Commentary / World | THE VIEW FROM NEW YORK

Anthem refuseniks, and ancient legends

by Hiroaki Sato

“Colin Kaepernick is lucky he’s not Japanese” — so reported Alex Marshall in the September issue of Foreign Policy magazine, amid the furor that the San Francisco 49ers quarterback provoked by not standing for America’s national anthem. How was Kaepernick lucky? Because, Marshall explained, he didn’t have to go through all the trouble that schoolteacher Kimiko Nezu did as an “anthem refusenik.”

I’d never heard of Nezu, so I’ve looked her up. I conclude: Marshall may misrepresent Nezu’s case in some important ways.

For one, from his article you might think Nezu has had few supporters in her objections to the Japanese national anthem “as a symbol of militarism.” In truth, she had a sizable number of them, including legal and other organizational support. In 2006, she received an “anti-authority human rights” prize. In 2010, journalist and filmmaker Toshikuni Doi made a documentary about her and other objectors. The documentary won an award.

For another, Nezu and other like-minded teachers have won lawsuits, beginning in 2006. The Tokyo Board of Education appealed, but so did plaintiffs, and new lawsuits arose.

More recently, in March 2011 the Tokyo High Court overturned earlier decisions and judged that school actions such as warnings, salary cuts and suspensions for teachers not standing for “Kimigayo” and displays of the national flag were “excessive.” There were 400 plaintiffs in that case.

In January 2012, the Supreme Court ruled that school rules as regards flag displays per se did not violate Article 19 of the Constitution. It said that “freedom of thought and conscience shall not be violated,” explaining:

(1) Public schools have the right to issue a warning to a teacher for not rising for the flag and the anthem during functions such as a graduation ceremony.

(2) An individual’s action as regards the flag or the anthem is based on his or her historical understanding or worldview. Imposing anything other than a warning goes beyond the school’s discretionary power.

(3) One of the two plaintiffs had actively interfered with school functions; thus, the suspension was within the school’s discretionary power.

This case had 171 plaintiffs, 168 of them given a “warning,” just one a suspension.

This decision was half-baked, wrote law scholar Noriho Urabe. An adviser to the Institution of Constitutional Law, he had argued regarding the March 2011 decision that enforcing rules on standing for the flag and singing the anthem at school functions violates Article 19. Also, each Supreme Court decision since had dissenters agreeing with his unconstitutionality interpretation.

In May 2015 the Tokyo High Court rescinded the suspensions and salary cuts and ordered restitution. Last May the Supreme Court dismissed the Tokyo Board of Education’s appeal.

These rulings do not mean that the matter is settled. They have had to do only with cases that have arisen in Tokyo. In fact, in July the Osaka District Court dismissed a retired teacher’s suit against Osaka on salary cuts for not standing up for the flag and the anthem. The teacher appealed at once.

But that’s how the law works. You may recall the 1943 U.S. Supreme Court decision, West Virginia State Board of Education v. Barnette. That case had to do with the flag and what Japan doesn’t have, the Pledge of Allegiance. Jehovah’s Witnesses objected to using the flag in the pledge because it was an “image” as meant in Exodus 20: 4-5, and the Supreme Court agreed, saying that expelling pupils or persecuting them otherwise for not reciting the pledge violated the First Amendment of the constitution. But that decision hasn’t prevented most of the 50 U.S. states from requiring the recitation of the pledge in school. And the requirement continues to provoke lawsuits.

This brings us to Marshall’s statement on Japan’s “war guilt or the suitability of its anthem,” although he may be merely parroting what Nezu (and like-minded others) have argued. Nezu believes that the Japanese flag and anthem are not to be displayed or sung at school functions because of what her country did in China and Korea in World War II. That’s what she told filmmaker Doi. She began by taking down the flag raised for the graduation ceremony at Ishikawa Junior High School in March 1994.

As it happens, it was in the late 1980s or early 1990s that news of protests against the flag and anthem in Japan reached the U.S., and I remember an American scholar writing something to the effect, “If you deny your flag because of your country’s misdeeds in the past, there should be no flag in the world.”

In fact, if you follow the reasoning of Nezu and those who hold with her, why not go a step further and deny your country? There is practically no country in the world without terrible deeds in its past.

Also, the origins of Japan’s flag and anthem had little to do with imperialistic conduct later. Japan chose the flag, “the Circle of the Sun,” to distinguish itself from other countries, in 1854 after Commodore Matthew Perry forced the country to open, while it created what was to be “the anthem” for diplomatic ceremonies in the early Meiji Era at the suggestion of the British Navy. The song was first sung for Emperor Meiji on his birthday in 1880, not unlike “Hail to the Chief,” the official U.S. presidential anthem. Does that make the song imperialistic or militaristic? Hardly. Its verse is a slight variation of the anonymous 5-7-5-7-7-syllable poem that tops the “felicitations” section of the early 10th-century anthology Kokinshu.

Marshall teases the verse for its metaphor for the sovereign’s longevity as “a geologically impossible length of time.” But remember: The metaphor comes from an ancient Chinese legend from the days when science and such probably weren’t in the legend maker’s mind.

Hiroaki Sato is a translator and essayist based in New York.