Waseda University Institute of Comparative Law

     Three Petty Benches of the Supreme Court of Japan sequentially rendered judgments as the final appellate court on the so-called Kimigayo Case on May 30, 2011, June 6, 2011, and June 14, 2011. In the cases before the court, the issue was whether the orders issued by school principals, which required teachers and all school personnel to stand and sing the national anthem Kimigayo at graduation or entrance ceremonies in public schools, violated the Freedom of Thought and Conscience guaranteed by Article 19 of the Constitution of Japan. Sanctions were imposed on the teachers for failure to follow the orders.

     The Act on the National Flag and Anthem, which was enacted in 1999, formally defines the Hinomaru and Kimigayo as the national flag and the national anthem, respectively. However, some people even today have a negative view of the Hinomaru and Kimigayo because the term “Kimi” in Kimigayo refers to the Emperor, and many people died under the Hinomaru during World War II. In discussing the bill, therefore, diet members who proposed it had to expressly explain that the act had no legal effect requiring Japanese nationals to accept the Hinomaru and the Kimigayo anthem. But in fact, since then, lower rank acts (e.g. directives of local administration) have required the display of the Hinomaru flag and required teachers and other school personnel to stand and sing Kimigayo in public schools.

     The three decisions shared the conclusion that the orders issued by the school principals did not violate Article 19 of the Constitution of Japan. A precedent of this type of litigation was the Kimigayo Pinano Banso Kyohi (Declining a Piano Accompaniment to Kimigayo) Case (2007) where a public primary school teacher of music claimed that the order requiring an accompaniment to Kimigayo at an entrance ceremony was unconstitutional when the teacher was disciplined for not following the order. The Supreme Court rejected the claim, stating that there was no general linkage between the piano performance of Kimigayo and the world or historical view expressed by the anthem. The series of judgments is generally distinguished from the 2007 judgment and recognized that the act of standing and singing Kimigayo shows some “respect” for the anthem and thereby indirectly restricts the thoughts and conscience of the plaintiffs. However, the Court concluded that the restriction was reasonable with a particular emphasis both on the special status of teachers as public officers and on the importance of the order and smooth progress of the ceremony.

     Among the fourteen judges on the Supreme Court involved in the three cases, seven judges wrote concurring opinions and two judges dissenting opinions. Even the concurring opinion gave little unconditional support to enforcement of standing and singing Kimigayo. The view of these opinions depends on the commentators as to whether the opinions express a forced excuse for their conclusive judegment or an anguished cry from them.

     No judgment in Japan compares to West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) and Texas v. Johnson, 491 U.S. 397 (1989). The state determines what is right, and burning the national flag is clearly illegal. Allowing the “enforcement” of a certain act by the state in public schools likely implies that the order has priority over liberty. More complicatedly, the silent majority of Japanese nationals support such enforcement. The attitude of liberty and tolerance may have not been established even though 60 years or more have passed since the enactment of the Constitution of Japan.