Defending Canadian Charter of Rights and Offending other Minorities

Lenin Benedict in Toronto for Asian Tribune

The recent burning of National Flag of Sri Lanka by Tamil Tigers in Canada spoils the image of peace loving Canadians in other parts of the world and shows the spreading of violence, hatred and disrespect to other Nationalities on Canadian soil. It should be also noted that the Tamil Tigers who are famous for violence throughout the world, might burn the Canadian Flag in response to its request to the Canadian Government not being fulfilled. The question that arises here is in such circumstances, which law will protect the respect and dignity of Canadian Flag, the symbol of Canadian individuality and identity?

The Canadian National Flag is the most respected symbol of all Canadians and a symbol of Canadian Identity. On the day of official ceremony inaugurating the new Canadian Flag at Parliament Hill on 15 Feb, 1965, the following words spoken by Maurice Bourget, speaker of the Senate stated, "The Flag is the symbol of the nation’s unity, for it, beyond any doubt, represents all the citizens of Canada without distinction of race, language, belief or opinion."

The above words very clearly expressed the policy of the Government and emphasize the direction towards its people how it has to be felt. The Government of Canada has its own configurations and flag etiquette to be followed as how the National flag to be flown and honored. On the introduction of flag etiquette it says the National flag of Canada is a symbol of honor and pride for all Canadians and should be treated with respect. It also says the manner in which flags may be displayed in Canada not governed by any legislation but by established practice.

Furthermore it also states the rules applied by the federal government are no way mandatory for individuals or organizations; they may serve as guidelines for all persons who wish to display the Canadian flag and other flags in Canada. It also requests to give due consideration to flag etiquette and precedence whenever the National Flag of Canada or other sovereign national flags or provincial and Territorial flags are displayed.

Since Canada does not have any legislation, only just established practice, The Canadian Charter of Rights would have given its citizens the right to insult, burn or defacement of National Flags of other countries.

Just to give a little thought and ways how other Government deal with this problem, information collected from difference sources are given below;

Canada does not have specific legislation to prohibit destruction or defacement of flags, whether Canadian or of other nations. Private members bills to introduce flag burning legislation through amendment of the Criminal Code have not proceeded to a second reading.

Section 248 of the Austrian penal code, inherited from the Third Reich, is concerned with "denigration of the State and its symbols". Insults and brings into contempt the Austrian Republic and its States, is liable for imprisonment for up to one year.

Malicious manner and at a public occasion or a function open to the public, insults, brings into contempt or belittles the flag displayed for official purposes or the national or state anthems of the Austrian Republic or its States, is liable for imprisonment of up to 6 months or a fine of up to 360 times the fixed daily rate.

Law in France, as part of 'internal security' enactments passed in 2003 makes it an offence to insult the national flag or anthem, with a penalty of a maximum £6,000 fine or up to 6 months imprisonment.

In Germany Section 90 of the Criminal Code concerns 'Disparagement of the State and its Symbol'. Disparages the colors, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its Lands, shall be punished with imprisonment for not more than three years or a fine. Whoever removes, destroys, damages, renders unusable or unrecognizable, or commits insulting mischief upon a publicly displayed flag of the Federal Republic of Germany or one of its Lands or a national emblem installed by a public authority of the Federal Republic of Germany or one of its Lands shall be similarly punished. An attempt shall be punishable.

In Hungary it is an offence to dishonor the national flag.

Italy features "Public insult or vilification of the flag or any other emblem of the State". Article 292 of the Criminal Code, deals with anyone who "publicly insults or vilifies" the National flag or "other emblem" of the State, punishable by imprisonment for up to four years. It encompasses those who publicly insult or vilify the national colors as distinct from the flag.

In Norway there is no enactment relating to desecration of Norway's own flag. However the General Civil Penal Code, consistent with the Vienna Convention, protects the flags and national coats of arms of other countries. Any person who in the realm publicly insults the flag or national coat of arms of a foreign State, or who is accessory thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding one year.

There are similar provisions in Sweden and Denmark. "In Denmark, it is illegal to desecrate foreign flags or symbols. However it is legal to desecrate and burn the Dannebrog (flag of Denmark). The reason for this is the fact that foreign states pose a threat to Denmark. A burning of such a flag could be understood as a threat by other countries." This position is truly unique.

In Portugal article 332 of the Penal Code, dating from 1999, provides that anyone who by words, gesture, in writing or by any other means of public communication, desecrates the Republic, national flag or the national anthem the symbols or emblems of the Portuguese sovereignty, or in any other way fails to pay them their due respect, shall be punished with a prison sentence of up to 2 years or with a pecuniary penalty of up to 240 days.

Turkey It is an offence under sections 301 and 305 of the Penal Code to insult "the Turkish nation", destruction of the flag. Such a desecration against the Turkish flag by so-called citizens in its country is totally unexplainable and unjustifiable. It is nothing but treason. Burning the Turkish flag (although not that of the US) attracts a sentence of one to three months’ imprisonment.

In India display of the Indian national flag is governed by the 1950 Emblems & Names (Prevention of Improper Use) Act and 1971 Prevention of Insults to National Honor Act.

The Flag Code encompasses punishment for one who "burns, mutilates, defaces, defiles disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts)" the flag in a public place or in public view. It also makes it an offence to show "disrespect" to the flag, including use of the flag "as a portion of costume or uniform", on "cushions, handkerchiefs or napkins", as "covering for a statue" and allowing the flag to "touch the ground" or "trail in water".

In Egypt, Iraq, Iran, Palestine and Saudi Arabia desecration of the national flag is a criminal offence, typically punishable by up to 20 years imprisonment.

In China "insult" to the national flag is a criminal offence. Article 299 of the Criminal Code specifies that, Whoever purposely insults the national flag, national emblem of the PRC in a public place with such methods as burning, destroying, scribbling, soiling, and trampling is to be to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control or deprived of political rights.

Article 160 of the Taiwan Criminal Code prohibits desecration of the national flag. Article 118 criminalizes desecration of foreign national flags and emblems.

In Japan there is no law against damaging the Japanese flag.(Although vigilantes since the 1960s have on occasion assassinated protestors who were incautious enough to deface or destroy the flag). However there are enactments prohibiting destruction or defacement of the flags of other nations.

Law dealing with Freedom of Expression: Section 2(b) of the Canadian Charter of Rights and Freedoms states, "2. Everyone has the following fundamental freedoms:... (b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. "This right is not absolute, by virtue of the limitation placed in Article1 of the Charter which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable Limits prescribed by law as can be demonstrably justified in a free and democratic society.

Laws dealing with Flags if desecration for political dissent is permissible

As per the Canadian Flag Etiquette Rules, "The National Flag of Canada should be displayed only in a manner befitting this important national symbol; it should not be subjected to indignity or displayed in a position inferior to any other flag or ensign."

Further, it states that, "When a flag becomes tattered and is no longer in a suitable condition for use, it should be destroyed in a dignified way by burning it Privately" These Rules read along with the restrictions placed in Article 1 of the Canadian Charter of Rights and Freedoms suggest that restrictions can be placed on flag desecration.

When the Canadian rules very clearly say, when a tattered Canadian flag should be destroyed in a dignified way, how come Canadians can allow flags of other Sovereign Nations flags to be burned down on their soil? Canada should give a thought about restricting its citizens burning other Nations’ symbol of Dignity and create laws to protect our own Flag before Terrorists defame it too.

(Some of the items mentioned in this article are taken from other sources)

- Asian Tribune -