Japan: The Law on Desecration of the Flag Divides the Country and Alarms the Art World

In Japan, the new law establishing the crime of desecrating the national flag is fueling a heated political, legal, and cultural debate. Desecration is already a crime under the country’s Penal Code, but now the new measure—approved by the National Diet (the Parliament) on July 17—and which represents a significant victory for the conservative government led by Prime Minister Sanae Takaichi—introduces specific criminal penalties for those who damage or publicly desecratethe hinomaru, the country’s national flag. The law provides for imprisonment of up to two years or a fine of up to 200,000 yen (just over 1,000 euros) for those who desecrate, damage, or remove the national flag under circumstances deemed to be offensive to public sentiment. The penalty corresponds to that already provided for under Japanese law for damaging the flag or other national symbols belonging to foreign states.

While the government presents the measure as a tool intended to protect a symbol of the state and the sentiments of those who value the national flag, strong criticism has come from constitutional scholars, legal scholars, artists, and art critics, who view the new legislation as a potential restriction on the freedom of expression guaranteed by the Japanese Constitution. The issue, in fact, is that the law aims to protect “the sentiments of those who hold the national flag dear,” introducing penalties for acts of “damage, removal, or public desecration” of the flag even when such behavior is likely to “cause extreme discomfort or disgust in people.” It is precisely this wording that has sparked debate, since “discomfort” and “disgust” could be interpreted very broadly, according to critics. And this is fundamentally what distinguishes Japanese law from, for example, Italian law, where the offense of desecrating the flag is provided for in the Penal Code but where there is no specific law, nor does the offense of desecration apply in cases of actions that cause discomfort or disgust.

Among the organizations that have openly expressed their opposition is the Japanese chapter of the International Association of Art Critics (AICA Japan), which, in the days leading up to the law’s passage, had launched a petition addressed to members of the Diet calling for the bill’s rejection. However, the initiative did not prevent the bill’s final passage.

The association’s position was formalized on July 9 through a document signed by 48 members: in the text, the signatories explain in detail the reasons for their opposition, arguing that the new law risks having a profound impact on the world of culture and artistic production.

It is precisely the wording regarding “discomfort” and “disgust” that, as mentioned, represents one of the points most contested by critics. The expression used by the legislature is, in fact, considered extremely vague and open to subjective interpretation. According to numerous legal experts, basing the assessment of a crime on concepts such as people’s “discomfort” or “disgust” risks making the application of the law arbitrary and creating a climate of legal uncertainty. Opponents also argue that the new law encroaches on an area already regulated by existing law. In fact, several legal experts point out that any cases of physical damage to the flag can already be prosecuted under the offense of property damage provided for in the Japanese Penal Code. From this perspective, according to the petition’s signatories, there is no real legislative need to introduce a new criminal offense.

Another criticism concerns the legal interest the law aims to protect. According to experts opposed to the measure, the reference to the “feelings” of those who support the national flag constitutes a legal interest that is too vague to justify the introduction of a criminal penalty. Such an approach, they argue, risks turning the protection of a national symbol into a restriction on freedom of expression.

Concerns also center on how the new offense will be applied in practice. The text of the petition highlights that the bill does not take into account the intent behind the contested act, limiting itself to evaluating external and objective elements. In other words, according to the signatories, the bill would not consider whether the act was carried out for artistic, political, symbolic, or protest purposes, but would focus solely on its outward effect and public perception.

This aspect fuels fears that the law could have a strong deterrent effect on the use of the national flag in works of art. According to AICA Japan, in fact, the mere risk of facing legal proceedings could prompt artists, curators, museums, and cultural institutions to avoid any use of the hinomaru that could be interpreted as controversial.

The document emphasizes that national flags have been one of the most recurring subjects in international contemporary art for decades. Their presence is not limited to traditional painting but extends to photography, video art, installations, performances, and numerous other forms of contemporary artistic expression.

According to critics, it is extremely difficult to draw a clear line between a work of art and a form of political or ideological expression. Although the government has stated that artistic representations will not be subject to the new penalties, the association fears that, once the law takes effect, the interpretation of the offense could gradually expand.

The consequences could extend far beyond the production of new works: the petition highlights the risk that a climate of self-censorship will intensify, even in the management of museum collections. Cultural institutions might decide not to exhibit past works that use the national flag in a critical or provocative manner, thereby limiting not only artists’ freedom but also the public’s right to access such works. According to the association, the symbolic force of criminal penalties serves as a powerful deterrent in and of itself. Even if convictions were few and far between, the mere possibility of facing legal proceedings could lead many artists to avoid the topic of the national flag entirely and, more generally, any critical expression directed at the state.

Constitutional law expert Motohiro Hashimoto publicly expressed similar concerns during a parliamentary hearing: according to the legal scholar, punishing those who deface the flag effectively amounts to prohibiting criticism of the government, with the risk of curtailing one of the key guarantees offered by a constitutional democracy.

The government, for its part, has sought to narrow the scope of the law by providing examples of behaviors that will be considered illegal. These include publicly tearing, burning, or trampling on the national flag; removing it from municipal buildings; and even posting videos online showing the destruction of the flag, even if the incident occurs in a private space. At the same time, the government has clarified that certain forms of use will continue to be permitted. Artistic representations, digital images of the flag, and even the use of small decorative flags intended for children will not be prohibited.

However, despite these clarifications, many observers believe that the government’s assurances are not sufficient to dispel the ambiguities of the regulation. The difficulty of distinguishing with certainty between what constitutes artistic expression and what could be classified as desecration continues to fuel doubts among cultural professionals. The debate also fits into the particularly complex history of Japan’s national symbol. The hinomaru, characterized by its famous red disc on a white background, has long been the subject of deep controversy linked to the country’s imperial and military past. Although it has been used for decades as a national symbol, the flag did not receive official legal recognition until 1999, following a long process marked by political and social tensions.

The association of art critics emphasizes that its mission is to promote art criticism and, at the same time, to defend freedom of thought and expression. For this reason, it views the introduction of the new criminal offense with particular concern, believing that it could lead to a gradual restriction of the space dedicated to criticism, experimentation, and artistic research in Japan. The petition concludes by reiterating its firm opposition to the creation of the new criminal offense of desecrating the national flag. According to the signatories, the passage of the law risks limiting not only artists’ freedom of expression but, more broadly, the quality of democratic debate and the right of Japanese citizens to freely express their thoughts through various forms of artistic, cultural, and creative expression. The debate, however, is set to continue even after the law takes effect, as it is destined to become one of the most sensitive issues in the balance between the protection of state symbols and the fundamental rights guaranteed by the Japanese Constitution.

Japan: The Law on Desecration of the Flag Divides the Country and Alarms the Art World

Warning: the translation into English of the original Italian article was created using automatic tools. We undertake to review all articles, but we do not guarantee the total absence of inaccuracies in the translation due to the program. You can find the original by clicking on the ITA button. If you find any mistake,please contact us.