Consider the following hypothetical scenario: A policeman stops a vehicle traveling along Nelson Mandela Highway with two men inside. The officer notices what appears to be the flag of a foreign nation flying from the pole that used to be the car’s radio antenna. The vehicle doesn’t have diplomatic licence plates and there is neither a president nor an ambassador inside — just two World Cup fans pledging their allegiance to a foreign football power.

For a patriotic people, there is surprisingly very little on the law books touching and concerning our national flag. Much of what we know to be the ‘rules’ in relation to the Jamaican flag is really only protocol. The code for the use of the flag is as follows:

*The Jamaican flag should never be allowed to touch the ground or floor. It should not be flown or used only for decorative purposes on anything that is for temporary use and is likely to be discarded, except on state occasions.

*The flag should never be smaller than any other flag flown at the same time.

*When the flag becomes worn and must be replaced, burn it.

*Do not place any other flag above or to the right of the Jamaican flag, except at foreign embassies, consulates and missions.

*Do not raise any foreign flag publicly, unless the Jamaican flag is also flown, except at foreign embassies, consulates and missions.

*The flag shouldn’t be draped over vehicles, except on military, police and state occasions.

With the prominence and marketability of Brand Jamaica in recent years, the code seems to have lost some of its relevance in everyday life. This is even more so during the recent staging of the World Cup. At most major intersections in the corporate area one could easily and cheaply purchase a Brazilian, Argentinean, Spanish or French flag. Perhaps not the French flag as much as the others. German flags were draped over Japanese ‘deportees’ and English flags adorned many a Peugeot and Volkswagen. There wasn’t a Jamaican flag anywhere in sight, much less to the right of the foreign flags which hung from the walls and ceilings of popular sports bars. So what is the penalty for being unpatriotic?

There was an interesting case some 30 years ago in Guyana which spoke of the moral and national duty to respect national symbols. As in Jamaica, the national anthem is played before the start of movies shown at the cinema. As in Jamaica and almost everywhere else, it is customary to stand when the anthem is being played in a public place. In this case, some 16 patrons refused to stand while the Guyanese anthem was being played prior to the start of a movie. Of the lot, four were arrested by an officer who was present at the cinema, charged and convicted for being in a public place and insulting someone (i.e. him) in a manner likely to provoke him to commit a breach of the peace.

The magistrate who convicted them said “Out of moral and national duty and pride one is expected to stand to show respect for our flag and country when the national anthem is played. It is reasonable to expect members of the public to so behave. It is also reasonable for a human being to react or is (sic) expected to react when he sees persons around him failing to do what is not only moral but decent….In my judgement it is the only decent and reasonable thing to do, and failing to do so is likely to cause others to feel annoyed and provoked.”

Fortunately for the patrons, their convictions were overturned by the Guyanese High Court, but only because the Court did not believe that a police officer, who is duty-bound to uphold the law, could properly say that he felt insulted to the point of being provoked to break it. The Court left open the possibility that the result could have been different had the complainant not been a police officer.

The Judges also pointed out the clear difference between merely provoking someone, and provoking someone in a manner likely to cause him to commit a breach of the peace. Many a provoking word was uttered when Brazil made an early exit from the World Cup. The case law doesn’t lay down objective standards of what constitutes provocation, so what might be a mere insult in Guyana could lead to a ‘penalty shoot-out’ in Jamaica.

We have, in our Public Order Act, a provision similar to the one considered in the Guyanese case. The provision is widely framed as follows: “Every person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.” Ignore for the moment that the fine for such a breach of the peace is currently the princely sum of $100, probably less than the cost of a foreign flag.

Now that the Cup has passed, it’s back to being proud, provokable Jamaicans. It’s time to take down the foreign flags or raise the Jamaican one, put down the popcorn and stand when the national anthem is being played.

Gavin Goffe is an associate at Myers, Fletcher & Gordon and a member of its Litigation Department. Gavin may be contacted at gavin.goffe@mfg.com.jm or through www.myersfletcher.com