Akio Horikoshi was convicted June 29 for distributing newspapers to Tokyo homes.
His crime was that he was a central government worker and the newspapers he was delivering were published by the Japanese Communist Party.
Horikoshi, a Social Insurance Agency employee, was convicted by the Tokyo District Court for not being “politically neutral” as required of central government employees under the National Civil Service Law. Article 102 of the law bans civil servants from engaging in political activities.
While some in the media interpreted the court’s ruling as a win, since the 100,000 yen penalty was suspended for two years, Horikoshi, 52, and his lawyers have appealed, arguing that Article 102 runs counter to the constitutional right to freedom of expression.
The defense team also claims the article contravenes Article 19 of the International Covenant on Civil and Political Rights, which guarantees the right to freedom of expression.
Prosecutors, who had demanded Horikoshi pay the 100,000 yen fine up front, also appealed the ruling.
It is the first time a public employee has been accused of violating Article 102 since the “Sarufutsu Incident” in the early 1970s. The Supreme Court found a postal worker guilty in 1974 of having been involved in the election campaign of a Japan Socialist Party candidate.
Horikoshi was arrested in March 2004, only one month after three antiwar activists were arrested for distributing fliers protesting the Japanese troop deployment to Iraq on a Self-Defense Forces housing compound in Tachikawa, western Tokyo.
Civil groups and legal experts see the two cases as worrying developments. They are concerned that there is a growing government crackdown on public criticism of the state, extending to all citizens.
The three activists first were acquitted in December 2004 by the Tokyo District Court, which ruled that distributing fliers is an act of political expression guaranteed under the Constitution.
However, the Tokyo High Court overturned the verdict last December, saying they had trespassed on the SDF housing compound in Tachikawa, western Tokyo, and fined two of them 200,000 yen and the third person 100,000 yen.
“This is no longer only about establishing Mr. Horikoshi’s innocence, and it no longer involves only central government employees,” said Kenji Kato, one of Horikoshi’s lawyers. “Our legal struggle will continue until the Supreme Court rules in our favor.
“There is a growing feeling that political activity may be targeted,” Kato said. “It will make for a dreadful society if we can’t freely speak out about what we think.”
The district court said Horikoshi had distributed JCP newspapers to more than 100 homes in Tokyo between October and November 2003, ahead of the general election on Nov. 9 that year, with the intention of generating support for the JCP.
Horikoshi said his arrest was entirely unexpected because “since joining the party I continued distributing – fliers on my days off for more than 30 years.
“I was told when I became a central government employee in 1972 that engaging in political activities may result in punishment,” he admitted.
However, his lawyers argued it was well-known that some government employees become involved in political campaigns, notably when former civil servants run for the ruling Liberal Democratic Party or union leaders stand for opposition parties.
This political involvement has been allowed to continue almost unchecked for more than 30 years since the 1974 ruling on the postal worker, they said.
During the trial, the defense team also condemned police for violating Horikoshi’s privacy rights by secretly tailing him for nearly a month and videotaping the places he went, including dining out and a trip to the dentist, and the people he met.
The lawyers argued that police violated the privacy of others, including those not involved in Horikoshi’s political activities, during their investigation.
The district court determined the police investigative tactics were basically legitimate. According to Toshiki Odanaka, professor emeritus of criminal law at Tohoku University, the ruling is permission for police to tail and videotape their targets.
“Not only government employees but people involved in activities to raise public awareness of social issues will fear that they may be targeted by police, and these concerns will make them feel intimidated,” Odanaka said. “This effectively means a police gag.”
Now that calls have been increasing for amending the war-renouncing Article 9 of the Constitution, “activities opposed to such moves may be voluntarily halted due to concerns of possible crackdowns,” the professor said.
Horikoshi has felt the pressure, saying, “I have stopped distributing JCP fliers since my arrest.”
Toshiyuki Obora, 49, who was convicted of trespassing on the SDF residential complex to distribute the leaflets, said he has stopped posting fliers there, “as our case is still pending in the Supreme Court.”
“I want to resume our activities, but we have to be cautious as we were arrested” for an unobtrusive activity, he said. “Touts can now be detained if they repeatedly pester passersby, and maybe this will extend to people like us who distribute fliers on the street.”
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