Flying the flag for national hot topic
SOME surprising goings-on in the Court of Final Appeal (CFA) on Wednesday, where their lordships were hearing the Government's effort to re-establish the lawfulness of 'flag laws' which protect against insult to the flags of the People's Republic and the SAR.
Two men were convicted last year of desecrating the flags at a demonstration. Their convictions were overturned by the Court of Appeal on the grounds that the laws concerned were unconstitutional because they infringed upon the Basic Law protections of freedom of speech.
Now I am sure the CFA would not be influenced in any way by anything I might say on this subject, and actually I do not really have any opinion to express on the case before their lordships.
Obviously, having a law protecting your national flag is a restriction on self-expression. Equally obviously, it is rather a small restriction, because the point you can make by damaging the national symbol can still be made in other ways.
Gerard McCoy, for the Government, argued that an indignity to the national flag was an indignity to the state. No doubt the PRC needs all the dignity it can scrape together. Some states protect their flags, some do not. I suppose that as far as the national flag is concerned many of us are happy to put up with whatever the national arrangement may be.
Surely, though, it is obvious - and indeed surprising that the matter had not come up before - that the same argument does not fly quite so happily when applied to the flag of the SAR itself. Clearly, under 'one country, two systems', we can regard the status of the national flag as a matter on which we should stress the 'one country'. A regional flag, on the other hand, looks like a regional matter. Nobody has suggested the PRC has a law against desecrating the flag of Guangdong province.
When the court raised this regional/national point, Mr McCoy turned out to be surprisingly, if you'll pardon the expression, coy. He needed time to seek instructions, he said. It appears the Department of Justice had not anticipated this rather obvious question. How odd.
An even more interesting light on the mental processes of the department was shed in another passage, when Mr McCoy was asked to give examples of what the Government believes are 'aspects of the state and its symbols which are entitled to absolute protection from disparagement or desecration'.
Mr McCoy suggested that this might justify a law which made it a crime to disparage the Chief Executive. He distinguished between 'criticism', which was OK, and 'disparagement', which was not. But even so. The Chief Executive is not a national symbol. He is not even a regional symbol.
He is not a constitutional monarch, a pope, prophet or president. People do not put flowers on him once a year, burn candles in his honour or kneel when he comes into the room (at least in public).
The Chief Executive is an elected political leader. It may be an odd sort of election but it is still an election. He is employed at our considerable expense to discharge certain public functions.
The public has every right to discuss the way in which those functions are discharged and if some of the contributions to that debate are disparaging then that will encourage the Chief Executive to do better.
If people are merely insulting then this will be a most unwelcome debasement of the standard of debate. It will be rude, objectionable and unhelpful. If verbal attacks are extreme, unjustified or in bad faith the Chief Executive can, like any other citizen, sue the perpetrator.
If people were, in Mr McCoy's colourful phrase, to 'daub insults' over him, they could be prosecuted for assault.
But it is really distressing that government lawyers have become so obscenely obsequious that they can contemplate providing this particular office-holder with special legal fortifications for his dignity. What next? A nice summer uniform in white with gold ornaments and a plumed hat? Meanwhile, down on the farm, 'The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which'.