In September 2006, the Tokyo District Court ruled that the policy of the Tokyo Metropolitan Government and the Tokyo Metropolitan Board of Education to force school teachers to sing the national anthem Kimigayo (“Your Reign”) during school ceremonies was illegal. The court ruled that the policy violated Article 19 of the Constitution, which guarantees freedom of thought and conscience, and constituted “unjust control” as prohibited by the Fundamental Law of Education. But on Jan. 28, the Tokyo High Court overturned the lower court ruling and ruled that the policy neither violates the Constitution nor constitutes such “unjust control.”

The lawsuit had been filed by 395 incumbent and former school teachers targeted by the board of education’s October 2003 instruction that teachers must stand facing the Hinomaru (Sun) national flag and sing Kimigayo during school ceremonies. Teachers face discipline if they defy the instruction. Defiance subjects teachers to progressively heavier punitive measures that starts with a reprimand and then escalate to a wage cut, to suspension from the job and to refusal of reemployment after the teachers reach retirement age.

It has been reported that the number of teachers disciplined under the instruction has been dwindling. This indicates that many teachers have given up daring to act in accordance with their conscience, defying the instruction. In other words, the control over teachers by the metropolitan government and the board of education is working. The high court ruling only serves as confirmation of this situation.

The 2006 lower court ruling said that since Hinomaru and Kimigayo served as the spiritual backbone of the emperor-centered ideology and militarism before and during World War II and that their religious and political neutrality cannot be recognized even today, the right of people who oppose hoisting the flag and singing the anthem should be recognized by the Constitution. It also noted that teachers are not duty-bound to stand and sing the national anthem or play the piano to accompany the singing, thus making it clear that they have the freedom to refuse to do these things.

In contrast, the high court ruling said that the board of education’s instruction, which calls for raising the national flag and singing the national anthem during school ceremonies, does not constitute imposition of certain acts that deny individuals’ outlook on history or the world on the individuals in question. It also said that because Hinomaru and Kimigayo had been traditionally used during school ceremonies and because public servants such as teachers are “servants of the whole community” under the Constitution, the board of education’s instruction is “rational,” does not violate the constitutionally guaranteed freedom of thought and conscience, and does not constitute “unjust control” as prohibited by the Fundamental Law of Education.

This ruling is difficult to understand. It does not address the likely possibility that forcing teachers to stand before Hinomaru and sing Kimigayo may make some teachers feel that their freedom of thought and conscience are being violated. It seems that the high court thinks that outward actions and inner freedom have nothing to do with each other. The court also forgets an important aspect about a national flag and a national anthem — that they must be accepted spontaneously by people.

When the law declaring Hinomaru and Kimigayo as the national flag and the national anthem, respectively, was enacted in August 1999, then Chief Cabinet Secretary General Tsutomu Nonaka said that the government would not force the use of Hinomaru and Kimigayo. Then Education Minister Akito Arima said that the enactment of the law would not bring any changes to teachers’ duties. But what has happened since is the education ministry’s stricter instruction to boards of educations across the country to use Hinomaru and Kimigayo during school ceremonies, which has caused spiritual pain to some teachers.

The high court ruling is clearly based on a February 2007 ruling by the Supreme Court, which ruled that it was constitutional for the principal of a municipally-run primary school in Hino, Tokyo, to order a music teacher to play the piano accompaniment to Kimigayo during a school ceremony. Thus, it upheld a reprimand by the metropolitan board of education meted out to a teacher who refused to play the anthem during a 1999 ceremony.

The top court said that the principal’s order neither constituted a denial of the teacher’s historical and world views, nor imposed a certain way of thought on her, nor prohibited her from entertaining certain thoughts. The Supreme Court failed to pay attention to the simple fact that the principal’s order brought spiritual pain to the teacher. The Japanese judiciary should fulfill its duty of protecting the rights of people who hold minority opinions.

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