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Fact Check: Did ex-minister falsely link lack of Japanese flag protections to WWII defeat?

This Aug. 1, 2019 file photo shows a Japanese flag raised in front of the Diet building in Tokyo on the first day of an extraordinary session of the Japanese Diet. (Mainichi/Tatsuro Tamaki)

TOKYO -- A conservative parliamentary group in Japan's ruling Liberal Democratic Party (LDP) reportedly aims to have a bill passed in the current Diet session that would establish a new criminal category punishing individuals who damage the Japanese flag.

    While the current Penal Code has no provisions banning damage to the flag, former Internal Affairs and Communications Minister Sanae Takaichi, a leading figure in the parliamentary group, claims that the Criminal Affairs Bureau of the Ministry of Justice explained that the regulations' absence is down to Japan's World War II defeat. But the Penal Code was promulgated in 1907. Is the theory involving Japan's defeat actually true?

    While Article 92 of the Penal Code stipulates penalties for ripping or causing other damage to flags of foreign countries with the intention to insult the country, there are no matching regulations for Japanese flags. The parliamentary group aims to follow the example of other countries that do ban damage to their flags and revise the Penal Code to include criminal penalties for damaging Japanese flags.

    As to why a legal ban on damaging foreign flags exists when a domestic one doesn't, Takaichi wrote in a Jan. 27 column on her website: "In absolute contrast to legal systems overseas, there are no regulations on criminal penalties against damage to Japanese flags, but there are provisions banning damage to foreign countries' flags. Regarding why, Shinsuke Okuno, director of the (LDP's) judicial affairs division, was kind enough to confirm with the criminal affairs bureau of the justice ministry, who told us that 'as Japan lost in the war, it has been adopted and continued.'"

    What Takaichi was claiming is that following occupation by the Allied Powers' General Headquarters (GHQ) after Japan's defeat in World War II, the country developed a somewhat self-deprecating stance without respecting its own national values, instead adhering to the views of foreign countries including those who won the war. She argues this is reflected in Japan's legal structure including a ban for damage to foreign flags but none for Japanese flags.

    But the current Penal Code was implemented in 1907. A publication belonging to the National Diet Library which explains the Penal Code also indicates that, from the time of its implementation, there was a ban on damage to foreign flags while none existed for Japanese flags.

    This image shows a government document dated June 11, 1999, which offers reasons why Japan's Penal Code includes provisions banning damage to foreign flags but not Japanese flags. The document reads, "The specific nature of discussion at the time around the Penal Code's implementation is unclear, but there is the fundamental question of whether it is appropriate to enforce the ban with criminal punishment as a means to protect the nation's prestige." (Mainichi/Riki Yoshii)

    The Mainichi Shimbun asked the Ministry of Justice for its view. A simple answer came from Suguru Kuriki, a counselor of the criminal affairs bureau: "No, we do not share this understanding. We believe there is no connection between Japan's defeat in the war and the lack of regulations on penalties for damaging the Japanese flag."

    Actually, in 1999, amid Diet discussion on the Act on National Flag and Anthem, the Cabinet of then Prime Minister Keizo Obuchi gave its own theory on why the Penal Code has no such provisions. A Cabinet-approved statement on June 11, 1999 read, "The specific nature of contemporary discussions around the Penal Code's implementation (1907) is unclear, but there is the fundamental question of whether it is appropriate to enforce a ban with criminal punishment as a means to protect the nation's prestige. Regarding damage to flags belonging to others, we believe that it was considered (at the time) that such an act could be punishable as damage to property."

    Kuriki explained, "The views indicated by the government's statement at the time are unchanged to this day. The current Penal Code was implemented in 1907, and there were no rules on punishing individuals who damage Japanese flags."

    The Ministry of Justice has completely denied Takaichi's claim that the ministry offered a theory attributing the lack of flag protection rules to Japan's defeat. Kuriki clearly stated that, had he been asked by a Diet member to provide an explanation, he would in no way explain that Japan's defeat led to it.

    The Mainichi Shimbun also asked Okuno, who is said to have first raised the theory about the background to the legislation according to Takaichi's column. He said, "Based on my understanding, there were provisions in Japan's former Constitution making damage to Japanese flags punishable. They disappeared when the new Constitution was drafted after Japan's defeat in the war. I remember hearing this from a senior official at the justice ministry's criminal affair bureau. This may be incorrect, but I think I spoke about it (to Takaichi and others)."

    The former Constitution of Japan consisted of 76 articles, but had no provisions banning damage to Japanese flags. Furthermore, there were no laws on flags in Japan, including in prewar times under the Empire of Japan, until the 1999 implementation of the Act on National Flag and Anthem.

    This Nov. 25, 2020 file photo shows former Internal Affairs and Communications Minister Sanae Takaichi during an interview at the First Members' Office Building of the House of Representatives in Chiyoda Ward, Tokyo. (Mainichi/Daiki Takikawa)

    A representative for Takaichi's office stated, "Takaichi did not hear this directly from Mr. Okuno, but it was secondhand information another lawmaker apparently heard from him."

    Takaichi's office removed the contested claim from her website's column at some time past noon on April 13 following the Mainichi Shimbun's inquiry.

    (Japanese original by Riki Yoshii, Digital News Center)

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