by: Mickey Ingles

For the past few weeks or so, there’s been a lot of controversy in the United States swirling around San Francisco 49ers quarterback Colin Kaepernick and his refusal to stand during the national anthem. Kaepernick did this as a sign of protest, as he was unwilling to “stand up to show pride in a flag for a country that oppresses black people and people of color.” US Women’s Soccer Team star Megan Rapinoe followed suit—kneeling during the national anthem before a soccer game in Chicago as a sign of solidarity. It has sparked a ton of debate in the Land of the Free, with passionate arguments on both sides. It even—get this—made an organizer play the Star Spangled Banner ahead of schedule to avoid Rapinoe’s actions from “hijacking” the event.

It also begged the question for the local context: if an athlete did the same in the Philippines, what’re the legal implications?

The answer lies in R.A. 8491 or the Flag and Heraldic Code of the Philippines (“Flag Code”). Passed in 1997, the Flag Code was passed to inculcate reverence and respect for the flag and national anthem in all Filipinos. It’s basically the law that mandates everyone to be patriotic. As if we Filipinos needed a law to tell us that—especially given our proclivity to shout #pinoypride in almost anything that even has the slightest connection to the Philippines. (But that’s beside the point.)

The Flag Code states that whenever the national anthem (the “Lupang Hinirang,” mind you, not “Bayang Magiliw”) is played at a public gathering, the attending public should sing it.[1] And you can’t just sing it half-heartedly. Nu-huh. You can’t do that. The law requires that the “singing must be done with fervor.”[2] Fortunately for tone-deaf folks like me, there’s no requirement that it must be sung in tune. (But again, that’s beside the point.)

Once played, everyone should stand at attention and place their right palms over their hearts.

But what happens if a protesting athlete doesn’t? What if the athlete goes the Kaepernick route and sits it out?

Then he or she gets penalized by public censure which will be published at least once in a newspaper of general circulation.[3] And if public shaming isn’t enough, he or she can also end up in prison for not more than a year and/or pay a fine not more than P20,000.[4] That’s a steep price to pay for protesting.

Waitaminute! What about free speech then? Don’t athletes have the freedom to protest?

True, they do. And if flag-burning is protected in the United States,[5] then surely sitting (or kneeling) while the Lupang Hinirang is playing as a sign of protest is protected as well, right? That’s a viable argument, but it remains to be seen if our own Supreme Court will view it the same way. No case has dealt with the issue.

And if anyone’s keeping count, there’s only been one instance when not saluting the flag has been allowed, but that was based on freedom of religion, not free speech. In Ebranilag v. Division Superintendent of Cebu, the free exercise rights of students belonging to the Jehovah’s Witnesses who refused to salute the flag (and instead just stood quietly and didn’t bother anyone) were upheld over the state policy of patriotism.[6]

So, the lesson for Filipino athletes who wish to take a stand during the national anthem, don’t stand at your own risk.[7]

But, of course, in the wise words of Lin-Manuel Miranda, if you stand for nothing, what’ll you fall for?

Mickey Ingles is the editor-in-chief of Batas Sportiva.  If anyone can give him Hamilton tickets, he’ll be very happy.

 

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[1] Flag Code, Sec. 38

[2] Id.

[3] Id. at Sec. 48.

[4] Id. at Sec. 50.

[5] Texas v. Johnson, 491 U.S. 397 (1987)

[6] Ebranilag v. Division Superintendent of Schools of Cebu, G.R. No. 95770, March 1, 1993.

[7] See what I did there?