National anthem debate
(From The Japan Times February 8 issue)

国旗･国歌通達訴訟で合憲判決

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 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 schoolteachers 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 re-employment after the teachers reach retirement age.

The 2006 lower court ruling said that since the 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 the 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 the Hinomaru and sing Kimigayo may make some of them 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 the 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 the 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 education across the country to use the 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.

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.

2006年に東京地裁は都と都教育委員会に対し、入学式･卒業式における教職員への君が代斉唱強制は思想・良心の自由を保障した憲法19条に反し、教育基本法が禁じる「不当な支配」に当たるとの判決を下したが、先月28日、東京高裁はそれを取り消した。

訴訟は、2003年に都教委から学校の式典で国旗に向かって起立し国歌斉唱するよう通達された教職員ら395人によって起こされた。通達に反すると、罰は戒告、減給、停職と回を追って重くなり、定年後の再雇用が認められなくなる。

高裁は、式典での国旗掲揚と国歌斉唱は職員の歴史観や世界観を否定することにはならないとした。またそれらは以前から実施されてきたことで、｢社会の公僕｣である教員への指導は「合理性があり」、思想･良心の自由侵害にも｢不当な支配｣にも当たらないとしている。

国旗の前に起立し国歌斉唱することで教師らが思想･良心の自由の侵害を感じるかどうかは問われず、行動は心の中の自由とは無関係だとみなされているようだ。国旗と国歌は自然に受け入れられなければならないという重要な面も忘れられている。

1999年の国旗･国歌法制定当時、有馬文相は教員の職務上の責務に変更を加えるものではないと言明した。しかしその後、全国の教育委員会は国旗掲揚と国歌斉唱を厳しく指導するようになり、精神的苦痛を感じる教職員も出てきた。

2007年に最高裁は君が代ピアノ伴奏を拒否した音楽教諭をめぐる訴訟で、職務命令に合憲判決を下した。今回はその判例を踏襲したようだ。

職務命令が音楽教諭にとって精神的苦痛となったことに最高裁は配慮していない。日本の司法は少数派意見をもつ人々の権利を守る責任を果たさなければならない。