The controversy over flag burning

Flames of rage: There is no law prohibiting the burning of another country’s flag but that doesn’t mean the government approves. — Reuters

Countries differ on whether there should be laws against desecrating such national symbols, or whether doing so is a legitimate political statement. 

FLAGS of countries and states or territories are not regarded as just pieces of cloth.

The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.

At the same time, it would appear that there is no law prohibiting the burning of another country’s flag.

Many incidents seem to leave the impression that such occurrences are the result of tacit government approval.

However, there are instances where citizens of a country claim a right to burn their own flag as a legitimate form of freedom of expression.

One such country is the United States of America, where the concept of freedom of speech has been given a generously liberal interpretation, albeit with growing apprehension.

In America, controversy has reigned over the issue of flag burning and divided the nation in terms of differing views on the subject. One side believes that in the light of the First Amendment, a person’s right to make a political statement is more important than the protection of the flag.

Bill Clinton, when he was President, came out against a proposed constitutional amendment to the American constitution to make the burning of the American flag illegal.

The amendment proposed that “the Congress and the States shall have power to prohibit the physical desecration of the flag of the United States”.

The proposal was supported by a coalition of conservative and military veteran groups and its effect would be to overturn a 1989 decision of the United States Supreme Court declaring that flag burning is protected by the United States Constitution as an act of political protest.

In part, the history of these moves goes back to 1984 when, outside the Republican National Convention in Dallas, a member of the Revolu­tionary Youth Brigade set fire to a United States flag to protest the actions of the government.

Arrested, charged and convicted under the Texas law which classified the flag as a venerated object and provided for criminal prosecution of those who desecrate it, he appealed to the Texas Criminal Appeals Court.

The Appeals Court decided he had been wrongly convicted, not because he was not responsible for setting the flag on fire, but because the First Amendment protected his act which was a form of speech, and as such the Texas law was unconstitutional.

The First Amendment reads: “Con­gress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the go­vernment for a redress of grie­vance.”

However, the decision was not left unchallenged and the matter went to the United States Supreme Court, the highest court in the nation, which upheld the right of flag burning – though only by a majority of five to four.

In doing so, Justice William Brennan said: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

On the other hand, an opposite view was taken by four of nine justices who dissented and would have liked to see flag burning banned.

One of them, Justice John Paul Stevens said: “The ideas of liberty and equality have been an irresistible force in motiva­ting leaders like Patrick Henry, Susan B. Anthony and Abraham Lincoln ... if those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolises their power is not itself worthy of protection from unnecessary desecration.”

Personages such as former Supreme Court Chief Justice William Rehnquist did not even consider it to be a form of expression, saying, “Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people ...”

All these led to demands for a Constitutional amendment. However, on June 21, 1990, a vote of the House of Representatives failed to get the two-thirds majority required for the changes to be pursued.

According to Wikipedia, from 1995 to 2005, the proposed amendment was approved biennially by the two-thirds majority in the House of Representatives, but it failed to achieve the same constitutionally required super-majority vote in the Senate.

Wikipedia notes that the last time it was considered, in the 109th Congress (2005 to 2007), the Amendment failed by one vote in the Senate.

The burning of flags is regarded throughout the world as one of the ugliest and most offensive forms of anti-government feelings.

In view of this, there have been calls from certain quarters that in the interest of good relations with other countries, there should be provisions even against the burning of the flags of other countries.

In many countries, there are specific provisions treating the flag as a venerated object and prohibiting its desecration, in consequence of which the offender would be exposed to punishment.

I have not been able to find such provisions in the context of our own legislation, though other laws would provide a remedy.

I am, however, sure that Malaysians, whatever the law may say or not say, treat our national and state flags with the respect and reverence that patriotic and responsible citizens all over the world give to such venerated objects.

Any comments or suggestions for points of discussion can be sent to The views expressed here are entirely the writer’s own.


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Opinion , Bhag Singh , columnist


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