The Second Petit Bench of the Supreme Court on May 30 ruled in a 4-0 decision that a school principal’s order telling teachers to stand and sing the “Kimigayo” national anthem in front of the “Hinomaru” national flag at a graduation ceremony is constitutional.
This represents the top court’s first judgment on the constitutionality of such an order. In February 2007, the court had ruled that a principal’s order telling a music teacher to play piano accompaniment for the singing of Kimigayo, usually translated as “Your Reign,” at a school ceremony was constitutional.
The lawsuit had been filed by a former teacher of a high school run by the Tokyo Metropolitan Government who received a disadvantageous treatment as a result of his refusal to obey the principal’s order. The ruling in part says that the order “indirectly constrains” the freedom of thought and conscience.
But local education authorities may take the ruling’s conclusion as a seal of approval for forcing teachers to stand up and sing Kimigayo at school ceremonies. Thus the feelings of a minority who have different opinions about Hinomaru and Kimigayo would be ignored and their freedom of thought and conscience infringed on.
In August 1999, the Diet enacted a law officially designating the rising sun flag as the national flag and the Kimigayo anthem as the national anthem. Then Prime Minister Keizo Obuchi said that the law would not impose a new duty on people and then Education Minister Akito Arima said that it would not impose a new duty on teachers. But in October 2003, the Tokyo Metropolitan Board of Education issued a notice telling principals of schools run by the metropolitan government to strictly enforce the hoisting of the flag and the singing of the anthem at school ceremonies.
The plaintiff, Mr. Yuji Saruya, did not obey the principal’s order at a graduation ceremony for the night course at the metropolitan Katsushika High School in March 2004. He was later reprimanded. At school ceremonies in later years, he obeyed the order. But in January 2007, the metropolitan government notified him that it would not reemploy him after his mandatory retirement age, contrary to the usual practice. Mr. Saruya later filed a lawsuit asking for withdrawal of the decision not to reemploy him.
In January 2009, the Tokyo District Court ordered the metropolitan government to pay Mr. Saruya ¥2.1 million in compensation, although it rejected his argument that the principal’s order is unconstitutional. But in October that year, the Tokyo High Court reversed the district court ruling on the compensation payment, saying that it is not unreasonable to reject reemployment less than three years after a reprimand occurs.
In its May 30 ruling, the Supreme Court said that the principal’s order “indirectly constrains” the freedom of thought and conscience of people who do not want to express respect to Hinomaru and Kimigayo because it requires them to take an action not based on their view of history and their outlook on the world. Some people think that the rising sun flag and the anthem were used as a means of promoting Japan’s militarism and imperialism. Mr. Saruya did not obey the order because his conscience did not allow him to do so in view of his Korean and Chinese students who studied the history of Japan’s modern war, according to Tokyo Shimbun.
Then the ruling said that since the principal’s order follows the prescriptions of the education ministry’s official guidelines calling for hoisting of the flag and singing of the anthem at school ceremonies and the national flag and anthem law, takes into consideration the public nature of local public servants’ duties and pays consideration to the feelings of students, it has enough necessity and rationality to make its indirect constraint on the freedom of thought and conscience acceptable. Thus the ruling said that the order does not violate Article 19 of the Constitution, which guarantees the freedom of thought and conscience.
The decision that the principal’s order is constitutional automatically led to upholding of the Tokyo High Court’s ruling. It is regrettable that the top court failed to judge whether the metropolitan government’s decision not to reemploy Mr. Saruya only because of his one-time refusal to obey the principal’s order is equitable and justifiable.
After the ruling came out, a local party led by Gov. Toru Hashimoto of Osaka, which controls the prefectural assembly, on June 3 enacted an ordinance to make it mandatory for school teachers to stand and sing Kimigayo at school ceremonies.
Unfortunately, the governor and the party members neglected to consider the fact that the top court ruling said that the principal’s order indirectly constrains the freedom of thought and conscience. Local authorities should pay attention to Presiding Judge Masahiko Sudo’s supplementary opinion that if the coercive element contained in the principal’s order causes unnecessary confusion and the withering of creative activities in the education scene, “the life of education could be lost.”