Business law essay

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BUSL377 Week 3 Tutorial Class Activity

This Class Activity is adopted from the case: 2004 (Gyo-Tsu) No.328 (Judgment of the Supreme Court on 27

February 2007). The Judgment (in English) can be found online at:

<http://www.courts.go.jp/app/hanrei_en/detail?id=876>.

Information for the Section (Background information on ‘Kimigayo’) is from: Jun Hongo, “Hinomaru,

‘Kimigayo’ express conflicts both past and future”, Japan Times, 17 July 2007; Jun Hongo, “Teachers win

lost pay over ‘Kimigayo’”, Japan Times, 8 February 2008.

There are some modifications in the facts from the real case. The year “2010” in items 1, 3 and 7 was “1999”

in the real case. The year “2006” in item 2 was “1995” in the real case.

Judgment in the real case:

(majority of 3; one Justice concurred with the majority opinion but with supplementary explanation on

reasons; one Justice had a dissenting opinion)

The main points of the majority opinion are as follows:

a. It was only the Plaintiff’s personal view of history or view of the world concerning the role of

“Kimigayo” in Japan in the past.

b. It was only her personal belief in social life deriving from the view mentioned in (a).

c. Her refusal to play the piano accompaniment “cannot be regarded as being inseparably

connected” with her view of history or view of the world.

d. The Official Orders requiring the Plaintiff to play the piano accompaniment does not deny the

Plaintiff her view of history or view of the world.

e. At the time when the Official Orders were given in this case, “it was well known that

“Kimigayo” was widely sung as the national anthem” at enrolment and graduation ceremonies in

public elementary schools.

f. Therefore, seen objectively, the act of playing the piano accompaniment for the singing of

“Kimigayo” at an enrolment ceremony “is the duty that a teacher is generally supposed and

expected to perform”.

g. It is difficult to regard the teacher’s playing the accompaniment as “externally [manifesting] that

she has a particular thought”.

h. The Official Orders were not to force the teacher to have any particular thought, or prohibit her to

have any particular thought, or compel her to say that she has or does not have a particular

thought.

i. The Orders cannot be deemed to force the Plaintiff “to teach a one-sided thought or idea to

children”.

j. Art.15 para.2 of the Constitutions + Art.30 of the Local Public Service Act + Art.32 of the Local

Public Service Act: the Plaintiff, as a music teacher of an elementary school, “was in a position

to obey laws and regulations etc. as well as official orders”.

k. The Plaintiff was in fact given official orders by the school principal.

l. The performance of the singing of the national anthem in an enrolment ceremony with an

accompaniment on the piano played by a music teacher conforms with the provisions in Chapter

4 (II-D(1) and III-3) of the Courses of Study for Elementary Schools (Public Notice of the

Ministry of Education No.24 of 1989).

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m. Also, the elementary school in question has performed the singing of “Kimigayo” in enrolment

ceremonies with music teachers’ piano accompaniment. The official orders therefore cannot be

considered as “unreasonable in terms of their purpose and contents”.

n. Taking into consideration the points mentioned above, the official orders issued by the school

principal to the Plaintiff cannot be considered as “contrary to Art.19 of the Constitution as

infringing the Plaintiff’s freedom of thought and conscience”.

Dissenting opinion (Justice Tokiyasu Fujita):

 The true question is not: • Whether or not the Principal’s order would result in prohibiting the teacher from having a

particular view of Kimigayo

• Whether or not the order will compel her to confess about her own view of the history  The true question is:

• Whether or not it is permissible to force her to play the accompaniment on the piano in the ceremony despite the fact that it is very painful for her in light of her belief

 The substance of her “thought and conscience” may include • Not only her view of history (containing the negative view of Kimigayo) • BUT ALSO • The negative view of a public organisation’s practice in forcing all participants of a public

ceremony to act in union on singing Kimigayo even if it is against their will; or

• The belief/idea that one should not take part in such act  If such is the case, the question in this case should be: whether or not forcing a person to conduct an

act against such belief/idea is unconstitutional

 Public officers are servants of the community  Their human rights should be subject to constraint to some extent HOWEVER a balance should be

made between the public interest (to be realized by the Principal’s order) and the necessity to protect

the teacher’s “thought and conscience”

 The ultimate goal of school administration should be “to realize the interest for children to receive education”

 This does not directly leads to the conclusion that it is necessary to force a music teacher to play an accompaniment on the piano for Kimigayo in an enrollment ceremony

 Presuming that instructing children to sing Kimigayo in enrollment ceremony is an interim goal to achieve so as to achieve the ultimate goal of realizing the public interest of children receiving

education, this does not necessarily mean that it is indispensable to oblige a music teacher to play an

accompaniment on the piano for Kimigayo

 Regarding “maintaining order and discipline in the enrollment ceremony”, the music teacher did not suddenly refuse to play; she had not intended to disturb the ceremony by force; she had repeatedly

made her request; the Principal could have predicted her avoidance to play and in reality had prepared

a tape in advance; he was able to have the ceremony proceeded without particular problems.

 Regarding “securing the Principal’s right of control”, when his order is likely to restrict fundamental human rights, it should be questioned whether the principal’s exercise of his right of control is more

important than protection of the public officer’s (the teacher’s) human rights

 More detailed examination should be made to accurately identify the substance of the teacher’s “thought and conscience”

Subsequent Supreme Court decisions confirmed again that official orders requiring teachers to stand and sing

the national anthem etc. did not violate Article 19 of the Constitution.