very definition of a highly uncomfortable and disgusting "defilement of the flag." Yet, let's be real, this law, championed by authoritarian politicians, will never be applied to their own base. The inevitable outcome is glaringly obvious, it will be weaponized through arbitrary judgments by those in power to exclusively target anti-government critics and freedom of expression.
Proponents loudly claim that "other countries have flag desecration laws too," but no modern developed nation is pushing for this kind of archaic legislation today. In the US, the Supreme Court has already ruled (in Texas v. Johnson) that burning the flag is protected under the First Amendment as freedom of speech, rendering such bans unconstitutional.
There is also an argument claiming that it’s a "structural imbalance" in our legal system to have Article 92 of the Penal Code (Damage to Foreign National Emblems) without a corresponding law for the Japanese flag. However, Article 92 was specifically designed as a crime concerning diplomatic relations. Its protected legal interest is to prevent diplomatic friction or international conflicts that could threaten Japan's security and the interests of its citizens. That’s precisely why it is a crime subject to prosecution only upon complaint by a foreign government.
The current Penal Code, including Article 92, was enacted in 1907, heavily influenced by the Otsu Incident of 1891. In that historically monumental incident, a Japanese police officer named Tsuda attempted to assassinate the visiting Russian Crown Prince in the town of Otsu. Terrified of Russian retaliation, the Meiji government pressured the judiciary to sentence Tsuda to death under the crime of high treason—a charge strictly reserved for acts against the Japanese Imperial Family. The Chief Justice famously refused, stating that high treason could not be applied to a foreign royal, thereby preserving the separation of powers and judicial independence. Given the specific historical context in which the law protecting foreign emblems was born, arguing that "we need a Japanese flag law just to balance things out" is utter nonsense.
Furthermore, those who hold historical grievances against Japan and target flags in protest typically go after the Rising Sun Flag (旭日旗), not the legally designated Hinomaru (日章旗). However, applying this new law to the Rising Sun Flag, which isn't specified in the criminal code, would be a clear violation of the principle of legality (specifically, the prohibition of analogical interpretation). Ultimately, this law risks being unconstitutional by infringing on the "freedom of expression" guaranteed by Article 21, all while offering practically zero real-world utility.
At the end of the day, this bill is a toothless, purely performative piece of legislation designed to flaunt a twisted ideology that elevates the "authority of the state" and the "national polity" above individual rights. The spirit of Article 13 of the Constitution, which champions constitutionalism and respect for individuals, is being trampled on, leaving only a rampant, excessive identification with state power. I suppose a bill like this passes because an increasing number of people have surrendered their own independence, suffering from the illusion that they become strong by merging their own identity with the will of the state. It’s truly a shame.
By the way, we currently have two typhoons approaching simultaneously. Here in my area, the rain is heavy but the wind is relatively mild. However, it looks like Tokyo is going to take a direct hit. Please stay safe, everyone.
