Monday, October 25, 2021

Article 299: Criminalizing Disrespect of the National Flag, Part II

 Read Part I here.

A flag hoisting ceremony in Tiananmen Square in 2005. Image credit: 武当山人 / CC BY-SA 3.0  

The desecration of national symbols is a crime under Chinese law. The National Flag Law was enacted in June 1990 and was extended to cover the national emblem one year later. While the laws were merely codes governing formalities to display the national symbols, a provision to the 1979 Criminal Law added in 1990 made intentionally desecrating the national flag and symbol in public a crime punishable by up to three years’ imprisonment.  

This article explores the often-ignored topic of flag desecration in China. Part I looked at trends in sentencing and the law’s application across different cases. Part II discusses how the law is applied to different groups like Falun Gong, Tibetans, and Uyghurs. While most publicly disclosed cases involve “ordinary” offenders who did not desecrate the flag for political reasons, the same acts committed by practitioners of Falun Gong and ethnic minorities tend to result in lengthier prison sentences. 

Political Cases 

In cases where national symbols in China are desecrated in protest of public policy, like those of Wang Chunhua (王春花) and Liu Jinjie (刘杰津) discussed in Part I, the starting point for sentencing appears to get noticeably longer. Two other cases, which involved criticism of the CCP and so-called “anti-China elements,” also resulted in lengthier prison sentences. However, the circumstances of these cases have not been made entirely clear in available sources. 

  1. Tianjin’s first flag desecration case concerned Wu Zhaoming (吴兆明), who was sentenced to two years in prison in December 2017 for cutting up and damaging a total of 66 national flags, allegedly in a bid to express his discontent with the CCP. Some of the damaged flags and flagpoles were found in garbage bins and on sideroads. Available sources did not explain why Wu became dissatisfied with the CCP. 
  2. In a separate case in Changsha, Hunan, Wu Di (吴迪) was sentenced to 18 months in prison in January 2020 for setting fire to four flags with a lighter. Prosecutors alleged that Wu experienced depression due to unemployment and became “thrill-seeking” after he browsed overseas “anti-China” websites. From October 1-2, the 70th anniversary of the People’s Republic of China, he circulated a video to his friends of himself burning the flags on a university campus. 

Falun Gong 

As shown in the chart below, from 1998-2016, only five people had received the maximum sentences of three years in prison. Of them, Dui Hua found that two were Falun Gong practitioners: 

Chart 1. Sentencing breakdown of defendants convicted of Article 299

Source: Records of People’s Court Historical Judicial Statistics: 1949-2016 

An early case involved Zhang Jingzhi (张敬之) and Wen Yanyu (文廷玉); each was sentenced to three years in prison for throwing paint-filled eggs at flags at a public memorial in Chongqing in August 2009. The heavy sentences could be attributed in part to the timing and setting of their protest. The flags were displayed at a memorial for “revolutionary martyrs”—300 Communist political prisoners held and then slaughtered by Kuomintang security agents in Chongqing’s notorious Zhazidong Prison Camp on November 27, 1949, as the city fell to the People’s Liberation Army.  

According to media accounts, national and local leaders expressed concern about this flag desecration case, and personal instructions to investigators were reportedly issued by then-Chongqing governor Bo Xilai—whose use of public patriotic campaigns and a heavy-handed crackdown on corruption and organized crime was seen by some as an attempt to generate popular support to become a member of the powerful Politburo Standing Committee. 

Another pair of Falun Gong practitioners, Dong Zhiyong (董志勇) and Zhi Xunlin (茆训林), in Jiangsu were sentenced for both Article 299 and Article 300 on November 2016. Although Article 299 in this case only carried one year in prison, they ended up serving prison sentences of 57-69 months because of Article 300. Chinese government sources said that the duo used sickles to damage 114 flags flown on street lampposts in the run up to the 64th National Day. 

Tibetans 

From time to time, Tibetans have undertaken flag desecration to express their blatant rejection of Beijing’s repressive religious policy, desire for genuine autonomy, and even independence. In her blog Invisible Tibet, prominent writer Tsering Woeser chronicled multiple instances of what appeared to be flag desecration incidents across the Tibetan plateau amid the 2008 Lhasa Riots. Protesters across cities and townships reportedly raised the “snow lion flag,” a symbol of the Tibetan independence movement, in place of the Chinese national flag just months ahead of the Beijing Summer Olympics. 

The Tibetan flag carried during Olympic torch run demonstrations in San Francisco, California, on April 9, 2008. Image credit: Victor Lee / CC BY-NC-ND 2.0 

However, many flag burning protesters might not have been charged with Article 299. Court statistics indicate that only three ethnic minorities were convicted of flag desecration from 2008-2009. It is possible they were convicted of the more serious charges of splittism or inciting splittism, with the former carrying a potential death sentence. 

Dui Hua’s Political Prisoner Database has information on two Article 299 cases from 2011-2013. The two cases, both reported by Radio Free Asia, were likely linked to the self-immolation protests involving over a hundred Tibetan women and men who set themselves ablaze to highlight resistance to Beijing’s rule: 
  1. Around 2011, Sonam Norgye received a three-year prison sentence in Basu [Pashoe] County, Tibet, for hauling down and soiling with feces a Chinese flag that had been raised by government workers in the area; 
  2. In September 2013, a court in Sichuan’s Kardze County reportedly handed prison terms of between one and four years to three monks accused of pulling down the Chinese national flag at a local school. Because Article 299 only carries a maximum sentence of three years, one of the monks might have been convicted of an additional crime. 
Dui Hua previously reported the case of Garab (嘎热) who was accused of desecrating the flag out of frustration over the disaster relief efforts for the devastating 7.8-magnitude earthquake that rocked Nepal on April 25, 2015. The earthquake also brought causalities and widespread damage to southwestern Tibet, including his home in Tingri County.  

According to the court judgment, Garab found an old Chinese national flag in the ruins of his former home weeks after the April quake. Prosecutors alleged that he burned holes in the flag and then used a marker to write “Free Tibet” on it. After allegedly hiding the flag under his mattress for several days, he discarded it along a path where some village children found it. Members of a work group stationed in the village noticed the children playing with the flag and reported the incident to local authorities. Garab received a prison sentence of two and a half years in November 2015. 

Uyghurs

A picture of Jama Mosque in Kargilik County, Kashgar, with China's flag and propaganda banners that read "Love the Party, Love the Country." The photo is undated but was published by Radio Free America (RFA) in August 2018. Image credit: RFA via an unnamed RFA listener
 
The PPDB also has information on two Article 299 cases involving Uyghurs. In both cases, the Uyghur defendants received relatively lengthier prison sentences. 
  1. On February 20, 2013, two Uyghurs were sentenced to 24-30 months’ imprisonment in Wensu County, Aksu Prefecture. State news media sources claimed that they refused to perform salah, the obligatory Muslim prayers which are performed five times each day, in mosques where the national flag was displayed. They pulled down and burned the Chinese national flag on December 26, 2012.

    This trial was attended by a total of 1,208 people, including county congress representatives, religious figures, and villagers. The large size of the court audience suggested that the trial was conducted in the form of a public sentencing rally, which is often held in large outdoor public spaces like plazas and stadiums where the accused are bound and flanked by police in front of crowds of spectators that can number in the thousands. While public sentencing rallies in Xinjiang are typically held in cases involving violence, drugs, and state security, this case indicates that Uyghurs in flag desecration cases can also be brought to a public rally.

  2. Just a month after the flag desecration case in Wensu County, a similar case was concluded in Awat County, also in Aksu Prefecture. According to news media sources, all mosques in the county were required to fly the Chinese national flag after August 2011. A muezzin (the person who performs the call to prayer) put the flag into a fireplace; he blamed the flag for the drop in mosque worshippers. Concerned about the choking smoke, he threw the half-burned flag outside of the mosque. He received a 30-month prison sentence on March 19, 2013. 
Article 299: Beyond the National Flag

It is worth noting that the scope of activities punishable under Article 299 is expanding. The tenth amendment to the Criminal Law, which went into force in November 2017, made insults to the national anthem a crime punishable under the same article. Dui Hua previously reported the first known such case involving a female member of Almighty God in Xinjiang Production and Construction Corps. She received a 30-month prison sentence for composing “the Song of Satan’s Victory,” similar in tune to the national anthem. 

Effective March 1, 2021, a new provision added to Article 299 extended the same punishment to those who “misrepresent, defame, profane or deny the deeds and spirits of heroes and martyrs.” On the same day, Chinese blogger Qiu Ziming (仇子明) became the first person to be convicted of this new crime over his posts that authorities say demeaned the Chinese military casualties of a border clash with Indian soldiers in June 2020. Qiu, also a victim of China’s practice of airing forced confessions on state television, is serving his eight months’ prison sentence in Jiangsu until October 19, 2021. 

Footage of Qiu's televised forced confession. Image credit: Hanqiu.com

China is not alone in taking an aggressive stance towards desecration, but questions remain as to whether sentencing is consistent, appropriate, and fair to all. The cases demonstrated in this post suggest that Falun Gong practitioners, Tibetans, Uyghurs, and those who commit the crime as a symbolic political expression against the CCP are at higher risk of receiving longer prison sentences. As Xi continues to cement the notion that a deep love for the CCP and even himself is the same as a deep love for the nation, it is likely that more people who do not share his version of patriotism will run afoul of an ever-expanding Article 299. 

Tuesday, October 12, 2021

Article 299: Criminalizing Disrespect of the National Flag, Part I

A Chinese flag left on Hong Kong Road 01 in 2019. Image credit: 梁柏堅(表弟) Pakkin Leung / CC BY 1.0  

The desecration of national symbols evokes different responses from different governments. In some countries it is an acceptable form of political expression, in others an act that is merely tolerated, and in others a crime. China is among the countries that place broad restrictions on speech to criminalize acts it finds disrespectful to national symbols.  

The five-starred red national flag, which symbolizes the Communist Revolution and unity of the Chinese People under the leadership of the Chinese Communist Party (CCP), is at the heart of the legislation to mandate respect. Its first effort began with the National Flag Law in June 1990. The following year, the law was extended to cover the national emblem, which comprises the design of Tiananmen in a red circle illuminated by five stars and surrounded by sheaves of wheat. While the laws were merely codes of practice governing the formalities to display the two national symbols, a provision to the 1979 Criminal Law added in 1990 made intentionally burning, mutilating, scrawling on, defiling, or trampling upon the national flag and symbol in public a crime punishable by up to three years’ imprisonment. 

Despite being a criminal offense in mainland China for nearly three decades, flag desecration cases have yet to be thoroughly discussed by observers. Internet searches are swamped with media coverage related to the now-rescinded extradition bill in Hong Kong. During the second half of 2019, Hong Kong protesters made headlines for burning, trampling, and flinging the national flag into the sea and defacing the national emblem on China’s liaison office. The former British colony is slated to amend its flag desecration law to criminalize acts in the virtual world, while extending the time allowable for a prosecution for up to two years. 

Drawing on Dui Hua’s research into news media sources, court records, and online judgments, this article sheds light on the little-discussed topic of flag desecration in China. Part I looks at trends in sentencing and the law’s application across different cases. Part II explores how the law is applied to different groups like Falun Gong, Tibetans, and Uyghurs.  Most publicly disclosed cases involve “ordinary” offenders who did not make a political point against the CCP. However, the same acts committed by practitioners of Falun Gong and ethnic minorities tend to result in lengthier prison sentences. 

Court statistics, 1998-2016 

Chart 1. No. of accepted and concluded first-instance criminal cases invoking Article 299 

Source: Records of People’s Court Historical Judicial Statistics: 1949-2016

First and foremost, Article 299 has not been frequently invoked in China. The 12-volume Records of People’s Court Historical Judicial Statistics: 1949-2016 published by the Supreme People’s Court in 2018 indicated that there were only 61 first-instance criminal cases involving 86 defendants from 1998-2016. Except for 2014, the number of people brought to trial every year never exceeded 10. No court cases were tried or concluded in 2001, 2005, and 2006.  

While Article 299 only covered the national flag and emblem from 1998-2016, criminal cases concerning the latter are rare. A possible reason for this is that the national emblem, typically displayed at government offices, is less readily accessible to the general public. Dui Hua has only found one case where someone was sentenced to one year in prison for editing an online image of the national emblem. His sentence was reduced to six months’ criminal detention upon appeal. Most, if not all, of the cases Dui Hua found relate to the physical desecration of the national flag in public spaces. 

The surge of cases beginning in 2012 coincided with Xi Jinping’s ascension to General Secretary. This increase likely reflects his image as a patriotic leader who is more eager than his predecessor to punish disrespect of the national flag, which has come to symbolize the unity of the Chinese people under his leadership. After 2016, the last year for which court statistics are available, Xi continued to usher in new laws aimed at further legislating respect for the national flag. In October 2020, the National People’s Congress Standing Committee passed another amendment to make it a crime to simply turn the national flag upside town

Nearly four in every five defendants received prison sentences of less than three years. The maximum sentence of three years was only meted out to five defendants. After cross-referencing cases recorded in its Political Prisoner Database, Dui Hua found that Falun Gong practitioners and Tibetans were among those who received the maximum sentences. 

Chart 2. Sentencing breakdown of defendants convicted of Article 299

Source: Records of People’s Court Historical Judicial Statistics: 1949-2016

Another notable observation gleaned from court statistics is that 70 percent of all the defendants were ethnic minorities. The court records did not specify which ethnic groups were involved. Public information about these cases is also sparse. Of the 46 Article 299 judgments posted on China Judgements Online, all but five were Han Chinese. The selective disclosure of court judgments suggests an effort to cover up ethnic discord. 

The First Desecration Case 

China’s first criminal trial of flag desecration was reportedly concluded in April 1993. In this case, three students from the Fujian Vocational College of Geology were sentenced to 12-18 months of public surveillance. According to the judgment, the students became dissatisfied with the school after they received disciplinary punishment for violating school regulations. They held a grudge against the student guard team, who they believed was the whistle-blower. In November 1992, the students hoisted two men’s pants on a flagpole in the school playground. They doused the Chinese national flag with kerosene and set it on fire.  

The Chinese national flag and emblem. Desecrating either has been punishable by up to three years in prison since 1990. Image credit: Wikimedia Commons 

A commentary on this first case of flag desecration commended the court’s decision to hand down public surveillance to the adolescent defendants (one of them was minor at the time of the offense). The punishment was a rare act of leniency: public surveillance was only given once, in 2003 for a period of 18 years beginning in 1998. As part of the emplacement measures, the students were allowed to continue attending the same school. However, the court was obliged to hold them criminally liable for desecrating the national flag, which “represents the sovereignty and dignity of the nation.” Their acts of “intentionally insulting the national flag is an affront to the dignity of the country and damages the patriotic passion of the Chinese people.” 

Non-political Desecration 

The same line of patriotic argument has been reiterated to determine conviction in many other publicly disclosed flag desecration cases. Most of these cases are similarly apolitical, with offenders committing the crime over seemingly personal or trivial matters. There were also cases where defendants faced trials for what they claimed were drunken indiscretions. The prison sentences in such cases rarely exceeded six months.  

Recent examples include: 

  • Fang Runzhou (范润州), a farmer from Sanmenxia, Henan, was sentenced to six months of public surveillance in 2017 for ripping up a national flag after a futile attempt to register with the village committee as a “poverty household.” 
  • A man surnamed Zhong from Guangdong received a six-month prison sentence in May 2018 for trampling the national flag while performing a lion dance for a newly opened martial arts center. 
  • On October 1, 2019, Ma Yiyi (马义益) burned two national flags to “vent dissatisfaction with his life circumstances and social reality.” The flags were slated for display at a school in Zunyi, Guizhou, on the 70th anniversary of the founding of the People’s Republic of China. Ma was sentenced to six months in prison in December 2019. 
  • Unable to find a cadre to discuss his own household issues, a man surnamed Pang pulled down a national flag flying over a village committee square in October 2020 and set it alight. On February 2, 2021, Pang was sentenced to six months’ imprisonment. 
The court hearing for the defendant Pang, who was sentenced to six months in prison for desecrating the flag. Image credit: New.qq 

Political Desecration 

As with protests in western countries, national flags in China are sometimes burned in protest of public policy. This happened to be the case of Wang Chunhua (王春花), whose anger with the local government’s decision to rush the construction of a garbage incinerator in Nan County, Hunan, landed her a one-year prison sentence (suspended for 18 months) in May 2017. Wang took part in a protest, where she lowered the national flag from a flagpole in front of a county government office building. The court found her guilty of “recklessly waving the national flag, throwing it on the ground and trampling it multiple times.” 

The starting point for sentencing appears to get noticeably longer in cases triggered by political defiance. Dui Hua found a case where Liu Jinjie (刘杰津) was sentenced to 18 months in prison for burning the national flag in Chibi City, Hubei, in November 2020, allegedly in a bid to express discontent with the stringent COVID-19 quarantine rules. Unable to return to work in Jiangsu amid the province-wide lockdown, Liu claimed to have been inspired by online images of “Taiwanese and Hong Kong independence activists” who burned the national flag to vent discontent with the Chinese government.  

Part II, which explores cases of political desecration and looks at how Article 299 is applied to Tibetans, Uyghurs, and Falun Gong practitioners, will be published in two weeks.