The Tokyo High Court on March 29 acquitted a former worker of the now-defunct Social Insurance Agency who was indicted on allegations that he distributed copies of a Japanese Communist Party newspaper. He had been charged with violating Article 102 of the National Public Service Law, which prohibits national public servants from engaging in political activities.
The administrative neutrality of public servants must be strictly ensured. But the ruling serves as a warning against excessive constraints on political activities by public servants, which could undermine the constitutional right to freedom of speech and expression.
Mr. Akio Horikoshi, who was a pension consultation worker at the Meguro Social Insurance Office in Tokyo and now works for the Japan Pension Service, the SIA’s successor body, put copies of JCP newspaper Shimbun Akahata’s extra edition in the mail boxes of more than 120 residences in his Chuo Ward neighborhood in October and November 2003 as a Lower House election neared. The Metropolitan Police Department arrested him in March 2004. He was released two days later but was subsequently indicted.
This is the first case of a national public servant being charged with violating Article 102 of the law since the Supreme Court in 1974 found a Hokkaido postal worker guilty — despite two lower courts finding him innocent — of violating the clause. The postal worker was fined ¥5,000 for putting up a campaign poster for a Japan Socialist Party candidate in the 1967 Lower House election on a public election notice board and asking other people to put up 184 other posters.
The National Personnel Authority’s rule lists specific political activities that national public servants must not engage in. Violators will be given a maximum of three years’ imprisonment or fined up to ¥1 million.
The Tokyo District Court in June 2006 found Mr. Horikoshi guilty and fined him ¥100,000, suspending the sentence for two years. It cited the 1974 Supreme Court ruling, which said that it is constitutional to prohibit public servants from engaging in political activity that could undermine administrative neutrality, as long as the prohibition can be deemed reasonable and unavoidable. The 1974 ruling also said that the sentencing guidelines must be respected unless there are special factors that make the punishment unconstitutional. Although the postal worker was not in a managerial position and put up the poster in his private time, the Supreme Court said that his act had undermined administrative neutrality.
In its acquittal of Mr. Horikoshi, the Tokyo High Court said that the right to the freedom of expression is central to the political foundations of a democratic nation. Although it accepted the Supreme Court’s 1974 ruling that Article 102 of the National Public Service Law, which prohibits national public servants engaging in political activities other than voting in elections, was constitutional, the high court said that in view of the particular circumstances surrounding Mr. Horikoshi’s case, punishing him was not “necessary and unavoidable” and would therefore be unconstitutional.
The high court noted that punishment must be meted out if a high-ranking national public servant with strong administrative authority engages in political activities or if civil servants carry out such activities in a collective and organized manner. But it ruled that, given the lack of scope for exercising personal discretion in Mr. Horikoshi’s work, there was no danger that his act had undermined administrative neutrality, nor people’s trust in the work of national public servants generally.
Mr. Horikoshi silently and single-handedly distributed copies of the JCP organ in his neighborhood on his days off. The court added that even if people had known that he was a public servant, it is unlikely that his actions would have caused them to doubt the neutrality of the government’s administrative actions.
The prosecution is likely to appeal the ruling to the Supreme Court. If this does occur, the top court should carefully heed the following points made by the high court: that the prohibition against political activities by national public servants is extremely broad and presents constitutional problems; that as people’s understanding of the importance of the right to free speech and expression has deepened they have become fairly tolerant of political activities by public servants unless they are systematic and organized; and that in view of global trends, the time has come to review the prohibition and prescribed punishment.
The top court also should consider whether the investigation against Mr. Horikoshi was lawful — a point the high court did not touch on. According to the JCP organ Shimbun Akahata, a total of 171 police officers shadowed Mr. Horikoshi for one month and filled 33 videotapes with recordings of parts of his private life that were unrelated to the distribution of the publications.
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