1973.04.25

1968 (A) 2780

Judgment upon case of violation of the National Public Service Law providing crime of inciting public officials to acts of dispute

Judgment of the Grand Bench, dismissed

Concerning the acts of dispute of public officials and employees of public corporations, the Supreme Court once delivered the following opinion, in each of the grand bench judgments decided in 1966 and 1969: that also public officials and employees of public corporations are in general guaranteed fundamental rights of workers: that the acts of dispute for which criminal sanctions are to be inflicted are limited to those which are carried out for political purposes, those which are accompanied with violence, or those which extend over an unjustifiably long time and bring serious obstacles to the life of people: that Article 110 of the National Public Service Law and Article 61 of the Local Public Service Law both of which lay down "the crime of inciting, etc., acts of dispute" are restrictively applied merely to the cases where not only the acts of dispute themselves but also the conducts of inciting, etc., are highly illegal: and that criminal sanction is not inflicted for the conducts, such as strike orders, which ordinarily accompany the acts of dispute. However, in this grand bench judgment, the Court delivered the following opinion: that since public officials are servants of the whole community, whose duties are of public character, whose working conditions are guaranteed by law, and since adequate compensation measures for the restriction on their fundamental rights of workers have been established as a system, the provisions of the National Public Service Law which prohibit acts of dispute should be deemed as natural restriction from the viewpoint of the common interest of the whole people, and do not violate Article 28 of the Constitution which provides that "the right of workers to organize and to bargain and act collectively is guaranteed": that the restrictive construction that Article 110 of the National Public Service Law which lays down "the crime of inciting, etc., acts of dispute" is restrictively applied merely to such cases as where highly illegal acts of dispute are incited by highly illegal means and measures, is not only too vague, but also wrong because it disregards the reality that generally the acts of dispute are started and finished by the order of the dispute leader: and that it should be concluded that criminal sanction is inflicted even for the conducts, such as dispute orders, which ordinarily accompany acts of dispute.

Each Jokoku appeal is hereby dismissed.

Concerning Items 1, 3 and 5 of the reasons for Jokoku appeal jointly submitted by Defense Counsel Yoshiya Sato and three others:

The gist of the contentions is that the judgment below violates Articles 28, 21 and 18 of the Constitution in that it decided that Paragraph 5, Article 98 and Item 17, Paragraph 1, Article 110 of the National Public Service Law (the Law prior to the amendment by Law No. 69 of 1965, hereinafter referred to as N.P.S. Law) do not violate Article 28 of the Constitution, and in that it applied Item 17, Paragraph 1, Article 110 of N.P.S. Law to the cases concerned upon the view that the provision does not violate Articles 21 and 18 of the Constitution.

1 Considering these Items: Article 28 of the Constitution guarantees "the right of workers to organize and to bargain and act collectively", that is, what is called fundamental rights of workers. The guarantee of these fundamental rights of workers is based on the fundamental idea of the guarantee of what is called the right to live laid down in Article 25 of the Constitution, and aims at the improvement of the economic status of workers, together with the guarantee of the right to work and the guarantee of the fixation by law of the standards for working conditions by Article 27 of the Constitution. Considering in conformity with the basic spirit of fundamental rights of workers, we must recognize that the guarantee of fundamental rights of workers by Article 28 of the Constitution is also applicable to public officials, because, though their wage and other working conditions are not fixed by the agreement with the employer, unlike in the case of workers in private enterprises, public officials are not different from the ordinary workers in the point that the former earn their living by offering their labor force as workers. However, as these fundamental rights of workers are guaranteed as the means for improvement of the economic status of workers, and are not absolute rights to be the end in themselves, they are not, as a matter of course, free from the restrictions necessary from the viewpoint of the common interest of the whole people including workers. This is unquestionable in the light of the purport of Article 13 of the Constitution. (With this regard, it can be said that the "public welfare" in Article 13 of the Constitution means the common interest of the whole people including all those who are in status of workers.) Following is the statement in detail about this principle in relation to the national public officials who engage in the activities other than governmental enterprise activities (hereinafter referred to simply as public officials) who are here in question:

(1) While public officials, unlike the workers in private enterprises, are appointed by the government in charge of the administration of the affairs of the state based on the trust of the people, as Article 15 of the Constitution indicates, their employer is in substance the whole people and they owe their obligation of offering their labor force to the whole people. Naturally it is not permitted to deprive public officials of the right to organize and any other fundamental rights of workers solely on the reasons stated above, but we must recognize that there are sufficient reasonable grounds to impose necessary and unavoidable restrictions on the fundamental rights of workers of public officials on the basis of the speciality of the status of public officials and the public character of their services. For, public officials engage in the services for public interest; it is necessary and indispensable for them, in order to administer public service harmoniously to fulfill their own duties in their own posts without distinction of the substance of their duties; and the acts of dispute resorted to by public officials are not only inconsistent with the speciality of the status and the public character of the services, but also bring public services, more or less, to suspension or delay, which actually or possibly have a serious influence on the common interest of the whole people including workers.

Next, we cannot overlook the fact that some difference exists between public officials and the workers in private enterprises in fixing working conditions. In private enterprises where pursuit of profits is generally free, freedom of workers to demand share in the profits is logically approved, and as a general rule, workers are permitted to exercise, without any restriction, the fundamental rights of workers guaranteed by Article 28 of the many countries including ours.

As stated above, it is a matter of course that the acts of dispute of public officials may be made subject to the restrictions different from those in private enterprises, from the viewpoint of the speciality of the status of public officials and of the security of the common interest of the whole people including workers, and this has been approved from the international viewpoint.

(2) However, as stated above, since the fundamental rights of workers are guaranteed also for public officials by the Constitution, it is considered that the purport of the Constitution requires to keep the balance between the guarantee of these rights and the protection of the common interest of the whole people. Accordingly, appropriate measures should be taken which compensate for the restrictions on the fundamental rights of workers, in case they are imposed. Now, we consider whether the concrete measures in the working relationship of public officials prescribed by the legal provisions are consistent with the demand of the Constitution:

a The personnel who are public officials not only enjoy the working conditions established by law, as stated below, and the status guaranteed by laws and other provisions, but also generally possess, except special kinds of public officials, the freedom to form employee organizations for the purpose of maintenance of and improvement in their working conditions and to join or refrain from joining formed employee organizations (Para. 2, Art. 98, N.P.S. Law; Para. 3, Art. 108-2 of the National Public Service Law as amended as stated above (hereinafter referred to simply as amended N.P.S. Law)), and the related authorities must respond to the demand for bargaining on the compensation, working hours, and other working conditions of the personnel, and a certain incidental matters when they are asked to meet for bargaining on these matters by the registered employee organizations (Para. 2, Art. 98, N.P.S. Law; Para. 1, Art. 108-5, amended N.P.S. Law). Thus, granting that the personnel do not enjoy the right to make a collective bargaining agreement which is guaranteed for the workers of the private enterprises, they enjoy, as a rule, the right to bargain, and besides, they are not treated disadvantageously, not only because of the fact that they are members of the employee organization, that they have tried to form such an organization, or that they have tried to join it, but also because of the fact that they engage in justifiable activities in the employee organization (Para. 3, Art. 98, N.P.S. Law; Art. 108-7, amended N.P.S. Law), and they are not denied the freedom to express dissatisfaction or voice opinions about the matters for bargaining by reason of their non-membership in an employee organization (Para. 2, Art. 98, N.S.P. Law; Para. 9, Art. 108-5, amended N.P.S. Law). However, the personnel are prohibited by Paragraph 5, Article 98 of N.P.S. Law (Para. 2, Art. 98, amended N.P.S. Law) from striking, engaging in delaying acts or other acts of dispute, or from resorting to delaying tactics which reduce the efficiency of governmental operations, against the public as employer represented by the Government, in the light of the speciality of their status and the public character of their services, and it is also provided that nobody shall attempt, conspire to effect, instigate, or incite such illegal actions. The personnel who violate this prohibiting provision are not immune from the disadvantages on the administrative level such as the impossibility of claiming to the Government the rights relating to the appointment or employment which they enjoy on N.P.S. Law and so on (Para. 6, Art. 98, N.P.S. Law; Para. 3, Art. 98, amended N.P.S. Law). But, there are no penal provisions for the personnel who merely participate in the acts of dispute, and the penal provision covers only those who conspire to effect, instigate or incite acts of dispute, or who attempt such conducts (Item 17, Para. 1, Art. 110, each of N.P.S. Law and amended N.P.S. Law).

Judging from the relating provisions mentioned above, it can be concluded that, regarding also public officials placed under the logical restrictions stated above on the fundamental rights of workers, the law assumes an attitude to respect the fundamental rights of workers, and to intend to keep restrictions on these rights, especially laying down penal provisions, to the minimum, while taking into consideration the balance between such restrictions and the maintenance and promotion of the common interest of the whole people. The effect of this view was expressed also in the majority opinion of the judgment upon what is called A Case (ref. grand bench judgment upon Case (A) No. 296 of 1964, decided on Oct. 26, 1966, Supreme Court Criminal Report (hereinafter referred to as Crim. Rep.) vol. 20, No. 8, p. 912).

b Thus, for public officials whose acts of dispute, etc., are restricted from the viewpoint of the protection of the common interest of the whole people including workers, the law has established, from the purport of guaranteeing their right to live, careful and detailed provisions as the equivalent compensation measures for these restrictions, relating to their status, appointment and dismissal, duties and services, and working conditions including compensation, and in addition, the National Personnel Authority as the central administrative organization in charge of personnel affairs which is of quasi-judicial character. Above all, public officials enjoy what is called the working conditions established by law, such as the compensation paid under the pay plan prescribed by law, and the compensation schedule and the regulations on the matters listed by law are provided in the pay plan. The National Personnel Authority is obliged to recommend or report to the Diet and the Cabinet about the compensation, working hours, and other working conditions of public officials, in accordance with the principle of meeting changing conditions. Moreover, the personnel who are public officials are allowed to make requests of the National Personnel Authority for what is called the administrative action, individually or through the employee organization, on their salary, wages, and other working conditions, or to apply of the National Personnel Authority for review when they are given disadvantageous actions. Thus, public officials enjoy protection with these systematically consolidated measures for the guarantee of the right to live, in compensation for the restriction on the fundamental rights of workers.

(3) As explained above, the services which public officials engage in are of public character, on one hand, and, on the other hand, their major working conditions are fixed by law, and their status is guaranteed, and in addition, appropriate compensation measures have been established. Accordingly, to prohibit them from carrying out the acts of dispute and from inciting, etc., these acts by Paragraph 5, Article 98 of N.P.S. Law should be deemed as inevitable restriction from the viewpoint of the common interest of the whole people including workers, and we conclude that it does not violate Article 28 of the Constitution.

2 Next, Item 17, Paragraph 1, Article 110 of N.P.S. Law prescribes a penal clause for imposition of punishment on anyone, without distinction whether he is a public official or not, who plays a role of motive power or a prop for the illegal acts of dispute, with consideration that the delay or suspension of the services resulting from the acts of dispute by public officials may possibly bring extensive serious obstacles to the common interest of the whole people. Namely, as stated above, since the prohibition of the acts of dispute by public officials is not unconstitutional anyone who incites, and so on, the illegal acts of dispute in violation of the prohibition is socially more blameworthy than a mere participant in the dispute because he carries motive power into the illegal acts of dispute and produces the cause of the start or performance of the acts of dispute. Hence, it is reasonable enough to lay down penal provisions, in recognition of the necessity for punishment especially against the performer of such incitation, etc., in order to call him to account for his conduct and in order to prevent the illegal acts of dispute. Consequently, we cannot by any means admit that Item 17, Paragraph 1, Article 110 of N.P.S. Law violates Articles 18 and 28 of the Constitution.

3 Further, we are going to consider its relationship to Article 21 of the Constitution. According to the facts constituting the crime conclusively found in the judgment below, the defendants, all of whom were the executive members of B Workers' Union organized by the personnel of Ministry of Agriculture and Forestry, after the Cabinet introduced the bill for the amendment of a part of the Police Duties Law into the House of Representatives on October 8, 1968, as a part of the Fourth Uniform Movement against it, from 9.00 a.m. to 11.40 a.m. of November 5, 1958, persuaded and instigated the personnel of Ministry of Agriculture and Forestry to participate in the work-place assembly "against the undesirable amendment of the Police Duties Law" held in front of the front entrance-hall of the Ministry, as described in Count 2 of the judgment below, as well as performing the conduct described in Count 1 of the same. Hence the conduct of the defendants, and the act of dispute which they incited, that is, the work-place assembly of the personnel of Ministry of Agriculture and Forestry leaving the work-place, should be deemed as having been performed for the political purpose of opposition to the amendment of the Police Duties Law.

It should be recognized that even the freedom of expression is not to be enjoyed with unlimited arbitrariness of the people, and that it may he placed under reasonable restrictions in cases where the specific expression interferes with the public welfare (ref. grand bench judgment upon Case (Re) No. 1308 of 1948, decided on May 18, 1949, Crim. Rep. vol. 3, No. 6, p. 839; grand bench judgment upon Case (Re) No. 498 of 1949, decided on Jan. 9, 1952, Crim. Rep. vol. 6, No. 1, p. 4; grand bench judgment upon Case (A) No. 3875 of 1951, decided on Nov. 30, 1955, Crim. Rep. vol. 9, No. 12, p. 2545; grand bench judgment upon Case (A) No. 899 of 1962, decided on Nov. 18, 1964, Crim. Rep. vol. 18, No. 9, p. 561; grand bench judgment upon Case (A) No. 305 of 1964, decided on Oct. 15, 1969, Crim. Rep. vol. 23, No. 10, p. 1239; grand bench judgment upon Case (A) No. 1626 of 1967, decided on Jun. 17, 1970, Crim. Rep. vol. 24, No. 6, p. 280). Since even workers do not enjoy any special privilege to utilize acts of dispute as the means for realizing their political claims, which are essentially permitted as the means for improvement in their economic status, it should be concluded that it is from the first impossible that such acts of dispute are exceptionally guaranteed as the freedom of expression. In addition, it must be recognized that public officials as workers are not allowed to perform acts of dispute for such political purposes, in a double sense, because, as stated above, they are prohibited from performing acts of dispute in itself by the law which is constitutional. Consequently, to dare to incite, and so on, the prohibited, illegal acts of dispute of public officials is nothing but to instigate the neglect of the important duties of public officials working for the public interest, admitting that such a conduct itself would be an expression of thought in a sense. After all, such a conduct may possibly bring serious obstacles to the common interest of the whole people, and should be regarded as exceeding the limit of the freedom of speech guaranteed by the Constitution. Accordingly, we cannot conclude that Item 17, Paragraph 1, Article 110 of N.P.S. Law which provides, in effect, that punishment should be inflicted for the conduct of inciting, etc., violates Article 21 of the Constitution.

To sum up what has been stated above, the assertion that these provisions of N.P.S. Law themselves are unconstitutional is without merit. Therefore, the contention blaming the application of these provisions of N.P.S. Law to the cases concerned in the judgment below cannot be approved of.

Concerning Item 2 of the same:

While the contention is the assertion of the violation of Articles 28 and 31 of the Constitution, it does not include the concrete contention of errors committed in the judgment below, and does not satisfy the requirements for the legitimate reasons for Jokoku appeal.

Concerning Item 4 of the same:

The gist of the contention is that Item 17, Paragraph 1, Article 110 of N.P.S. Law violates Article 31 of the Constitution and that the judgment below is also illegal in applying the provision to the cases concerned, on the ground of vagueness existing in the constituent elements of the crime laid down in the provision, especially in the notions of inciting, etc., and besides on the ground of unreasonableness of inflicting punishment only for the conduct of inciting, etc., which is the conduct in the preceding stage of the performance of acts of dispute, though the performance of acts of dispute itself is not punishable.

However, thinking of "inciting" and "attempting" which are questioned in the cases concerned among the conducts laid down in Item 17, Paragraph 1, Article 110 of N.P.S. Law which are punishable as motive power or prop of the illegal acts of dispute, it is proper to construe that "inciting" here means to give others a spurring stimulus which is likely to make their resolution or to encourage their resolution already made to carry out the illegal acts laid down in the former part of Paragraph 5, Article 98 of N.P.S. Law with the aim of making them carry out such acts (ref. grand bench judgment upon Case (A) No. 1413 of 1958, decided on Feb. 21, 1962, Crim. Rep. vol. 16, No. 2, p. 107), and that "attempting" means planning or preparing for the performance of conspiracy, instigation or incitement of such illegal acts and such planning or preparing as reaches the state where it is recognizable that the danger of performance of such illegal acts has concretely appeared. (Neither those who merely offer simple mechanical labor nor those who are in the similar positions are included in relation to both of the above-mentioned conducts.) Thus it cannot be said that, as is contended, vagueness exists in the constituent elements of the crime laid down in Item 17, Paragraph 1, Article 110 of N.P.S. Law, nor is it by any means regarded as irrational to punish as an independent crime only the conducts of inciting, etc., which are the conducts in the preceding stage of the illegal act, since, as stated above, the conducts of inciting, etc., are deemed as socially more blameworthy than mere participation in the acts of dispute because they are the conducts giving cause to the illegal acts. Consequently, the assertion of unconstitutionality contended is without merit.

According to the facts constituting the crime conclusively found in the judgment below, the defendants, under conspiracy with each other and with the chief treasurer of the Union and numbers of the members of the central executive committee of B Workers' Union, as a part of the Fourth Uniform Movement against the amendment of the Police Duties Execution Law, (a) from the midnight of October 30 to November 2 in 1958, made the chief of the general affairs division of the Union send by wire to the headquarters, the branches and the division committees of the Union in each prefecture (including Osaka Prefecture and Hokkaido) "Telegraph Order No. 6" under the name of B Workers' Union which purported: "Members of the Union are ordered to perform the activity of going to work at noon, on November 5, against the undesirable amendment of the Police Duties Execution Law, even without the acknowledgment of the chief of the work-place to which they belong, (provided that, in a certain special work-places, they are ordered to perform the work-place assembly for an hour or longer within working time.)" and made him send by ordinary or express mail to each of the committee-chairmen of headquarters, branches and division committees in each prefecture (including Tokyo as well as Osaka Prefecture and Hokkaido) "Writing Order No. 6" consisting of the same contents, under the name of C, Chairman of the Central Struggle Committee of B Workers' Union, (b) from 9.00 a.m. to 11.40 a.m. of November 5 in the same year, at the Ministry of Agriculture and Forestry, under the situations that each entrance of the office building was picketed with crowds, that the doors of the front entrance were combined with flag-poles, etc., and that desks and chairs, etc., were piled up inside the back entrance, and so on, kept about 2,500 of the personnel of the Ministry from entering the building, and persuaded them with continuous call into participating immediately in the work-place assembly "against the undesirable amendment of the Police Duties Execution Law" held in front of the front entrance of the Ministry, and by doing so, instigated them to participate in the work-place assembly scheduled to be held for two hours within working time. (Time actually held was from about 10.00 a.m. to about 11.40 a.m., and the regular beginning time for work was 9.20 a.m. The number of the participants was over 2,000.) Accordingly, the conduct of sending each order stated above in (a) is nothing but objectively planning and preparing for inciting the performance of acts of dispute to the personnel of the Ministry of Agriculture and Forestry as national public officials who were the members of the Union over the country, and continuous persuasion under the situations stated above in (b) should be regarded as having given numbers of the personnel a spurring stimulus which is likely to make their resolution, or to encourage their resolution already made, to perform the illegal acts laid down in the former part of Paragraph 5, Article 98 of N.P.S. Law, with the aim of making them perform such acts. Consequently, it is just and proper for the judgment below to have concluded that the fact (a) constituted the attempt to incite the performance of acts of dispute and that the fact (b) constituted the conduct of inciting the performance of acts of dispute.

Concerning Item 6 of the same:

The contention is that the judgment below committed error in construction and application of Paragraph 5, Article 98 and Item 17, Paragraph 1, Article 110 of N.P.S. Law, and formed the judgment incompatible with the judicial precedents formerly established by the High Court cited in the argument for the appellants.

As the argument for the appellants duly points out, the judgment below holds that "since the leading conducts of 'inciting', etc., of Item 17, Paragraph 1, Article 110 of the same Law function as motive power or prop for acts of dispute and can be regarded as more illegal in anti-social and anti-legal character, etc., than the conducts of the performance of acts of dispute itself, there is no logical necessity for intentionally putting narrow construction on the notions of conducts of 'inciting', etc., in order to avoid the result of unconstitutionality, nor is there sufficient proof for it," and besides holds that "the illegality of the leading conducts" laid down in Item 17 of the same Article "must reach the level of the illegality presupposed in the penal provisions in general, that is, the level of the punishable illegality, in the light of the purpose, scale, means and measures (form and type) and all other incidental circumstances of the conducts, and that these leading conducts shall be limited to those which assume anti-social or anti-legal character enough to justify inflicting punishment," and the court below applies the above-mentioned provision of N.P.S. Law, without putting what is called a restrictive construction at all, to the defendants' conducts concerned. On the other hand, the judgment of the Osaka High Court decided on March 29, 1968, and the judgment of the Fukuoka High Court decided on April 18, 1968, both of which are cited in the argument for the appellants, are of opinion that Item 17, Paragraph 1, Article 110 of N.P.S. Law or Item 4, Article 61 of the Local Public Service Law should be restrictively construed concerning the conduct of inciting, or the acts of dispute as the object of inciting, or both, and these judgments were decided earlier than the judgment below. Accordingly, it is recognized that when the judgment was rendered, the court below formed the judgment incompatible with the judicial precedents formerly established by the High Court as appellate court, about the matter concerning which there existed no judicial precedents of the Supreme Court, as provided in the latter part of Item 3, Article 405 of the Code of Criminal Procedure.

However, as is mentioned above, regarding Paragraph 5, Article 98, and Item 17, Paragraph 1, Article 110 of N.P.S. Law, the prohibition of acts of dispute, etc., of public officials is not unconstitutional, and we can approve the reasonableness to lay down penal provisions for the conducts of inciting, etc., acts of dispute, on the basis of the recognition of their highly anti-social character. Consequently, we can by no means approve of distinguishing the acts of dispute of public officials which are made illegal by these provisions from those which are not made illegal, nor distinguishing, among the acts of dispute to be made illegal, the acts of high illegality from those of low illegality, nor inflicting criminal sanction only for the acts of dispute with high illegality, nor determining whether the illegality of the conducts of inciting, etc., in themselves is high or low or whether such conducts are socially permissible or not by identifying them with the acts of dispute themselves for which no penal provisions were laid down in N.P.S. Law on the basis of recognition that the attempt, conspiracy, persuasion, instigation, order, etc., are what is called the conducts which ordinarily accompany acts of dispute. For, if Item 17, Paragraph 1, Article 110 of N.P.S. Law were to be construed as to purport to inflict criminal sanction only for the conducts of inciting, etc., the highly illegal acts of dispute by the highly illegal or socially impermissible means, the division would become extremely vague between the conducts for which criminal sanction can be inflicted and those for which it cannot be inflicted, because the distinction of whether the illegality in question is high or low is naturally very vague. Besides, to construe the same provision as purporting not to inflict punishment for the conducts of inciting, etc., which "ordinarily accompany" acts of dispute and which are identifiable with and inseparable from such acts, would not only ignore the reality that acts of dispute are generally started and finished by the order of the leader of dispute, but also would result in keeping out of the objects of punishment even the conducts of inciting, etc., performed by a third person to whom the fundamental rights of workers are not guaranteed. Moreover, if the same provision were to be construed as purporting that the conducts of inciting, etc., performed by such a third person shall be punished without distinction of their form and type because these conducts are not those which "ordinarily accompany" acts of dispute, such a construction would admit the distinction in the imposition of punishment between the conducts of inciting, etc., performed by public officials and those performed by third persons, though they are the same in form and type. Such a construction would be not only incompatible with the term "anyone" of the provision, but also it must be regarded as inequitable. Anyway, the restrictive construction with such vagueness would make rather ineffective the protective function involved in providing of the constituent elements of the crime, and would even raise a doubt that such a construction violates Article 31 of the Constitution which requires the definiteness of the constituent elements of the crime.

In this connection, it is a matter of course that the conducts of inciting, etc., the collective activities performed by public officials which are estimated substantially as a mere violation of discipline in the light of their forms and types do not fall within the purview of the constituent elements of the crime laid down in Item 17, Paragraph 1, Article 110 of N.P.S. Law, and it is needless to say that even the conducts which fall within the purview of the constituent elements of the crime laid down in the same penal provision may lack the criminal illegality under certain circumstances where such conducts are regarded as permissible in the spirit of the whole system of legal order. Assuming that there are some cases where it is not proper to prohibit acts of dispute, or to punish the conducts of inciting, etc., acts of dispute, of the public officials whose kind and substance of service bears low degree of public character, and whose acts of dispute do not bring serious obstacles to the common interest of the whole people, the measures against such acts or conducts are regarded as the legislative questions to be carefully considered in the legislature, as well as the question of whether it is proper to permit those who performed such acts and conducts to retain the status as public official.

The principle laid down in the judgment of this Court upon what is called D Case (grand bench judgment upon Case (A) No. 1129 of 1966, decided on Apr. 2, 1969, Crim. Rep. vol. 23, No. 5, p. 685) must be altered to the extent that it is in conflict with the principle laid down in this judgment.

Consequently, it is, after all, just and proper for the judgment below to have applied Paragraph 5, Article 98 and Item 17, Paragraph 1, Article 110 of N.P.S. Law to the conducts mentioned above of the defendants. We cannot agree to the contention, based on the view different from the above-stated, that there exists an error in construction or application of law in the judgment below, and the precedents formed in the judgments of the High Courts mentioned above which are in conflict with the judgment of the court below must be altered. As the result the contention on this point does not afford any basis for the reversion of the judgment below.

Concerning Items 7, 8 and 9 of the same:

The contentions are, in all, the assertions of errors in fact-finding or in construction or application of law and do not satisfy the requirements for the legitimate reasons for Jokoku appeal.

Concerning Item 10 of the same:

The contention, in short, standing on the premise that the acts of dispute performed by public officials for political purposes are also guaranteed by Article 28 of the Constitution, asserts that the judgment below committed error in the construction of Articles 21, 28 and 31 of the Constitution, in holding that what is called "a political strike" is not exempted from criminal sanctions because they deviate from the legitimacy of acts of dispute guaranteed by Article 28 of the Constitution.

However, it is by no means possible to admit that in case of public officials there are some acts of dispute permitted in N.P.S. Law, without regard to whether they are performed for economic or political purposes. Such a construction does not violate the Constitution. Accordingly, the assertion of unconstitutionality mentioned above lacks its premise and does not satisfy the requirements for the legitimate reasons for Jokoku appeal. [in this connection, it is naturally irrelevant to the guarantee of Article 28 of the Constitution to perform acts of dispute for political purposes, such as for the opposition to the amendment of the Police Duties Execution Law which has no direct relationship to the claim against the employer for the improvement of economic status of the workers, without distinction of whether they are the workers of private enterprises or the rest of workers including public officials. Actually, "the Committee on Freedom of Association" of International Labor Organization (I.L.O.) states, regarding the complaint relating to the Police Duties Execution Law, that "the Committee considers that the complainants have not offered sufficient proof to show that the proposed Bill, if enacted, would infringe trade union rights and, therefore, recommends the Governing Body, having regard to the specific statements by the Government, to decide that these allegations do not call for further examination" (Case No. 179, Paragraph 187 of the Fifty-fourth Report). "Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public Sector in Japan" (what is called the Dreyer Report) also expresses the general view that "in accordance with the general principles followed by the International Labor Organization in the examination of allegations relating to trade union rights, while situations which are political in origin may have social aspects which the International Labor Organization may be called upon to examine by appropriate procedures, it is inappropriate for the International Labor Organization to discuss political questions directly related to international security, as it would be inconsistent with its traditions and prejudicial to its usefulness in its own sphere" (Paragraph 2130).]

Concerning No. 1 to No. 3 of Item 11 of the reasons for Jokoku appeal submitted by Defence Counsel Naoto Kobayashi:

The gist of the contention is that it is against Articles 31, 28, 18 and 21 of the Constitution that the judgment below applied Item 17, Paragraph 1, Article 110 of N.P.S. Law to the defendants' conducts concerned which are socially appropriate, without making any restrictive construction of the same provision.

However, it is clear, according to the opinion concerning Items 1, 3 and 5 of the reasons for Jokoku appeal submitted by Defence Counsel Yoshiya Sato and three others and according to the purport of the explanation concerning Item 6 of the same, that the above provision of N.P.S. Law, even not making any restrictive construction, does not violate the above Articles of the Constitution. The contention, consequently, is without merit.

Concerning No. 4 of the same:

The contention that the acts of dispute concerned do not fall within the purview of the constituent elements of the crime because of their social appropriateness as what is called the strike for political protest is the mere assertion of an error in construction and application of law and does not satisfy the requirements for legitimate reasons for Jokoku appeal.

Concerning No. 5 of the same:

The gist of the contention is that the penal provision of Item 17, Paragraph 1, Article 110 of N.P.S. Law is invalid, violating Articles 31 and 21 of the Constitution, to the extent that it is applied to the defendants' conducts concerned because of the social appropriateness of the protest strike concerned as an exercise of "the freedom of expression" guaranteed by Article 21 of the Constitution.

However, in the light of the purport of the opinion stated concerning No. 1 to No. 3 of the same, it is clear that the above provision of N.P.S. Law does not violate Articles 31 and 21 of the Constitution and consequently the contention is without merit.

Concerning the reasons for Jokoku appeal submitted by each of the defendants:

The contentions are, in all, the mere assertions of an error in fact-finding or an error in construction or application of law and do not satisfy the requirements for the legitimate reasons for Jokoku appeal.

Accordingly, each Jokoku appeal is hereby dismissed pursuant to Articles 414 and 396 of the Code of Criminal Procedure, and the judgment is rendered as described in the main text.

Aside from the supplemental opinions of Justice Kazuto Ishida, Justice Tomokazu Murakami, Justice Ekizo Fujibayashi, Justice Masao Okahara, Justice Takeso Shimoda, Justice Seiichi Kishi and Justice Buichi Amano, and the opinions of Justice Makoto Iwata, Justice Jiro Tanaka, Justice Kenichiro Osumi, Justice Kosato Sekine, Justice Nobuo Ogawa and Justice Yoshikatsu Sakamoto, this judgment is based on the concurrence of all Justices, except Justice Kotaro Irokawa who writes a dissenting opinion.



The supplemental opinion of Justice Kazuto Ishida, Justice Tomokazu Murakami, Justice Ekizo Fujibayashi, Justice Masao Okahara, Justice Takeso Shimoda, Justice Seiichi Kishi and Justice Buichi Amano (Justice Seiichi Kishi and Justice Buichi Amano state the additional supplemental opinion in addition to this supplemental opinion) is as follows:

We concur in the majority opinion. But the opinion of Justice Jiro Tanaka, Justice Ken-ichiro Osumi, Justice Kosato Sekine, Justice Nobuo Ogawa and Justice Yoshikatsu Sakamoto (hereinafter referred to as the opinion of five Justices) does not understand the real meaning of the majority opinion and criticizes it with an improperly exaggerating expression. We are afraid of making the readers grossly misunderstand our opinion, and so we dare to supplement some opinion.

1 The opinion of five Justices criticizes the majority opinion with the misunderstandings that it would admit the constitutionality of the prohibition of the acts of dispute carried out by public officials (in the sense of the national public officials who engage in the services other than the governmental enterprise activities; hereinafter the same) on the sole basis of Paragraph 2, Article 15 of the Constitution which provides that public officials are servants for the whole community; that it would justify the prohibition of the acts of dispute of public officials on the sole ground of speciality of the process for determining their working conditions; and further that it would stand on the easy view that the prohibition of their acts of dispute is not unconstitutional so far as the system of compensation measures is established. However, the majority opinion, admitting that public officials are as a general rule involved in the workers guaranteed the fundamental rights of workers of Article 28 of the Constitution, takes into consideration the public character of the services of public officials and the speciality of their status in contrast to the workers in private enterprises, and stands on the basic viewpoint that balance and harmony should be achieved between the fundamental rights of workers and the common interest of the whole people including public officials, and, putting together various reasons stated there, holds that the regulations regarding the labor relations of public officials laid down in the National Public Service Law (hereinafter referred to as N.P.S. Law) cannot still be deemed as unconstitutional. Moreover the opinion of five Justices goes so far as to say that the majority opinion makes Paragraph 2, Article 15 of the Constitution a "negative principle" with regard to the public officials' fundamental rights of workers, and criticizes it with extremely sharp expressions, saying that it construes the above paragraph "as the provision imposing on public officials the duty of absolute obedience to the whole people as employer, or to the governmental agencies representing or acting for the whole people"; or that "such a construction is the idea which identifies the relationship between the whole people and public officials almost with the relationship of whole personal obedience and protection similar to the relationship between the monarch and the vassal under the feudal system"; or further that the majority opinion regards the fundamental rights of workers guaranteed by Article 28 of the Constitution "as improper in themselves because they are against a sort of allegiance duty", being "inconsistent with the basic principles of the Constitution intending to guarantee the fundamental human rights to all people". But where in the majority opinion does it assert such an anachronistic thought lurks ? Needless to say, it will be easily understood, when one reads the majority opinion calmly and frankly, that it neither "deal (s) with (the matter) uniformly under the abstract and idealistic standard" from the pre-modern viewpoint existed in the era when the affairs of state were limited to military affairs, public peace and order, financial affairs and so forth, and that nor is it based on the abstract and formal, public welfare theory, or public servant theory.

2 The opinion of five Justices, while admitting that no one disputes that the public character of the substance of the duties of public officials is the substantial reason for the restriction of their acts of dispute and admitting that it cannot be negated that to permit their acts of dispute without restriction in the process of determination of the working conditions of public officials might distort the democratic political process, states that none of these reasons suffice to approve the justifiability of prohibiting any act of dispute, and that it should consequently be approved that public officials "exercise their influencing power on such matters as the determination of the standards for working conditions to be fixed by legislation, by means of collective activities except collective bargaining". Further it states that, since the compensation measures are, in any sense, no more than the compensation measures, "political or social activities other than legal compulsions are necessary for having the Government or the Diet take measures for the acceptance of the advice (of the National Personnel Authority)"; that "such activities ultimately requires the support and cooperation of public opinion"; and that "we cannot entirely deny the necessity for the collective activities of public officials as the sole effective measures for the rouse of public opinion". By saying so, the opinion of five Justices purposely makes light of the existence of the compensation measures as a national system established for the guarantee of the interests of public officials who are prohibited from performing any act of dispute, and emphasizes the necessity for the collective activities of public officials aiming at the direct political effect on the legislature or the public opinion. Though the meaning of "collective activities" here referred to by the opinion of five Justices is not necessarily clear, it is not recognized, judging from the context of the opinion, that the term means the collective activities as the activities for mere expression, but it is considered that it means no more than the collective activities in Article 28 of the Constitution. Moreover, judging from the conclusion of the opinion that the collective activities "should naturally be excluded from the objects of criminal punishment", we must understand that the opinion refers to the acts of dispute of public officials for which penal provisions are laid down. If it is the case, we must conclude that the opinion of five Justices emphasizes the necessity for the acts of dispute of public officials as the demonstrative activities to the legislature or the society in general. It is true that the opinion of five Justices does not urge the necessity for the acts of dispute for achieving purely political purposes. But, in cases where the purposes of the acts of dispute carried out by the workers' organizations are related to the matters which the employer cannot dispose of actually or legally, such acts of dispute are by no means guaranteed by Article 28 of the Constitution, and therefore the acts of dispute as collective activities of public officials referred to by the opinion of five Justices are, in substance, not different at all from what is inclusively called "political strike". Especially that the opinion of five Justices urges the necessity of "political activities" other than legal compulsions is quite the same as to urge to permit public officials to carry out "political strikes", in addition to the activities for expression as collective activities, as constitutionally justifiable acts of dispute. We must say that such a result is clearly in conflict with the opinion of five Justices that the conducts concerned are not included within the limit of the guarantee of Article 28 of the Constitution because they are the acts of dispute for political purposes. Adding a few words, in relation to the fact that the opinion of five Justices emphasizes, as mentioned above, "political activities" other than legal compulsions as acts of dispute, we must refer here to the warning comment of what is called the Dreyer Report that "the nature of the political activities followed by the central organizations of Japanese workers has indeed been another major disturbing factor in labor relations" (Section 2127).

3 The opinion of five Justices criticizes that it is impossible to find out the necessity and the understandable reasons why the majority opinion must intentionally express the constitutional opinion different from the construction of the majority opinion of the grand bench judgment upon what is called D Case (grand bench judgment upon Case (A) No. 1129 of 1966, decided on Apr. 2, 1969, Crim. Rep. vol. 23, No. 5, p. 685; hereinafter referred to merely as Judgment upon D Case), in dealing with this case. But, since the reasons for Jokoku appeal put forth by Defense Counsel include a variety of assertions of unconstitutionality, and since Defense Counsel assert that the judgment below has been formed incompatible with the judicial precedents of the High Court, by pointing out the conflicting judgments of the High Courts relating to the main problem concerning on which the majority opinion and the opinion of five Justices differ, the Court is naturally obliged to inquire into the propriety of the judgment upon D Case in deciding on the problems, and further, as the opinion of five Justices concurs in the conclusion of the dismissal of the Jokoku appeals concerned, they should express their opinion about all the items of the reasons for Jokoku appeal. Such an opinion as five Justices express that the Court should not refer in this case to the judgment upon D Case is the same as to say that the Court should avoid the decision on the fundamental problems to patch things up for the moment, and we cannot agree to it at all. Now, we point out a few additional reasons why the majority opinion is obliged to refer to the judgment mentioned above, and further estimate its value as a precedent.

(1) First of all, we must point out that the judgment upon D Case committed an error which cannot be ignored concerning the construction of the Constitution. Namely, the majority opinion of the grand bench judgment upon what is called E Case (grand bench judgment upon Case (A) No. 401 of 1966, decided on April 2, 1969, Crim. Rep. vol. 23, No. 5, p. 305; hereinafter referred to merely as "Judgment upon E Case) whose fundamental standpoint is common with that of the judgment upon D Case, while admitting that the services of public officials are, in general, of high public character, holds that it is not permissible to prohibit uniformly the acts of dispute of public officials, as there are still some kinds and substance of services that are similar to those of private enterprises. The opinion, however, disregards the reality that the acts of dispute of public officials are carried out generally as an organized and group collective activities joined not only by those engaging in the mere mechanical works, but also by the great majority of the personnel whose services are of highly public character, and moreover, it develops a theory merely in an abstract manner, without paying attention to the existence of the compensation measures for the protection of the right to live which is guaranteed uniformly to the public officials irrespective of the kinds and substance of services, and without having an insight into whether the result of the decision actually holds good at all. Namely, the judgment upon E Case easily concludes that doubt exists as to the constitutionality of the provisions concerned of the related public service laws which restrict or prohibit the acts of dispute carried out by public officials. The judgment upon D Case, too, is identical with it in logical construction. It should be noted that such a way of construction of the constitution tends to give absolute priority to the fundamental rights of workers, being oblivious of the pivot of the construction of the constitution to adjust the conflicting various constitutional interests between the state and the people, and between one group of the people and another group of the people, on the social and economic grounds of the time. Incidentally, the opinion of five Justices criticizes the majority opinion, saying that the "uniform and entire" prohibition of the acts of dispute is unjustifiable, but, as the majority opinion points out, the matter of the prohibition of the acts of dispute which do not bring serious obstacles to the common interests of the whole people because of not high degree of the public character of the kind and substance of the service should be considered carefully as a legislative matter of labor policy. In this connection, in West Germany, the governmental officials among all the employees in the public sector are prohibited the strike, but the life tenure system and a kind of promotion system, instead, have been implemented under the principle of "working conditions established by law", while the employee and simple labor staff who engage in a certain special services are allowed to strike. In the federal state of Canada, Commonwealth of Pennsylvania and State of Hawaii, the public officials engaging in unimportant services are allowed to strike, but the principle is that the third party organization decides whether the service is important. In foreign countries, no legislative examples are found that lay down such a vague standard for the justifiability of the acts of dispute of public officials as whether they bring "serious hindrance to the life of the people", which has been expressed in the judgment upon D Case. Adding a few words, in the federal state of Canada, even when the strike is chosen under the alternatives of arbitration procedure and strike, it is permitted with the condition that strict conciliation procedure should be followed in advance, and the strike carried out without following the procedure is prohibited. In the two states mentioned above in the United States where strike is allowed, a quite similar system has been established. It should be especially noted that, admitting some difference among nations, the strike of public officials engaging in unimportant services is allowed, not unlimitedly, but under strict restrictions.

Secondly, we must point out that a serious doubt is cast upon the restrictive construction given by the judgment upon D Case. Namely, the judgment upon E Case mentioned above which holds the fundamentally common view with the judgment upon D Case, on one hand, emphasizes the theoretical viewpoint that, since the degree of public character differs among the services of public officials, the fundamental rights of workers of public officials naturally involve the restrictions corresponding to the public character of their services, while, on the other hand, in putting the restrictive construction, it does not take the public character of the services into consideration at all, but, instead, changes its course to the matter of the type and form of acts of dispute by saying that "there are various types and forms of acts of dispute", and establishes the vague standard of whether the illegality of the act of dispute is high or low. (The opinion of five Justices should naturally set up a definite standard for the distinction in relation to the "subjects" of the acts of dispute, as it criticizes the majority opinion's approval of the complete prohibition of the acts of dispute of public officials without considering the distinction of the "subjects" of the acts of dispute. The fact that such a definite standard is not set up in the opinion of five Justices may indicate that it is practically almost impossible to make such a distinction, even if it may be possible as an abstract theory, in the light of both the structure of the employee organizations and the present circumstances of the acts of dispute under the present system of public officials.) Above all, the judgment upon E Case rules that both high illegality of the act of dispute itself and high illegality of the conduct of inciting, etc., are necessary for laying down or applying the penal provisions regarding acts of dispute, and besides holds that "the conducts which ordinarily accompany" acts of dispute should not be regarded as the object of punishment. Now the majority opinion of the judgment upon what is called A Case (grand bench judgment upon Case (A) No. 296 of 1964, decided on Oct. 26, 1966, Crim. Rep. vol. 20, No. 8, p. 901; hereinafter referred to merely as the judgment upon A Case) mentions "the acts of dispute which are carried out for political purposes", "those which are accompanied with violence", and "those which bring serious obstacles to the life of the people such as those extending over an unjustifiably long time in the light of the common sense in the society", as the standard for determining the justifiability of the acts of dispute, and holds that, except these acts of dispute, the acts of dispute are justifiable ones guaranteed by the Constitution. And the judgment upon D Case diverts the same standard as is mentioned above, without any modification, as the standard for determining the high illegality of the acts of dispute. Namely, it mentions, as the requirements for punishing the conducts of inciting, etc., "that the acts of dispute themselves are carried out in the way of deviating from the original purpose of the employee organization; that they are accompanied with violence or other similar unjustifiable pressures; or that they bring serious obstacles to the life of the people such as extending over an unjustifiably long time against the common sense in the society". Whether the acts of dispute are justifiable or not is the question of whether illegality exists or not, while whether illegality is high or low is the question which presupposes that illegality exists, namely, that justifiability does not exist. And, since whether the here mentioned justifiability exists or not is not simply the decision in "the dimension of criminal law", but the question in the dimension of constitutional law, namely, whether the acts of dispute are guaranteed by Article 28 of the Constitution, the acts of dispute are immune to any civil or criminal sanction at all so far as they deserve the guarantee of the Constitution. However, the judgment upon D Case adopts, as the standard for determining whether illegality of the acts of dispute is high or low, the same standard for determining the justifiability of the acts of dispute that the judgment upon A Case set out in order to avoid the ruling of unconstitutionality from the viewpoint of whether constitutional guarantee should be given or not. Here we notice the confusion of legal thought. Setting it aside, as the additional supplemental opinion of Justice Kishi and Justice Amano points out, such a standard is so vague enough as the constituent elements of the crime of the penal provisions as to raise rather a doubt on its constitutionality, and moreover such a standard can hardly be appropriately established in the process of the accumulation of the precedents. In this regard, the opinion of five Justices on one hand states that whether the conducts of inciting, etc., the acts of dispute of public officials are punishable or not in the light of the standard laid down in the judgment upon D Case should be determined case by case by taking concrete factual situations into consideration and admits that these conducts may be punishable in compliance with the penal provisions of N.P.S. Law, but on the other hand, comparing the case of the violation of public service laws with the cases of the acts of dispute of the employees of public corporations or the workers in private enterprises, it states that the former are a question of existence of the constituent elements of the crime and the latter a question of lack of illegality, and further takes the trouble to mention that "it is not appropriate to deal with (the matter) upon the theory of lack of illegality in the dimension of the criminal law" which is really a matter of course, and by mentioning it, criticizes the majority opinion as if it committed an error. Nevertheless, we have difficulty in understanding the real meaning which this part of the opinion of five Justices intends to express.

Thirdly, we must point out that the confusion in the fields of labor, executive or judicial administration resulting from the judgment upon D Case cannot be ignored as well as the doubt on the construction of the Constitution in the same judgment. Namely, for example, the judgment upon E Case rules that "those who carried out the conducts of inciting, etc., with the expectation of the illegal acts of dispute are not relieved from criminal liability for the conducts of inciting, etc., even if the expected illegal acts of dispute are not carried out." However, since the penal provision of Item 17, Paragraph 1, Article 110 of N.P.S. Law does not purport to punish the conducts of inciting, etc., with strict liability, it may follow that in cases where a performer incites, and so on, the acts of dispute with the expectation of the act of dispute of low illegality, but in spite of his expectation the acts of dispute "extend over an unjustifiably long time against the common sense in the society and bring serious hindrance to the life of the people," any criminal liability could not be cast upon him, so far as the view of the judgment upon D Case were accepted. Moreover, considering in conformity with the reality of acts of dispute, there could not be any conduct of inciting, etc., that is highly illegal in itself, because acts of dispute are, ordinarily, performed exactly according to the order of the dispute leader. This indicates that under the construction mentioned above of the same judgment the above provision of N.P.S. Law would scarcely function effectively in reality, so that, after all, it might possibly result in that the acts of dispute of public officials are left to take their own course. Furthermore, also the above-mentioned standard which the same judgment sets out is, in itself, lacking in objectivity, and it is quite hard to grasp it. We can not consider at all that, different from the opinion of five Justices, the above-mentioned judgment has taken roots among the general public. The sharp criticism that the standard is so vague that it may possibly be exposed to the arbitrary, subjective construction of a decision-maker has been raised not only in the argument of this case by Defense Counsel, but also already both by those who support the judgment upon what is called A Case and by those who are against it. Since the judgment upon D Case affirmed that there are some cases where penal provisions are applied to the conducts of inciting, etc., the acts of dispute of public officials, it should have fixed a definite standard.

Further, fourthly, we must point out that both the judgment upon D Case and the judgment upon E Case which stands on the same ground as the former case, coupled with the judgment upon A Case, have given a misleading evaluation to the general public about the application of the penal provisions relating to the acts of dispute of public officials. Namely, the judgment upon E Case exactly follows the ruling of the judgment upon A Case, with regard to what is called the immanent restriction on the fundamental rights of workers, that "(strikes and delayings,) generally speaking, should not be treated with criminal sanction." ((3) of what is called four conditions of the same judgment, ref. Crim. Rep. vol. 20, No. 8, p. 907.) Moreover, the judgment upon D Case which followed the purport of the judgment upon E Case ruled that Item 17, Paragraph 1, Article 110 of N.P.S. Law may possibly violate Articles 18 and 28 of the Constitution unless it is restrictively construed, and has given the general public a wrong understanding that "it has released the acts of dispute of the workers who are public officials from criminal punishments". It must be noted that, after all, it results from both the vague restrictive construction of the judgment and its wrong attitude on the construction of laws. (Actually, while the opinion of five Justices admits that there are some cases where the penal provisions are applicable to the conducts of inciting, etc., the acts of dispute of public officials, it nevertheless criticizes as if only the majority opinion approved severe criminal sanctions against the acts of dispute of public officials.) Adding a few words, Report of the Committee of Experts on the Application of Conventions and Recommendations submitted to the 52nd Session of the I.L.O. General Assembly concerning I.L.O. Convention No. 105, (which our country has not ratified yet,) quoting the report of the Conference Committee having deliberated on the draft Convention, which indicates the concluded agreement that "in certain circumstances penalties could be imposed for participation in illegal strikes" and that "these penalties might include normal prison labor" and so forth, states that "in its evaluation of the varied national legislation concerning strikes, the Committee has considered it appropriate to take due account of these indications concerning the intentions of the Conference" (Paragraph 94. cf. Paragraph 95).

(2) Next, can it be said that a majority opinion in true sense ever exists in the judgment upon D Case ? The opinions of eight Justices who appear to compose the majority in the judgment concur only on the point of the ruling that the provisions concerned of N.P.S. Law are not unconstitutional "so far as they are restrictively construed." In addition, looking into the contents of what is called the restrictive construction, six of eight Justices adopt the high-or-low-illegality theory and the ordinary-accompaniment theory of the conducts of inciting, etc., while other two Justices express the negative opinion regarding the high-or-low-illegality theory, and besides, the opinions as to "the ordinary accompaniment" differ between the two Justices. Accordingly, although they concur on the point that the restrictive construction should be adopted, it is in itself entirely without content, and the single opinion of the majority Justices does not exist, as the content as to the restrictive construction which they mention is diverse. It must be noted that the executive and judicial confusion as mentioned above, after all, largely results from the fluidity and vagueness of the judgment above, as well as the judgment upon A Case and the judgment upon E Case which are based on the same ground, and that the judgment upon D Case is also lacking in leading character as a precedent. While, at present, the majority opinion in this case is unanimous as to the construction of the Constitution and N.P.S. Law, as stated above, the opinions of other Justices who do not concur in the majority opinion are, not only formally minority in number, but also diverse in content as to the construction of N.P.S. Law. Above all, since the opinion of five Justices is dismissal of Jokoku appeal in this case, it would be illogical at all to maintain today what is called the ordinary-accompaniment theory adopted in the judgment upon D Case, and if the ordinary-accompaniment theory were to be adopted, the conclusion would logically be rather opposite. Only this point is enough to conclude that the five Justices themselves, consciously or unconsciously, have altered the view of the judgment mentioned above. Consequently, the judgment upon D Case cannot function at present as "a precedent" in any sense, and we must say that it is the natural course of matters that the above judgment should be altered. The opinion of five Justices states that "to alter the prior constitutional construction by a majority of a few vote is likely to arouse doubt upon the stability of the constitutional judgments of the Supreme Court, and further to lower its authority and leadership, (etc.)", but it is merely a baseless criticism and we must firmly refute it.

The additional supplemental opinion of Justice Seiichi Kishi and Justice Buichi Amano is as follows:

1 First of all, although the majority opinion stands on a viewpoint that the workers referred to by Article 28 of the Constitution includes public officials (here referring to the national public officials who do not engage in enterprise activities, hereinafter the same), it holds that, taking into consideration the speciality of the status of public officials and the public character of their services, it cannot be concluded that the provision of Paragraph 5, Article 98 of the National Public Service Law (the law prior to the amendment by the Law No. 69 of 1965, hereinafter referred to as N.P.S. Law) violates Article 28 of the Constitution, for, under the present legal system regarding the regulation on the labor relationship of public officials, the working conditions of public officials have been prescribed by law, and their status has been guaranteed, and furthermore proper compensation measures have been established.

It has often been emphasized by what is called the Dreyer Report and by the I.L.O. Committee on Freedom of Association that it is very significant to establish compensation measures for the prohibition of the acts of dispute of workers in general, and it is not too much to say that there are too many examples of such emphasis to mention. It has also been pointed out that proper compensation measures are necessary for the prohibition of the acts of dispute of public officials (Paragraph 284 of the 76th Report of the Committee on Freedom of Association, Case No. 294; Paragraph 79 of the 78th Report of the same Committee, Case No. 364, etc.). However, it seems that the existence of compensation measures is apt to be thought little of, in our country, in the discussions on the prohibition of the acts of dispute of public officials. But it is the compensation measures that are the realistic system by which the nation protects the interests of public officials who are prohibited from carrying out acts of dispute, and that are the powerful prop for keeping the prohibition of the acts of dispute of public officials from the ruling of unconstitutionality. Hence such measures should be capable of fulfilling their protective function sufficiently and should be administered in such a way. Consequently, it goes without saying that the authorities should not easily adopt the restriction of the prohibition of the acts of dispute of public officials merely because this system exists. In cases where the compensation measures do not fulfill the original function promptly and fairly, and actually become almost a nominal existence, even if public officials resort to the acts of dispute in the way and form not exceeding the limits regarded as proper, demanding the normal administration of the system, it should be considered that such acts of dispute are constitutionally guaranteed. Consequently, there is no reason why any sanctions or disadvantages should be imposed on the public officials merely because they carried out such acts of dispute, and it must be considered that it violates Article 28 of the Constitution to punish those who incite, and so on, such acts of dispute by applying Item 17, Paragraph 1, Article 110 of N.P.S. Law to them.

Nevertheless, since whether the compensation measures fulfill their function sufficiently or not depends on the earnest efforts of all the related people administering them, as is the same with regard to any other national system, it goes without saying that we should not hastily reach the conclusion that the system does not fulfill its original function, when it is recognized that authorities have sincerely done what they can do legally and actually, even if they do not accept all that is demanded.

What is stated above is not especially referred to by the majority opinion, but we think it a natural, theoretical conclusion from the standpoint of the majority opinion.

2 Next, the majority opinion states that the restrictive construction made by the judgment of the Fukuoka High Court (judgment upon Case (U) No. 728 of 1966, decided on Apr. 18, 1968) as to Item 17, Paragraph 1, Article 110 of N.P.S. Law impairs the definiteness of the constituent elements of the crime, and that it is doubted to violate Article 31 of the Constitution. We are of opinion that the above restrictive construction not only clearly violates Article 31 of the Constitution, but also even exceeds the limit of the permissible restrictive construction. Namely, the same judgment, construing restrictively the above provision of N.P.S. Law, states that inciting the acts of dispute become the object of punishment only in cases where the acts of dispute are of high illegality, such as those carried out for political purposes, those accompanied with violence, or those accompanied with clear concrete danger of bringing serious obstacles to the life of the people, and the incitement itself is made with highly illegal conducts. And it shows nearly the same view as the majority opinion of the grand bench judgment of this Court upon what is called D Case has expressed.

What is called the restrictive construction employed in the cases involving constitutional issues is employed for the measures of approving the constitutionality of the provision concerned by construing the provision of law restrictively, when the regulation of law on the constitutionally guaranteed rights is so broad that it raises doubt of unconstitutionality, and if such restrictive construction can be given without being in conflict with the legislative purpose. And even if the restrictive construction alters a part of the content of the provision, such an alteration is permissible, so far as it remains within the range of reasonable construction of law. But the alteration which would almost rewrite the provision entirely should not be permitted because it invades the legislative power. Furthermore, when the construction makes the constituent elements of the crime vague, it is against the principle of nulla poena sine lege originating in Magna Carta, which purports to state the standing rules for the behavior of the people by informing them in advance of what deed constitutes a crime and what punishment is imposed for it, and also purports to protect the human rights of the people against the arbitrary exercise of the authority to punish. It not only violates Article 31 of the Constitution, but it is also against the idea of democratic state which put the governmental authority under the rule of law and which will realize the society of the rule of law, expecting the law-abiding mind of the people. With regard to this matter, it has been said that also both in Great Britain and in the United States of America where the continental theory of the constituent elements of the crime does not exist, the court achieved the same effect as to declare substantially the invalidity of a certain law or ordinance, in each specific case, by means of refusal of application of a certain law or ordinance by reason of vagueness of the provision on the common law principle of rigid construction. Especially in the United States of America, already a century ago germinated the theory invalidating a provision by reason of its vagueness, and since the 1900's what is called the theory of definiteness has been established up to now as a case-law that declares invalidity of a vague provision by reason of violation of due process clause provided by the Fifth, Sixth and Fourteenth Amendments of the Constitution, on the ground that it is necessary to inform the people fairly and in advance of the laws and ordinances concerning the standing rules for the behavior of the people, and on the ground that the provisions should be clearly prescribed for that purpose.

It is a matter of course that the definiteness of a provision should be required especially emphatically as to the regulations on the exercise of constitutional rights or as to the legal provisions regarding the fundamental rights and liberties of the people such as penal provisions.

The above judgment of the Fukuoka High Court refers to "serious obstacles to the life of the people", as one of the standards to determine whether the illegality of the acts of dispute as the object of incitation is high or low. Similarly the majority opinion of the judgment upon D Case mentions "serious hindrance to the life of the people such as extending over an unjustifiably long time against the common sense in the society". However, the standard such as serious obstacles or hindrance to the life of the people is so vague and so abstract that what degree of obstacles or hindrance is deemed as serious depends upon the subjective, or sometimes arbitrary determination of those who decide it. Consequently, we must conclude that such an elastic and flexible standard makes the outline and content of the constituent elements of the crime of the penal provisions too vague. Besides, though an illustration of "such as extending over an unjustifiably long time against the common sense in the society" is referred to, as in the majority opinion of the judgment upon D Case, what length of continuation of time is deemed as unjustifiable should also be considered as a very vague element, and in addition, the fact that the general clause "in the light of the common sense in the society" is included in the constituent elements of the crime rather simply increase the vagueness. Consequently, the people who are given such a standard cannot predict whether their own conducts do not exceed the limit and are permissible; even private attorneys, public procurators, and judges, who are all legal experts, are at a loss to discover the objective standard for determination (ref. the judgment of the Tokyo High Court upon Case (U) No. 2605 of 1966, decided on Sept. 6, 1967, what is called A Case after remanded by the Supreme Court, High Courts Criminal Report, vol. 20, p. 526); the limit of the application of the penal provision cannot be determined, and also the limit between criminal sanction and civil or administrative sanction is vague; and the stability and the certainty of law are greatly impaired. It is today's actual circumstances that the interpretation of the standard of "serious obstacles to the life of the people" has been diverse and lacking in uniformity among the judgments of the trial courts. Furthermore, though such a restrictive construction appears as if it limited the scope of the cases to which the penal provisions are applied, it cannot necessarily be said that such an abstract standard as is set out in the above restrictive construction would not work to the direction entirely opposite to that which the above judgments intended, for the vagueness of a provision entails the danger of treading a path to the arbitrary construction of law.

Indeed, one would refute that the establishment of the clear standard is to be achieved with the future accumulation of precedents. The Federal Public Service Staff Relations Act in Canada, the Pennsylvania Public Employee Labor Relations Act and the State Statute of Hawaii in the United States of America, at present, prohibit only the public servants engaging in the important services from carrying out acts of dispute. Against the criticism on these legislations that it is difficult to distinguish important services from unimportant ones, some argue that the solution by means of the accumulation of the precedents of the courts is most preferable. However, it appears in these legislations that the system for designation and determination of the important services by the third party agency has been established, by which, as a principle, the scope of the important public services is, primarily, formally determined, and that the court decides when dispute arises as to the designation and determination. Namely, these legislations restrict the scope of the public servants engaging in important services from the aspect of the subject, and not from the aspect of the type and form of the conduct. It should be noted that the clear establishment of the standards of the types and forms of the conducts such as whether serious obstacles to the life of the people exist or not cannot easily be achieved with the method of the accumulation of precedents.

The standing rules for the behavior of the people must be clearly set out, not at the time of adjudication but at the time of conduct. Such a standard as does not become clear until the final judgment is almost identical with the lack of a standard, and subjects the people to the unstable condition for a long time. People would be obliged to behave according to their own judgments, and, if so, the chaos of legal order will be utterly inevitable.

Needless to say, concerning the construction of the provisions of law including the constitutional issues, one must not fall into the formal understanding of the constitution in the closed field of view, being idly caught by the existing legal notions and legal techniques. Besides, in order to keep up with the fluidity and complication of the continuously progressing society, the constituent elements of the crime cannot always remain objective and descriptive notions, and it is also necessary for them to be deepened into normative notions including value elements. Further, it cannot be negated that the notions of the general clauses which originally developed in the area of the private law, such as justice and equity, trust and faithfulness, public policy and good morals, general view in the society, and so on, sometimes contribute to the discovery of the law applicable to the individual cases as a complementary principle for legal construction. However, to prescribe constituent elements of the crime too abstract and too general deprives of the function of law as the norm for conduct and the norm for adjudication, and much more, it must be avoided as far as possible to put the easy and handy general clause into the constituent elements of the crime. It is recalled in this connection that the warning assertion was made in the legal academy in Germany before the World WarII, pointing out with emphasis that the general clause had conquered the labor law with great ease just like playing a game, or that the general clause tends to surmount each constituent element of the crime, and so on.

When a provision of law is construed only in one meaning from the text, and at the same time it must be concluded that the provision prescribes the regulation which exceeds the necessary and minimum limit admitted by the constitution, the law must be regarded as unconstitutional even if the legislative purpose is constitutional. Though the restrictive construction mentioned above regarding Item 17, Paragraph 1, Article 110 of N.P.S. Law developed the detailed theory in order to avoid such a result, to our regret, it contains the grave doubts mentioned above on the real application of the theory, and besides the vagueness of the constituent elements of the same Article which resulted from its restrictive construction violates Article 31 of the Constitution, and further, we must conclude that the fact that it has made the provision almost meaningless contrary to the legislative purpose is identical with having entirely rewritten the text of the provision, which exceeds the limit of the restrictive construction.

The opinion of Justice Makoto Iwata is as follows:

My opinion as to the constitutionality of the provision of Item 17, Paragraph 1, Article 110 of National Public Service Law (the Law prior to the amendment by Law No. 69 of 1965, hereinafter referred to as N.P.S. Law) is the same as my opinion in the grand bench judgment upon Case (A) No. 1129 of 1966 of this Court decided on April 2, 1969 (Crim. Rep. vol. 23, No. 5, p. 685).

Accordingly, while it is the same as my opinion in the grand bench judgment mentioned above that whether Item 17, Paragraph 1, Article 110 of N.P.S. Law is applicable or not should not be determined according to whether the illegality of the acts of dispute carried out by public officials is high or low or according to whether the illegality of the conducts of inciting, etc., is high or low, I cannot agree to the opinion that the above provision does not violate Article 28 of the Constitution without construing it restrictively at all.

Considering the cases concerned from this viewpoint, according to the facts constituting the crime found in the judgment below, Defendants, the directing members of B Workers' Union, soon after the Cabinet introduced the bill for the amendment of a part of the Police Duties Law into the House of Representatives on October 8, 1958, carried out as a part of the Fourth Uniform Movement against it, the conducts of No. 1 and No. 2 described in the judgment below. Even if the above conducts of Defendants are carried out as collective activities of B Workers' Union, they are carried out for the political purpose of the struggle opposing to the amendment of the Police Duties Law, and not for the purpose of betterment for and improvement in the compensation or other working conditions of the members of B Workers' Union, and hence these conducts cannot be deemed as the exercise of the fundamental rights of workers guaranteed by Article 28 of the Constitution. Consequently, it must be concluded that all Defendants cannot escape from the criminal liability of the violation of Item 17, Paragraph 1, Article 110 of N.P.S. Law for attempting to incite acts of dispute or for inciting acts of dispute laid down in the same provision, irrespective of whether their conducts are what is called those which ordinarily accompany acts of dispute or not.

Attorneys for the Appellants also assert that both the judgment below which punished Defendants, applying Item 17, Paragraph 1, Article 110 of N.P.S. Law to their conducts, and the same provision itself, violate Article 21 of the Constitution. However, although expression of the opinion against the Bill for the amendment of the Police Duties Law, in itself, is permitted to anyone, and guaranteed by Article 21 of the Constitution, there are numbers of other legal means of expression in stead of resorting to acts of dispute, and it is not necessary to express it by means of such acts of dispute as those concerned here which exceeds the limit of the guarantee of Article 28 of the Constitution. Consequently, neither the provision of Item 17, Paragraph 1, Article 110 of N.P.S. Law which prescribes that punishment shall be inflicted for the conduct of inciting, etc., the acts of dispute which exceed the limit of the guarantee of Article 28 of the Constitution violates Article 21 of the Constitution, nor does the judgment below punishing the above conducts of Defendants violate Article 21 of the Constitution.

Accordingly, the judgment below declaring the guilt of Defendants on the ground that their conducts above violate Item 17, Paragraph 1, Article 110 of N.P.S. Law is, after all, just and right, and each of the Jokoku appeals of Defendants shall be dismissed.

The opinion of Justice Jiro Tanaka, Justice Ken-ichiro Osumi, Justice Kosato Sekine, Justice Nobuo Ogawa and Justice Yoshikatsu Sakamoto is as follows:

We concur with the majority opinion concerning the point that each Jokoku appeal shall be dismissed. But, concerning the reasons for it, we state as follows, and concur with the opinion of Justice Makoto Iwata. We cannot agree with the reasons expressed by the majority opinion.

1 The majority opinion, rejecting the contention for Jokoku appeal that Paragraph 5, Article 98 and Item 17, Paragraph 1, Article 110 of the National Public Service Law (the Law prior to the amendment by Law No. 69 of 1965, hereinafter referred to as N.P.S. Law) violate Article 28 of the Constitution, states that the provisions above do not violate the above Article of the Constitution without specially giving restrictive construction on them, and express on this point the view incompatible with that of the judgment of this Court upon what is called D Case (grand bench judgment upon Case (A) No. 1129 of 1966, decided on Apr. 2, 1969, Crim. Rep. vol. 23, No. 5, p. 685) which states that the restrictive construction is required to avoid the doubt of unconstitutionality of these provision. What the majority opinion in this case states seems fundamentally to be no more than some amplification and expatiation of the minority opinion in the above judgment. The majority opinion is summarized in no more than the following points:

(a)
Since public officials are servants of the whole community and the substance of their services is of public character, the acts of dispute of public officials are in conflict with the speciality of their status and the public character of their services, and result in delay or suspension of public services more or less, and exert or may possibly exert serious influence on the interest of the whole people.

(b)
The special characteristics of the determination of the working conditions lie in the fact that they are not determined by the agreement based on free bargaining between the workers and the employers, unlike the cases of private enterprises, but by the law and budget enacted by the Diet. Hence, that public officials exert influence on the determination with the pressure of acts of dispute may possibly distort the normal and democratic process of the determination.

(c)
The effective system of compensation measures has been established, corresponding to the prohibition of acts of dispute of public officials.

However, these reasons cannot give sufficient ground for affirming the constitutionality of the uniform and entire prohibition of the acts of dispute of public officials and of the imposition of criminal sanctions for all conducts of inciting, etc., acts of dispute. Namely:

(1) Paragraph 2, Article 15 of the Constitution which provides that all public officials are servants of the whole community has its significance chiefly in the point that public officials should not serve for the interest of a part of the people such as certain political parties or classes, and we cannot construe it as the provision imposing on public officials the duty of absolute obedience to the whole people as employer, or to the governmental agencies representing or acting for the whole people. Such a construction is the idea which identifies the relationship between the whole people and public officials almost with the relationship of whole personal obedience and protection similar to the relationship between the monarch and the vassal under the feudal system, and it is not in accord with the fundamental principle of the Constitution which comprehends the relationship between public officials and the Government as the legal relationship between the coordinate parties. Moreover, this idea which emphasizes the speciality of the status of public officials, in its nature, functions rather as a negative principle than as a restrictive principle with regard to the fundamental rights of workers, especially the right to carry out acts of dispute, and contains even the element inconsistent with the majority opinion itself which expresses that public officials are also fundamentally guaranteed the fundamental rights of workers of Article 28 of the Constitution. In other words, under such an idea, the acts of dispute of public officials, for example, would be apt to be regarded as improper in themselves because they are in conflict with a sort of allegiance duty, and to apply this view to public officials in general would be, as a rule, inconsistent with the basic principles of the Constitution intending to guarantee the fundamental human rights to all people, and is likely to be in sharp conflict especially with the purport of Article 28 of the Constitution. Therefore, it should be concluded that the ground for restricting the right of public officials to carry out acts of dispute should not be found in the speciality of their status as servant of the whole community.

Next, the majority opinion duly points out that the substance of the duties of public officials is, in general, the service for the public interest and that the negligence of the duties of public officials may possibly bring obstacles to the harmonious administration of the public service and injure the public interest. No one disagrees to it that this furnishes the substantial reason for the restriction on the acts of dispute of public officials. But clearly, it is logically inconsistent to conclude directly from it that it is justified to prohibit public officials uniformly from carrying out all acts of dispute and to impose criminal sanctions for all conducts of inciting, etc., these acts of dispute. In other words, so far as the injury to the public interest brought by the obstruction to the harmonious administration of public services constitutes the substantial reason for the restriction on the right to carry out acts of dispute, the substance and degree of the injury is naturally to be interrelated to the form and degree of the restriction on acts of dispute. For instance, there is no justification for the entire prohibition of even the acts of dispute which, formally, may delay or suspend public services temporarily, but which, substantially, cannot be regarded as being likely to obstruct the administration of public services, nor is there any justification for the imposition of criminal sanctions for the conducts of inciting, etc., these acts of dispute. In the era when the affairs of state were limited to the original sovereign activities to keep the continuation of the state in itself, namely, military affairs, public peace and order, financial affairs and so forth, it may have been impossible to deny the reasonableness of the entire prohibition of the acts of dispute of public officials, because, while those who engaged in such sovereign activities were limited in number, the negligence of public duties by them might possibly have immediately done harm to the security of the nation and society. However, at the present time, the affairs of state and local public entities have conspicuously expanded along with the development of the welfare states in the modern times; most of the affairs are occupied with general welfare administration and economic activities of public character; those who engage in these affairs have rapidly increased, and moreover, occupied the considerable part of all public officials; and such public officials have formed considerably large part of all workers. Consequently, public services are conspicuously various in substance and in character, and the influence of the obstruction to the administration of public services on the public interest is also diverse. In some cases, the influence of the obstruction to the administration of certain public services is not different in substance and in character from that of the delay or suspension of the business of the private enterprises which bear the character of the public interest, and the latter may possibly even bring more serious hindrance to the life of the people, depending on the degree of the delay or suspension. Consequently, it must be concluded that it is by no means possible to justify it constitutionally as a reasonable legislation uniformly to deal with all kinds of obstructions to the administration of public services under the abstract and idealistic standard of the injury to the public interest, and to prohibit all the acts of dispute of public officials irrespective of their subject, substance, form or degree, and further to impose criminal sanctions for all conducts of inciting, etc., these acts of dispute.

(2) The majority opinion duly points out that, since the compensation paid to public officials is a part of the expenditure of the revenue of the nation or the local public entities, the working conditions of public officials are closely connected with the finance, especially with the compilation of the budget of the nation and the local public entities, and that it is therefore necessary to place the determination of the working conditions under the observation or consent of the Diet or the assembly of the local public entities. However, it does not necessarily lead to the conclusion that it is necessary for all standards of working conditions to be determined by legislation, and that there is no room for the determination of the working conditions by means of the agreement based on the collective bargaining between the workers and the employer. Nor are there any grounds to conclude that it is intended by the Constitution. Item 4, Article 73 of the Constitution, which provides that the Cabinet shall administer the civil services in accordance with standards established by law, merely elucidates that the affairs with regard to the national public officials belong in the competence of the Cabinet and that the standards by which the Cabinet manages the affairs must be established by law and not by cabinet order, and it does not lay down as constitutional requirement that the standards for the working conditions, such as compensation, of public officials should be established in detail by law. It is not prohibited by the Constitution to establish the basic standards by law, to authorize, with a certain limit, broad discretion to the Cabinet as to the concrete implementation of the standards, and in addition, to establish a system for the determination of the working conditions of public officials by the collective bargaining with their representatives. Consequently, it can neither be concluded that the working conditions of public officials are, characteristically, not in harmony with the process of determination through the collective bargaining, nor that there is no room for justification of collective activities as the support for collective bargaining. Indeed, it is constitutional to set up by law all the abstract standards for working conditions of public officials. In our country, such a legislative policy is actually adopted, and detailed provisions are enacted concerning the standards for working conditions of public officials in the National Public Service Law and the laws relating to the compensation to public officials, and moreover, the right to bargain collectively is guaranteed to the organizations of public officials. But the right to make collective agreement is negated; there is very small room and scope for the determination of the working conditions through collective bargaining; and hence, the right of public officials to carry out acts of dispute is scarcely effective as the support for collective bargaining. We must admit that there is great difference in these points between public officials and workers in private enterprises. However, it does not necessarily follow that there is no room for the permissible exercise of influencing power by collective activities, nor that it is permissible to prohibit these activities thoroughly and to impose criminal punishment for any conduct of inciting, etc., these activities, merely because the right of public officials to carry out acts of dispute is in fact largely to be restricted in point of its substantial effect. The conducts of public officials to claim for the proper interests connected with their working conditions, to organize and to express their will in order to protect them, and to exercise the influencing power on the determination of the standards for working conditions and so on to be fixed by legislation by means of collective activities except collective bargaining, should naturally be excluded from the objects of criminal punishment, so far as the conducts are performed by proper means and stay within certain limits. The collective activities are, for the workers, almost the sole means for exercising such influencing powers, and it is the case even for public officials. The majority opinion points out that the acts of dispute of public officials for such purposes may possibly unduly distort the democratic political process relating to the legislation and the compilation of the budget and so on, but this argument cannot form a justifiable ground at all for the prohibition of any act of dispute and for the imposition of punishment for any conduct of inciting, etc., acts of dispute, granting that it holds good with regard to the harm resulting from the unlimited permission of the acts of dispute of public officials. In other words, while the harm of which the majority opinion is apprehensive may arise when public officials, for performing their demand, carry out and continue the acts of dispute which may possibly exert a serious influence on the life of the people, such a harm does not arise when the acts of dispute do not reach an extent. The question lies, in effect, simply in the means and extent of acts of dispute. Moreover, the majority opinion points out that the Government is not equipped with the countermeasures of what is called closure of work-place (lockout), but such countermeasures are meaningful merely as those taken against special and more than powerful acts of dispute. The fact that it is impossible to make use of lockout does not afford sufficient grounds to make all acts of dispute of the workers' side unjustifiable. Furthermore, some cases may be supposed where it is necessary to exercise influencing power by means of collective activities with regard to the problems not directly connected with legislation or budget, above all, with regard to the matters for which the collective bargaining is permitted. According to what is heretofore stated, we must conclude that the reason (b) above of the majority opinion does not afford sufficient justifiable grounds for totally prohibiting public officials from any act of dispute and for imposing punishment for any conduct of inciting, etc., these acts of dispute, either.

(3) The majority opinion duly points out that, under the present provisions of law, with regard to the working conditions of public officials, there has been established the National Personnel Authority independent of the Cabinet and a system for what is called the compensation measures has been provided to protect the proper interests of public officials from the considerably fair standpoint by means of advice and other activities of the Authority. However, such a system of compensation measures is necessary merely as the compensation, in the literal sense, for the restriction of the fundamental rights of workers, in case of imposing minimum restrictions on these rights of public officials from the viewpoint of protecting the interests in the life of the whole people, and the mere establishment of a system of compensation measures does not authorize to restrict the fundamental rights of workers. Moreover, as a matter of fact, the existence and activities of the National Personnel Authority does not always play a protective role for the proper interests relating to the working conditions of public officials so much as the exercise of the fundamental rights of workers; and especially the advice of the National Personnel Authority does not impose any duty of acceptance at all on the Government or the Diet. Accordingly, political or social activities other than legal sanctions are necessary for having the Government or the Diet take measures for the acceptance of the advice. Such activities ultimately require the support and cooperation of public opinion, and we cannot entirely deny the necessity for the collective activities of public officials as the sole effective measures for the rouse of public opinion. We cannot deny, either, that the same measures may be taken, in order to express claims of public officials as to the substance of the advice, also in the process of forming the advice of the National Personnel Authority. In short, the compensation measures are, in any sense, no more than the compensation measures, and there may be some cases, in connection with the administration of the present system of the compensation measures, where observation, criticism, claim, pressure and so on by the collective activities of public officials suited to the circumstances are necessary. We must conclude that it is utterly impossible to justify the total prohibition of the acts of dispute of public officials and the imposition of punishment for the conducts of inciting, etc., acts of dispute on the ground of the mere existence of a system of compensation measures.

(4) Incidentally, the majority opinion criticizes, in its statement of the reason, that the restrictive construction which the grand bench judgment mentioned above adopted concerning the provisions prohibiting public officials from carrying out acts of dispute and punishing the conducts of inciting, etc., these acts, disregards the letters of the law; that it is in conflict with the purport of the legislation; that the standard for restriction is so vague as to make ineffective the protective function performed by the definite setting of the constituent elements of the crime in the penal provisions; and consequently that there is a doubt that it violates Article 31 of the Constitution.

We do not deny that a criticism of vagueness in the substance and scope of the constituent elements of the crime has been cast upon the part of the view expressed in the above-mentioned grand bench judgment concerning the restrictive construction of the provisions of N.P.S. Law, in which the term of what is called the high or low illegality is used for the standard for the distinction of the punishable acts of dispute and conducts of inciting, etc., these acts of dispute from those which are not punishable. However, the view adopts the basic standpoint that it should be admitted in the light of the constitutional guarantee of the fundamental rights of workers, that there are some acts of dispute and some conducts of inciting, etc., these acts which are not to be made objects of punishment, and it sets up a standard that the acts of dispute carried out for the achievement of the original purposes of employee organizations are not to be made objects of punishment so far as they are not accompanied with violence and so on and do not tend to bring serious obstacles to the life of the people, such as to extend over an unjustifiably long time. We understand that the term of what is called the high or low illegality is used in this sense. The above view also purports that, regarding the conducts of inciting, etc., acts of dispute, only what is called the ordinarily accompanying conducts which are carried out merely as a link in the chain in the process of proposal, planning and performance of the acts of dispute which are based on the common will of the union members should be excluded from the objects of punishment, and purports that, consequently, the conducts of inciting, etc., acts of dispute which are carried out in an extraordinary way and form, or by the third persons, or under conspiracy of union members with the third persons are not regarded as the ordinarily accompanying conducts.

Therefore, whether the conducts of inciting, etc., the acts of dispute of public officials are punishable or not in the light of the above-stated standard should be determined case by case by taking concrete factual situations into consideration. It is just the same as whether the acts of dispute are justifiable acts carried out for achieving the original purpose of the trade union, in relation to Article 28 of the Constitution and Paragraph 2, Article 1 of Labor Union Law, should be determined case by case by taking the concrete factual situations into consideration in cases where the acts of dispute of the employees of the public corporations or of the workers of the private enterprises fall within the purview of the constituent elements of the crime of another penal provision that casually does not, in itself, prohibit acts of dispute, for example, in such a case as what is called A Case (the Supreme Court grand bench judgment upon Case (A) No. 296, decided on Oct. 26, 1966, Crim. Rep. vol. 20, No. 8, p. 901). Difference lies merely in the fact that in the latter cases it is a question of lack of illegality and in the former a question of existence of facts fulfilling the constituent elements of the crime.

Generally, in cases where a provision for restriction or prohibition of conducts in a certain law is laid down too broad on its face in the scope of restriction or prohibition and includes the factors which, in themselves, unduly infringe on the individual's fundamental human rights guaranteed by the Constitution, the guarantee of the fundamental human rights should be dealt with in the dimension of the constitutional law and it is not appropriate to deal with it upon the theory of lack of illegality in the dimension of the criminal law. Moreover even the law with such a broad restriction or prohibition as to infringe on the fundamental human rights is not always rendered completely unconstitutional and invalid as a whole. In cases where the provision whose restriction or prohibition rather exceptionally infringes on the fundamental human rights and is generally constitutionally permissible in almost of all cases, such as restriction or prohibition of the acts of dispute of public officials, it is appropriate to deal with the provision in the way of keeping its substance within the limits of constitutionality by construction as far as possible (constitutional restrictive construction), or, when it is difficult to give such a construction, in the way of rejecting its application to the specific, concrete cases as being unconstitutional (unconstitutionality in application), instead of invalidating the provision itself as a whole. In such cases, unless the provision is amended by legislation, the scope in which application of the provision concerned is rejected is to be determined with the accumulation of precedents, and especially where the latter way is adopted, there may be presumably not a few cases in which the scope cannot be determined except through the accumulation of precedents.

Taking the above-mentioned points into consideration, it is not appropriate to reject the construction taken in the judgment upon what is called D Case in fear of doubtful violation of Article 31 of the Constitution, merely because it gave a restrictive construction to the constituent elements of the crime of Item 17, Paragraph 1, Article 110 of N.P.S. Law in the sense stated above; much less, it should by no means be approved to hold, from the reason of the fear stated above, that the provision of N.P.S. Law does not violate Article 28 of the Constitution and is constitutional as a whole without giving any restrictive construction to it.

2 In the above, we stated the reasons why the majority opinion regarding the right of public officials to carry out acts of dispute is unjustifiable. However, upon reflection, we cannot find out the necessity and the understandable reasons why the majority opinion must intentionally express the constitutional opinion different from the construction of the grand bench judgment upon what is called D Case, in this case.

This is the case in which Defendants were prosecuted on the charges of violation of the above-mentioned provision of N.P.S. Law for the conducts of attempting to incite and inciting the acts of dispute of the B Workers' Union for the political purpose of the struggle against the amendment of the Police Duties Execution Law. We agree to the opinion of Justice Iwata that such acts of dispute are not included in the scope of the guarantee of the rights to carry out acts of dispute by Article 28 of the Constitution. Therefore it is sufficient for the disposal of this case to decide on this point, and it is not necessary to dare to decide even the question of permissibility of the prohibition of the acts of dispute carried out for the improvement for and advancement of the working conditions, still less, to alter the precedents or the former opinions of the Supreme Court, nor is it proper to alter them.

It goes without saying that since the construction of the constitution is the important authority given to the judicial court by the Constitution, it should be exercised very prudently, and that the principle should be strictly followed that the decision as to the construction of the constitution is expressed only when it is necessary and unavoidable for the disposal of the case, and to the necessary extent. Especially when the Supreme Court, as the court of last resort, intends to adopt a view different from the constitutional construction expressed in the past and to alter the precedent and express a new construction, its necessity and propriety should be scrutinized, examined and considered with special care. For, the alteration of construction of the constitution is substantially equal to the amendment of the constitution, and besides the construction of the constitution expressed by the Supreme Court, in its nature, cannot have a binding force and validity as authoritative decision unless it acquires the support and acknowledgement of other national authorities and general public through the persuasive power which exists in its reasoning itself. In order to maintain such authority and to keep stability of the constitutional order, the constitutional precedents should not hastily be altered, and careful attention should be paid to when and how it is to be altered, and in addition, it is necessary to be ready to indicate really persuasive reasons and grounds for the alteration. Of course construction of law may be different, in its nature, according to the constructors, especially so regarding the construction of the constitution, and in such cases the ultimate decision must be made according to the majority view. Nevertheless, regarding the alteration of the once expressed authoritative construction, what the Supreme Court should do is to make, in advance, special examination and scrutiny into the necessity and propriety for the alteration, and above all, it should be avoided as far as possible as a matter of practice to alter the construction by a majority of a few vote. It is an evident fact to this Court that, while, in the Supreme Court, the draft for amendment of the rule, requiring the special majority vote for the alteration of the grand bench precedents, was once submitted for advice to the Advisory Committee for Making General Rules, the amendment did not come into existence in accordance with the opinion of the majority members that it was proper to leave it to the practice based on the wisdom and bon sense of Justices. This fact is one of the sources to support what is stated above.

It is clear, when one reads through the grand bench judgment of the Court upon what is called D Case, that the basic view in the judgment that the justifiable acts of dispute of public officials and conducts of inciting, etc., these acts of dispute are kept away from criminal sanction on the ground that Article 28 of the Constitution guarantees the fundamental rights of workers, was formed with sufficient discussion and careful consideration, along the line of the judgment of the Court upon what is called A Case and the judgment of the Court upon what is called E Case (grand bench judgment upon Case (A) No. 401 of 1966, decided on Apr. 2, 1969, Crim. Rep. vol. 23, No. 5, p. 305). The view, in the outline, has since been followed by the inferior courts and is recognized to have gradually taken roots among the general public. Yet, in this case, the majority opinion dares to alter the above view, despite, as is pointed out above, it is neither proper nor necessary, in relation to the disposal of the case, for the majority opinion to mention whether the above view is proper or not. Moreover, the reasons of the majority opinion are, as stated above, substantially no more than the theory of the minority opinion in the above-mentioned grand bench judgment, and no reasonable explanation is given as to the reason why it is inevitable to alter the view of the above judgment, and, objectively, it is hard to find it out. In addition to these facts, we must also take it into account that a criticism will arise that to alter the prior constitutional construction by majority of a few votes, as in this case, is likely to arouse doubt upon the stability of the constitutional judgments of the Supreme Court, and further to decrease its authority and leadership.

We must point out what is stated above, because it is connected with the basic problem of what the Supreme Court should do and how it should behave about the alteration of the constitutional construction and decisions.

The dissenting opinion of Justice Kotaro Irokawa is as follows:

1 The Prohibition of Acts of Dispute and the Punishment

(1) The majority opinion holds, in effect, that any act of dispute is prohibited to the national public officials who engage in other than governmental enterprise activities (hereinafter referred to as public officials); that criminal sanction shall be imposed on anyone who incites, and so on, acts of dispute; and that Item 17, Paragraph 1, Article 110 of the National Public Service Law (the Law prior to the amendment by Law No. 69 of 1965, hereinafter referred to as N.P.S. Law) is constitutional without making any restrictive construction. I resolutely dissent to it. As for the reasons for it, I quote the basic views in the grand bench judgment of the Court upon E Case (grand bench judgment upon Case (A) No. 401 of 1966, decided on Apr. 2, 1969, Crim. Rep. vol. 23, No. 5, p. 305) and the grand bench judgment of the Court upon D Case (grand bench judgment upon Case (A) No. 1129 of 1966, decided on Apr. 2, 1969, Crim. Rep. vol. 23, No. 5, p. 685) (except the parts in conflict with my minority opinion attached to the judgment), and make them my opinion for this case. In addition, I would like to express my doubts on several issues involved in the majority opinion, and to supplement my dissenting reasons.

(2) The majority opinion states the reasons in detail why the acts of dispute of public officials must be prohibited (I do not necessarily oppose to the stated reasons as a whole). In short, it merely emphasizes that public officials should not be permitted to enjoy the right to carry out acts of dispute. Nevertheless, the majority opinion, hardly indicating substantial grounds, jumps up directly and immediately to the approval of the infliction of punishment, and seems to regard the infliction of punishment including imprisonment at forced labor for the conducts in violation of the prohibition of acts of dispute as the natural result from the restriction of the right to carry out acts of dispute. I cannot approve of it at all.

Indeed, there are actually a number of legislations which restrict or prohibit acts of dispute. They are not limited to the cases of public officials. But there are no foreign legislative examples which provide that punishment including imprisonment at forced labor shall be inflicted for the conducts in violation of the prohibition. Article 17 of the Public Corporations Labor Relations Law prohibits the acts of dispute of the employees of public corporations, of the public officials engaging in the enterprise activities of postal administration and other corporations managed by the Government, and of their unions, and provides that any employee shall not conspire to effect, instigate or incite such prohibited acts. While it is of the same meaning in this point as Article 98 of N.P.S. Law, the violator of the former may merely suffer the disposal of discharge, and is not punished because there are no penal provisions which support the prohibition (regarding the Telegraph and Telephone Corporation and other public corporations, there exists laws regulating their own enterprise activities some of which have the penal provisions for the unjustifiable suspension or delay of business. But, in my opinion, these provisions are to be applied merely to the individual disorderly conducts and not to the acts of dispute). As it is for the purpose of protecting the welfare of people to prohibit the employees of the public corporations and the public officials engaging in enterprise activities in the government-managed corporations from carrying out acts of dispute, no substantial difference in meaning exists between the above prohibition and the prohibition of the acts of dispute of public officials by N.P.S. Law. Consequently, merely to accumulate the reasons why the right of public officials to carry out acts of dispute should be restricted will not furnish sufficient proof for the reasonableness of the infliction of punishment.

(3) It is not true that the majority opinion does not refer to the reasonableness of the infliction of punishment at all. The apparent reasons found in the majority opinion seems to be the following two points: (a) that the acts of dispute of public officials may possibly bring serious obstacles to the common interests of the whole people, and (b) that those who incite, and so on, these acts are the motive power or the prop of such illegal acts of dispute. However, I cannot help feeling that any one of these reasons is far from the satisfactory explanation on the reasonableness of the infliction of punishment.

The first, or rather the only reason for the necessity for punishment is, after all, the danger of bringing serious obstacles to the common interests of the whole people. But, public officials, as spoken of as a whole, are various and diverse in the substance of work and the kind of service; some engage in the duty of planning, deciding or implementing the national policy, some engage in the subsidiary work under the direction of the superior, or others engage merely in the simple labor. Furthermore, admitting that acts of dispute bring, more or less, the suspension or delay of the public service, there are various degrees and different nuances in the scale and type of acts of dispute, and it may safely be said that the acts of dispute which bring or may possibly bring serious obstacles to the life of the whole people are very rare, taking the cases in the past into consideration. Even if the public service which is not essential (I will refer to this word below) is suspended or delayed in a very limited circle of work-places and for not a long time (such are most of the situations of disputes in the labor relationship of public officials), people will suffer only slight inconvenience or disadvantage. Originally, acts of dispute are carried out for the purpose of accomplishing the claims by giving a blow to the employer, but the obstruction of business in the enterprise inevitably influences on the third party, because the enterprise is not an existence isolated in the society. In cases where the enterprise is a public utility such as transportation or medical care, the direct victims by the suspension or delay of services are rather the general public. Thus, the third party cannot escape from suffering nuisance, but it would be against the purport of Article 28 of the Constitution to prohibit acts of dispute entirely, or to charge entirely to the trade union the damage which the third party suffered due to the acts of dispute. In this sense the third party is obliged to endure the damage to some extent, and it should be noted that it is essentially the same with regard to the acts of dispute of public officials.

As the ground of the argument of the majority opinion lies in that the acts of dispute bring serious obstacles to the community life of the whole people, it seems to me that it might be a logically natural conclusion that such trifling acts of dispute as mentioned above which merely give slight inconvenience to the people should not be treated with punishment. Why does the majority opinion approve unconditionally of inflicting punishment for any act of dispute carried out by public officials, entirely in disregarding of the gravity of the affairs, or the strength of the influence on the life of the people, and so on? I cannot concur in the majority opinion at all, as I am of opinion that the infliction of punishment is not constitutionally permissible without the restrictive construction.

(4) Next, the majority opinion rules that "the prohibition of the acts of dispute by public officials is not unconstitutional," and that it is natural that "one who incites, and so on, the illegal acts of dispute in violation of this prohibition" should assume the grave responsibility as the one who give motive power, and also rules that "it is reasonable enough" to inflict criminal sanction on him in order to "prevent the illegal acts of dispute". However, merely because the prohibition of the acts of dispute is not unconstitutional, it does not follow that even inflicting punishment on the acts of dispute in violation of the prohibition is necessarily and unconditionally approved as constitutional. The Constitution declares the guarantee of the right to carry out acts of dispute as a major principle, and most of the public officials were under the guarantee in the past. Since it is understood that the acts of dispute of public officials later came to be restricted, as the necessary exception, from the viewpoint of the balance with the welfare of the people (the majority opinion may be of the same opinion in this regard), the limit and form of disadvantage to be inflicted for the violation of the prohibition must be determined as deliberately as possible, by returning to the original point of Article 28 of the Constitution. Would it not be logically wrong to hold the view that any punishment can be inflicted for the violation of the prohibition of acts of dispute because the prohibition is not unconstitutional? The logic of the majority opinion will collapse unless it stands on the unconscionable premise that the prohibition of the acts of dispute of public officials is really the demand and the categorical imperative of the Constitution (the majority opinion insists on the speciality of the status of public officials in relation to Article 15 of the Constitution, but nevertheless it does not go so far as to extend such an argument as above).

(5) Moreover, the majority opinion asserts that sufficient reasonableness lies in punishing the conducts of inciting and so on. But it appears that the said reasonableness is the reasonableness "in order to prevent acts of dispute", that is to say, similar to the reasonableness of an economic principle to achieve the maximum result with minimum labor. In other words, it does not seem to mean the reasonableness in the sense that on what reasonable ground the infliction of punishment is allowed which is the really necessary exception to the principle of Article 28 of the Constitution, but it seems to mean the reasonableness from the viewpoint of criminal policy or of the measures for maintaining public order.

Once in our country, the provision of Article 17 of the Peace Police Law (Chian- Keisatsu-Ho) existed which controlled enticement and incitement of acts of dispute, and the police by utilizing this provision succeeded skillfully in oppressing all acts of dispute during the Meiji and Taisho eras. The legislator, in dealing with the illegal acts of dispute in violation of the prohibition, may possibly have based on the calculation not only that it is too cumbersome to arrest and punish all the participants, but also that, if the big evil, so to speak, who are socially more blameworthy than the mere participants are punished, the blind followers will give up the acts of dispute without coercion, though I do not guess that the legislator might have followed the wisdom and example in the past at the present time when the right to carry out acts of dispute is guaranteed distinct from those days. If it is the case, to punish the conducts of inciting, etc., may indeed be reasonable for suppression of labor disputes. But, this view, of course, cannot be accepted, because it is the view made for convenience' sake and for political sake, away from the constitutional dimension, and outside the constitutional scope.

(6) The majority opinion asserts that, since those who resorted to the conducts of inciting, etc., are those who exercise the motive power of acts of dispute, they are "socially more blameworthy than the mere participants in the acts of dispute" and should naturally assume the responsibility for it. Turning this over, the assertion is based on the view that the mere participants in the acts of dispute are not lacking in the social blame-worthiness which constitutes the ground for the accusation of criminal charges, but that they are merely less blameworthy than those who exercise the motive power. While the majority opinion also states, in the other part, that "the personnel who merely participate in the (illegal) acts of dispute are not to be punished", it does not seem to explain any more than what the present law is, and I cannot perceive any hints of the idea that it must be so from the constitutional viewpoint. If the present law were amended into that all the mere participants are also to be punished, how would the majority opinion meet it ? Probably it would say that such an amendment can be enacted freely by the Diet itself and would not hesitate in applying the provision.

(7) While the mere participants in the acts of dispute are not punished as stated above, it should not be understood that this has resulted from the specific legislative policy. If they should be punished, the question of unconstitutionality would immediately arise. What is called the principle of non-punishment of the participants in the acts of dispute has been established in relation to Article 28 of the Constitution. I am of opinion that the meaning of the conducts for inciting, etc., too, can be correctly understood merely on the above stated fundamental standpoint.

Of course, the majority opinion is of different view, but nevertheless it admits that it does not take the view of punishing the mere participants in the acts of dispute. However, the construction of the majority opinion as to the conducts of inciting, etc., is so broad (so far as the construction is not based on Article 28 of the Constitution and disregards or neglects the relationship to the Article, as is the case of the majority opinion, reasonable restrictive construction with strict attitude, apart from an arbitrary construction, cannot be achieved) that even the mere participants can not but feel the menace of the punishment, as stated below, if such a broad construction is to be adopted. It would follow that the motive power theory as logical basis of the majority opinion, that is, the theory that only those who exert the motive power shall be punished, becomes in fact merely a sham. (The majority opinion especially notes in the parenthesis sentence that neither those who merely offer simple mechanical labor nor those who are in the similar positions are included in the category of the performers of incitement and so on, but it is an empty theory disregarding the reality that acts of dispute are formed and carried out by the union members themselves. As a general rule, all the union members participate in and carry out acts of dispute on their own judgment and on their own independent standpoint. For example, even distributing and posting bills or communicating orders and so on which the rank and file union members ordinarily take charge of are different in character from offering merely mechanical labor such as that of day laborers in the election campaign.)

The conducts punishable by Item 17, Paragraph 1, Article 110 of N.P.S. Law include "instigation" and "conspiracy" as well as the conducts mentioned above. If one construes each of them literally as the majority opinion claims to have done so, it will follow that the union members including even the common members participating in or cooperating to the acts of dispute on their free will might possibly be accused of a criminal charge. For, it must be nothing but "incitation", if even the common members attend what is called the general assembly for action and eagerly support the strike proposal of the executive board and inspired the morale of the union members; it is not easy to conclude that it does not come under "instigation" if they actively affix or distribute the papers of declaration of strike or agitation bills in the work-place and so on. Furthermore, is it not doubtful even whether it does not come under "conspiracy" to participate actively in the formulation of the will of the acts of dispute of the union, and to join the discussion on the measures for the acts of dispute (This is a step necessarily passed through in the process of the struggle by the union)?

If such cases are not necessarily unimaginable (considering the real state of affairs of a dispute, it is by no means assured that they will not occur), it will be an easy task even to make an exhaustive arrest of those who are, though active to some extent, after all the mere participants in the acts of dispute, as well as the central members of the union who played a role of a motive power in the leading status. If such a situation were to occur, it would probably be dissatisfactory even to those who hold the motive power theory. For, the majority opinion also states that "law respects the fundamental rights of workers and intends to keep restrictions on these rights, especially inflicting punishment, to the minimum".

Of course, a disposal which would lead to such an unreasonable result would not be made in the situations of ordinary disputes, but the motive power theory which the majority opinion emphasizes will lose its root, after all, so far as the limitation is not set by law and it solely depends on the sensible discretion of the investigating agencies.

(8) The majority opinion, quoting from the I.L.O. Convention (No. 98), refers to its non-application to public officials, and mentions that the Report of the I.L.O. Committee on Freedom of Association includes the statement that "in the majority of countries" public servants are prohibited from striking, quoting its corresponding part, and asserts that the restriction on the acts of dispute of public officials is internationally approved.

It is true that Article 6 of the Convention (No. 98) contains the provision which the majority opinion quotes, but the opening address of the Director-General Jencks in the First Session (held from March 22 to April 2, 1971) of the Joint Committee on the Public Service of I.L.O. which started in 1971 (which is the official experts committee consisting of two parties, the government group of 16 nations including Japan, and the workers' group of each of these nations), pointed out that "changes now took place in the public services of many countries", and that "there was a trend towards decisions as to working conditions reached by dialogue between the workers and the employer," and the Resolution (No. 1) adopted after the discussion in the same committee states:

"Recognizing that, although the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), 'does not deal with the position of public servants engaged in the administration of the State', in some countries such public servants already benefit from all or some of the provisions of the Convention,

Considering that public servants should have, in accordance with Convention No. 98, adequate protection against any act which might impair trade union freedom."

(Incidentally, the English text of Article 6 of the same Convention uses the words "public servants engaged in the administration". Is the meaning of the words not much narrower than that of "Komuin" (public officials) used in the text translated into Japanese? Actually the I.L.O. Committee of Experts on the Application of Convention and Recommendations submitted the report in 1967 purporting that the notion of public servants, though it is different to some extent according to the legal systems of the countries, does not include the public servants who do not act as the agency of the public authority. Though this case does not directly deal with such public officials, I refer to this question because what the majority opinion states might possibly be construed extensively.)

Furthermore, I think it questionable whether the countries which prohibit public officials from striking ever amount to the great majority in the world, and even if such is the case, what it means. Indeed, speaking merely of number, not a few countries still have the strike prohibition law against public officials, but most of them are developing countries, or otherwise, agricultural countries. Among the developed industrial countries, we can mention only the United States of America, the Netherlands and Switzerland as well as our country. Moreover, even in the United States of America where the regulation with regard to public officials has been tight, the legislations abolishing the prohibition have been enacted these days one after another in some States.

However, it is not, in fact, the core of the question. What we must be especially concerned with in this case is whether there are penal provisions for the violation of the prohibition or not. The majority opinion does not refer at all to how many provisions of the sort exist especially in the developed countries. What it states is simply that the prohibition legislations exist in many countries. If it ever intends to consider this case in the international perspective, it should look into the very reality of the strike prohibition legislations against public officials which are supported with punishment.

(9) Though our country has not yet ratified it, I.L.O. Convention (No. 105), as is well known, prohibits in general the forced labor as the sanction against the participation in the strike, without any reservations. Indeed, the Report of the Committee of Experts submitted to the 52nd Session of the I.L.O. General Assembly (1968) states that "it is appropriate to take account of the fact that agreement is reached that in certain circumstances penalties could be imposed for participation in illegal strikes and that these penalties might include prison labor", and it seems that there are few different opinions concerning this view, in the main. Therefore, there seems to be some views that Item 17, Paragraph 1, Article 110 of N.P.S. Law and the related provisions are not in conflict with the Convention even if it is ratified (Is it partly because of the anxiety about the point mentioned above that the Government of our country has been hesitating in its ratification?). But it is only for "essential services" that is, "necessary and in dispensable services" that the same Committee of Experts approves the punishment. And we must not forget that the word "essential" indicates, according to the opinion of the Committee, the cases "where the interruption may endanger the existence or well-being of the whole or part of the population".

Furthermore, the Committee on Freedom of Association states, in the Case No. 12, with regard to the provisions with criminal sanction against the violation of the prohibition of strike in Argentina:

"The committee notes the assurance given by the (Argentine) Government that it has never found it necessary to apply the provisions of the (Argentine) laws respecting public security to strike, and it recommends the Governing Body to draw the attention of the (Argentine) Government to the desirability of re-examining the provisions mentioned above, with a view to taking any action necessary to ensure that they may not be invoked against trade union leaders in respect of the normal exercise of their functions in connection with the defense of occupational interests."

Besides, in the Case No. 55 (which is the complaint concerning the existence of the penal provisions for strike in the penal code in Greece), the Committee dismissed the complaint of the workers' side, but it is because the Committee "noted" the fact that the penal provisions have not been applied in practice, and it indicates the attitude that it does not easily approve the infliction of punishments for the violation of the prohibition of strike.

In effect, the general tendency of I.L.O. is very negative for the infliction of punishments, especially imprisonment at forced labor, for the violation of the prohibition of strike by public officials.

On the other hand, looking into the present legal provisions in each developed country, it is in the United States of America that there exists a provision to inflict a fine of not more than 1,000 dollars or imprisonment for not more than one year and one day or both for the violation of the prohibition of strike by the federal public officials, but in England, Germany and France, regarding ordinary public officials, apart from police officers and so on, no fear of punishment exists at all, because, to begin with, there are no provisions prohibiting strike.

Taking a general survey of what is stated above, it can be said that the global current goes to an entirely different direction from what the majority opinion states. The majority opinion asserts that it stands in "the international perspective". But, even if it is true, has it not looked only on one side of the shield?

2 The Collective Activities in This Case are not "Acts of Dispute".

(1) According to the facts found in the judgment below, Defendants, in October, 1958, when the Cabinet produced the bill for amendment of a part of the Police Duties Execution Law to the House of Representatives, for the purpose of opposing to it, (a) sent the order of holding the work-place assembly within working hours to the branches and the division committees all over the country, and besides, (b) planned the work-place assembly for two working hours in front of the office building of the Ministry of Agriculture and Forestry and induced the personnel of the Ministry to participation in it, by so doing, incited acts of dispute. Now that it is the case, these activities were carried out in order to reflect the will of the trade unions in the Diet and to curb the movement of the above stated amendment in the legislative process, and consequently they are regarded as having carried out for a political purpose. Besides, they boycotted their work all together against the will of the administrators during the assembly, though it did not last for a long time. They are thus regarded as so-called a political strike.

However, a political strike is a mere popular name, and the uniform activities of the trade unions for purely political purposes are characteristically different from strikes as acts of dispute in the labor law, even though the former obstruct the work. For instance, a strike (simultaneous closure of office) of the physicians association claiming revision of the fee for medical care, a strike of the public bath owners opposing to the maintenance of the present fee for the bath, and so on, are not, in any sense, acts of dispute. So-called political strikes are fundamentally the same as these strikes. "Strikes" for preventing the amendment of laws, that is, for exerting influence on the discussion in the Diet and urging the government (which means the government as governing body and not the government as employer) to reconsideration, are not acts of dispute in the labor law. Therefore, these strikes are not regarded as the exercise of the right to carry out acts of dispute and are not related to Article 28 of the Constitution, though they are the activities of the trade union.

Needless to say, the mere fact that these "strikes" are not guaranteed by Article 28 of the Constitution does not immediately make them illegal. It may be clear even without referring to Article 21 of the Constitution. For, the trade union does not enjoy special guarantee for political activity because of a trade union, and that is all, and there are no reasons whatever why the union is regarded as being generally prohibited from carrying out political activities.

Though, regarding national public officials, the provision for the restriction of political activities (Article 102 of N.P.S. Law) exists, distinct from the workers in private enterprises, the Rules of the National Personnel Authority which provide in detail the content of the political acts in accordance with the above provision are not without doubt as to the constitutionality, and it is not proper to conclude that any political act is prohibited on the ground of the provision alone. It is also questionable to conclude that the movement of the trade union of public officials for opposing to the amendment of laws is in conflict with the parliamentary democracy. (The majority opinion asserts that since the working conditions of public officials are determined by the law and the budget established by the Diet, it is in conflict with the parliamentary democracy for public officials to carry out acts of dispute with regard to the working conditions. We observe daily that the physician organizations and the agricultural organizations are pressing hard on the Diet or the Government for the purpose of facilitating a certain legislations, or opposing to the amendment of laws and so on. Even if such movements are not a preferable tendency, they may be the activities which the persons concerned are compelled to resort to for the protection of their rights to live, and besides there are no legal provisions which prohibit such activities, and thus they are, needless to say, legal conducts. Circumstances are not different concerning the trade union. The trade union has originally been established and developed chiefly for the purpose of maintaining and improving working conditions in relation to the employer. In the present time of high economic growth, its necessity for devoting all its energy to the struggle with the employer has gradually decreased, and besides, there has been a clear tendency that it makes efforts to improve in both material and spiritual life from a broad viewpoint. This change in the function of the trade union is the reflection of the change in the life and the sense of workers, and even the American-style business union cannot remain on the level of the union for merely securing higher wages. Consequently, it is a demand of the time and really a matter of course that the trade union tries to reflect its will not only within the enterprise but also in the administration of the government and the legislation. The fact that the trade union tries to exercise its influencing power on the debate in the Diet may not deserve blame unless it resorts to abnormal conducts, as it does not bring any obstacles directly to the function of the Diet. Rather it would be possible to consider that to inform the Diet, located high and separate from the people as the highest organ of the state, of what people really want, will be a way of leading the parliamentary democracy close to the real democracy.) It should be noted that to disapprove and denounce the political activities of the trade union sweepingly is to disregard the social function or activity which the trade union actually performs.

Nevertheless, I will not, of course, intend to say that all the political activities of the workers' union of public officials are legal. This matter should be considered separately. What legal evaluation should be given to such a type of political activities performed by the workers' union of public officials as in this case is to be determined by comparison and balancing among Articles 15 and 21 of the Constitution and the National Public Service Law. But in this case where the prosecution is based on the counts and the penal provisions not related at all to the regulation on the political activity of public officials, I do not think it necessary to consider the matter any more in detail.

(2) In order to prove that the so-called political strikes are not acts of dispute in relation to the labor law, it is necessary to explicate what the acts of dispute are in the labor law, and to prove that the acts of dispute prohibited in Paragraph 5, Article 98 of N.P.S. Law are the same as what is called the acts of dispute in the labor law. (I am of opinion that the former part of Paragraph 5, as a whole, prohibits acts of dispute. "Delaying tactics which reduce the efficiency of the governmental operations," too, consist of a part of the acts of dispute in a broad sense. Though there are some theories which distinguish them from acts of dispute, the misleading expression in the provision should be considered as the result of the tame submission to a rough draft which the occupation forces had made and compelled the Japanese Government to adopt, common to the legislative process under the occupation. In short it was a mistake in legislation. In the light of the history which I described in detail in the judgment mentioned below, no other reasonable constructions than the above stated can be thought of.) But since I once stated about this matter in detail (my opinion in the grand bench judgment upon D Case, Crim. Rep. vol. 23, No. 5, pp. 715-), I quote it.

After all, it is my conclusion that the judgment below committed error in the construction of law and that it must be reversed.

3 On the Matter of Alteration of Precedents

Finally, I have a word to add. The majority opinion has ruled that the precedent of this Court formed in D Case should be altered, but, apart from whether the views on the legal questions are right or not, I am, above all, very much dissatisfied with the majority opinion in the basic attitude on the alteration of the constitutional precedents. Concerning this matter, the very adequate opinion of Justice Jiro Tanaka, Justice Ken-ichiro Osumi, Justice Kosato Sekine, Justice Nobuo Ogawa and Justice Yoshikatsu Sakamoto is given in this judgment, and since I completely agree with the opinion, I concur in it, instead of expressing my own opinion.

In the presence of Public Procurator Masanori Tomita, Public Procurator Akira Yamamuro and Public Procurator Daisuke Kanbara.

Justice Kazuto Ishida
Justice Ken-ichiro Osumi
Justice Tomokazu Murakami
Justice Kosato Sekine
Justice Ekizo Fujibayashi
Justice Masao Okahara
Justice Nobuo Ogawa
Justice Takeso Shimoda
Justice Seiichi Kishi
Justice Buichi Amano
Justice Yoshikatsu Sakamoto
Justice Jiro Tanaka, Justice Makoto Iwata, Justice Kazuo Shimomura and Justice Kotaro Irokawa are unable to sign and seal because of their retirement.
Presiding Judge, Justice Kazuto Ishida