11 September 2017

Hong Konger Identity and Flag Burning

'The Legal Foundation of Hongkonger Identity' by Simon T M Ng comments that
The individual exits in a context, bounded by history and all sorts of political, legal and social institutions. The individual’s identity, rights, freedoms and duties are largely defined and shaped by these secular institutions. Discussion on the Hongkonger identity has been keen recently. The legal aspect of it, however, is usually overlooked. How does the law define the identity of the people of Hong Kong? This paper argues that residency law in Hong Kong provides the fundamental framework in defining who belong to Hong Kong and it gives the foundation on which a civic identity of Hongkongers may be constructed. “Hongkongers” in this sense is inclusive and rights based, and all Hongkongers share constitutionally guaranteed rights and freedom in common. This embracive legal identity also calls for a public morality requiring equal respect and concern for everyone. Such identity is preferred to other narratives, such as one based solely on restrictive linguo-cultural distinction (Cantonese and Cantopop culture for example). Calling for the morality of equal respect and concern is always challenged in the face of narrow, ethnocentric localism discourses. Upholding of such morality requires courage and clear voices. The Catholic Church, as defender of human dignity and bearing the roles of prophet, teacher and servant, has an important role to play here. ... 
Identity tells who we are and where do we belong. Yet, it is a complicated, multi-faceted and protean construct. And one can, at the same time, have different identities: personal identity (what I say I am); social identity (what we say we are); legal identity (what the law says I am or we are) and so forth. How does the law define us as members of the Hong Kong Special Administrative Region? This is critical in defining our rights and freedoms and in constructing our relationship with our fellow Hongkongers, compatriots in the same State, the wider community and beyond. This article intends to give an account on the law defining our legal identity: how has Hong Kong Permanent Resident developed out of the unique historical and constitutional context of Hong Kong? How does the law define it? How does it relate to the wider legal category of Chinese nationality? And how the understanding of the law is relevant to the discourse and narratives on the Hongkonger’s identity? It argues that residency law in Hong Kong provides the fundamental framework in defining who belong to Hong Kong and it gives the foundation on which a civic identity of Hongkongers may be constructed. “Hongkongers” in this sense is inclusive and rights based, and all Hongkongers share constitutionally guaranteed rights and freedom in common. This embracive legal identity also calls for a public morality requiring equal respect and concern for everyone. Such identity is preferred to other narratives, such as one based solely on restrictive linguo-cultural distinction (Cantonese and Cantopop culture for example). Calling for the morality of equal respect and concern is always challenged in the face of narrow, ethnocentric localism discourses. 
'Dishonouring the Australian Flag' by Caroline Henckels in (2016) 44(2) Monash University Law Review comments
Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The selective policing of flag use in Australia reveals much about the culture of flag veneration inculcated in Australian society during and since the Howard era. Flag burners have been arrested and prosecuted for the offences of disorderly and offensive behaviour, but those who have employed the flag in support of nationalistic or anti-immigration causes have not attracted such opprobrium. Yet, successive attempts to criminalise flag burning have never resulted in the enactment of flag protection legislation — in part on account of a desire on the part of conservative politicians not to martyrise flag burners, but also due to the vulnerability of such legislation to legal challenge for incompatibility with the implied freedom of political communication protected by the Constitution. High Court authority suggests that it would be difficult for such legislation to survive constitutional scrutiny unless the relevant provisions were narrowly tailored to welfare concerns such as public safety or public order, and that an objective of preventing offence cannot be a legitimate reason to suppress political communication.
Henckels argues
 Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The Australian flag has regularly been burned in protest against issues such as colonisation, militarism, immigration policy and Islamophobia, attracting the attention of media and politicians. Although one might have the impression that the Australian flag does not attract the same degree of reverence as the United States flag, it is fair to say that the significance of the Australian flag underwent something of a transformation since the Howard era, from a benign symbol of patriotism into a venerated object. Consider John Howard’s announcement on Anzac Day in 1996 that he would entrench the flag design in statute, the 1996 proclamation of the annual Australian National Flag Day, Pauline Hanson launching the One Nation party in 1997 draped in an Australian flag, the 2004 regime that made federal funding for schools contingent upon each school having a ‘functioning flag pole and fly[ing] the Australian flag’, and the steadily growing panoply of flags displayed behind former Prime Minister Tony Abbott as he delivered speeches on national security, counterterrorism and the deployment of troops. The frequent references in the media and scholarly literature to flag burning and related actions as desecration highlight what Welch describes as the sanctification of the flag as a symbol of civil religion. 
This article assesses the role that the flag plays in our legal discourse, how flag use is policed and has been treated by the courts, and the relationship between proposed flag protection legislation and the implied freedom of political communication (‘implied freedom’). As I will demonstrate, flag use in Australia is selectively policed, where those who employ the flag as a symbol of aggressive nationalism are not (unlike their political opponents) subject to media opprobrium or prosecution. It is also clear that the higher courts have taken into account the implied freedom in flag burning cases, and the failure of successive attempts to enact flag protection legislation is, in part, indicative of some awareness of constitutional considerations among legislators. Although the High Court has held the implied freedom extends to protect ‘uncivilised’ and perhaps ‘offensive’ forms of political communication, it has also indicated that legislation targeted at public safety and public order would justify interference with the implied freedom, which suggests that carefully drafted legislation in this area might survive constitutional scrutiny.