Long-fought battle over 'Kimigayo' at an end / Top court calls order 'indirect constraint' of rights, but recognizes importance of school ceremonies

Makoto Inagaki / Yomiuri Shimbun Staff Writer

Yuji Saruya, center, attends a press conference in Kasumigaseki, Tokyo, on Monday after the Supreme Court's ruling on his 'Kimigayo' suit.

The Supreme Court ruling upholding the constitutionality of ordering teachers and school staff to stand and sing "Kimigayo" before the national flag finally settled an argument that has long been a source of disruption at schools.

Yet, Monday's judgment did not touch on what punishments would be appropriate for violators, leaving at least part of the controversy unresolved.

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Battle brewed for 12 years

Fierce confrontations between the school management and some teachers and staff have raged over whether ordering school employees to stand before the Hinomaru flag and sing the national anthem at enrollment and graduation ceremonies infringes on the "freedom of thought and conscience" guaranteed by the Constitution.

Instructions to sing the anthem hardened after a principal of a prefectural high school in Hiroshima Prefecture committed suicide in 1999 after a confrontation with teachers and staff over the singing of "Kimigayo" at a graduation ceremony.

In the wake of the principal's suicide, the Diet passed the National Flag and Anthem Law in August that year, stipulating the Hinomaru as the national flag and "Kimigayo" as the national anthem. Thereafter, standing and singing "Kimigayo" at enrollment and graduation ceremonies became widespread, sparking fierce protests from teachers and staff who did not agree with the practice.

The Tokyo metropolitan government became the next focus of the dispute. In October 2003 the Tokyo Metropolitan Board of Education issued a notification to schools that teachers and staff must stand and sing the national anthem. Since then, the school board has punished teachers and staff who disobeyed orders from superiors. Teachers and staff angered by the punishments eventually filed lawsuits against the order.

According to the Education, Culture, Sports, Science and Technology Ministry, 1,239 teachers and school staff nationwide were disciplined or warned from fiscal 1999 to 2009 for disobeying orders to stand and sing the national anthem. The 706 people disciplined were given punishments such as suspensions and salary cuts.

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Piano ruling paved way

A major turning point in the lawsuits over "Kimigayo" was the Supreme Court ruling in February 2007 that it is constitutional to order a music teacher to accompany the singing of the national anthem on the piano.

In its ruling, the top court presented two instances where a person's freedom of thought and conscience would be considered to have been infringed on: when a specific ideology is imposed on a person, and when a person is forced to declare a certain ideology. The court said the order to play "Kimigayo" to accompany the singing did not violate these standards and was thus constitutional.

This judgment, however, was only over the playing of the piano. In Monday's case, experts said that since standing and singing "Kimigayo" is closer to expressing one's feelings, there was room for the top court to make an additional decision.

Monday's ruling said standing and singing "Kimigayo" includes the "expression of respect" to the national flag and anthem. The ruling by the court's second petty bench recognized that for individuals who do not have respect for the national flag and anthem based on their view of history, the order to stand and sing is an "indirect constraint," even if it does not directly restrict freedom of thought and conscience by imposing an ideology.

The court gave weight to the importance of enrollment and graduation ceremonies at schools, as well as the roles of public school teachers, who as public servants must obey orders at their jobs. The ruling recognized the "necessity and rationality" of the order as exceeding any disadvantage experienced by teachers. The constraint imposed by the order was therefore permissible, the court judged.

Behind the decision is a recognition that the nation has become more global in the more than 60 years since World War II, and that people's way of thinking about the national flag and anthem has changed.

"In the international community, it is common sense that people should pay respect to other nations' national flags and anthems," presiding Justice Yukio Takeuchi said in his concurring opinion. "For [children] to acquire this sentiment, it is necessary [to learn] respect for their own country's national flag and anthem first."

As the Supreme Court's decision acknowledged the appropriateness of ordering teachers to stand and sing the national anthem, while recognizing the validity of some of the plaintiff's claims, it is safe to say that this constitutional debate has finally been settled.

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'An appropriate judgment'

"Ordering [teachers and staff] to stand and sing 'Kimigayo' has legal basis in the National Flag and Anthem Law. The Supreme Court's ruling on the constitutionality of the order was appropriate," said Prof. Setsu Kobayashi of Keio University, a constitutional expert.

"The ruling should be praised for explaining in detail why it was constitutional by taking the feelings of people who don't agree into consideration," he said.

He particularly praised one of the four justices' concurring opinions that said it is important to make an environment that encourages people to voluntarily express respect for the national flag and anthem.

"The ruling will force other court battles on the issue to settle," Kobayashi added.

Education expert Yukihiko Hishimura agreed that the ruling was fitting.

"The main argument in Monday's decision is the same as in the 2007 piano ruling. I think it was an appropriate ruling," he said.

Hishimura, honorary member of the National Institute for Educational Policy Research, said the ruling clarified that playing "Kimigayo" on the piano to accompany singing and singing it are basically the same thing, despite arguments that they are different kinds of official duties.

"The ruling states emphatically that instructions concerning the national flag and anthem are part of [teachers'] public education duties. The ruling should put an end to needless confrontations," Hishimura added.