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 Internet searches are swamped with media coverage related to the now-rescinded extradition bill in Hong Kong.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.