1963.05.22

1956 (A) 2973

Judgment upon case on the academic freedom and autonomy of the university

The Grand Bench

1. The judgment of the second instance and that of the first instance shall be both quashed.

2. This case shall be sent back to the Tokyo District Court.

With regard to the purport of appeal stated by Tadashi Hanai, the Superintendent Prosecutor of the Tokyo High Public Prosecutor's Office:

In examining the contention that the original judgment erred in construing and applying the provision for the academic freedom laid down in Article 23 of the Constitution of Japan, this Court holds as follows.

The academic freedom of that Article includes the freedom of scientific study and the expression of the results of that study. The guarantee of academic freedom of that Article is that such freedom be assured, widely to the people at large on the one hand, and, on the other hand, in particular to the university in view of its essential nature as a center of arts and sciences where the search for truth is carried out. The freedoms of education and of teaching are closely related to the academic freedom but are not necessarily included in the latter. However, as far as the university is concerned, it is proper to consider that the professors and other research staff are guaranteed the freedom to teach the results of their professional studies in the university on the basis of the purport of that provision of the Constitution and Article 52 of the School Education Law which implements the Constitution with its statement "The university, as a center of arts and sciences, shall aim at studying deeply arts and sciences as well as teaching them widely." That is to say, the professors and other research staff are guaranteed the freedom to teach the results of their studies through lectures or seminars in the university. Although all such freedoms must be subject to the restrictions of public welfare, in view of the essential nature of a university, freedom in the university is considered to be broader to some degree than that in a general situation.

In order to guarantee freedom of arts and sciences in the university, university autonomy has been traditionally conferred. This autonomy is recognized especially in respect to the personnel affair of the professors and research staff of the university and the president, professors and other research staff of the university are chosen on the basis of the autonomous judgment of the university. Moreover, this autonomy also is recognized to some extent in the control over the facilities and students of the university, and, to some extent, the authority for an independent maintenance of order is granted to the university.

As stated above academic freedom of the university and university autonomy are based on the essential nature of the university that it aims, as a center of arts and sciences, at studying deeply and teaching widely them. Such freedom means directly the freedom of the professors and other researchers to study arts and sciences and express and teach the results of their study, and the autonomy means that which guarantees this freedom. As a result of such freedom and autonomy, the facilities and students of the university are subject to the autonomous control of the university authorities, and the students enjoy academic freedom and the use of the university facilities. Naturally, students enjoy the academic freedom of Article 23 of the Constitution, just as the general public does. However, the fact that they, as the students of a university, can enjoy a greater academic freedom than the general public and can use the facilities administered autonomously by the university authorities is merely a result of the special academic freedom and autonomy given to the university professors and other research staff, based on the essential nature of the university.

A gathering of students in the university enjoys freedom and autonomy within the above-mentioned scope, and it can enjoy no special freedom and autonomy only because it is intramural group officially recognized by the university or an intramural gathering permitted by it. A students' gathering that is not for truly academic study or an expression of the results of such study but for activities corresponding to political and social activities in actual society can not enjoy the special academic freedom and autonomy given to the university. Besides, in case the gathering is not exclusively for students, and particularly in case it is open to the general public, it should be regarded as a public gathering or at least similar to it.

The gathering for the performance by the A University B Theatrical Group in the present case, according to the finding of fact of the court of the second instance, was held as a part of the so-called anti-colonialism struggle day, and the plot of the play also was based on the so-called Matsukawa case.(1) A fund-raising campaign for that case took place before the play began, and, furthermore, the details of the so-called Shibuya incident(2) were reported. These are no less than activities that correspond to the political and social activities of actual society, and thus the gathering in question must be said to cease to be one for truly academic study and expression. Also, according to the finding of fact of the court of the second instance, in the hall for the performance there were visitors who were neither students nor members of the teaching staff of the A University and who bought admission tickets. The policemen in this case also bought such tickets and entered freely. From these facts, it is to be concluded that the general public was freely allowed to buy tickets and to enter. Therefore the gathering in question can never be said to be one exclusively for specific students but must be regarded as one open to the general public or at least similar to it. So viewed, the gathering in question was not one for truly academic study and expression, but for the political and social activities of actual society, and a public gathering or similar to it. As such, the gathering cannot be said to be qualified to enjoy academic freedom and autonomy of the university. Accordingly, the entry of the policemen into the gathering in question did not infringe academic freedom and autonomy of the university.

So viewed, therefore, the judgment of the first instance which held that the entry of the policemen was unlawful in the light of the principle of university autonomy and the judgment of the second instance, which approved that of the first instance, must be regarded as having erred in construing the provision of Article 23 of the Constitution for academic freedom and accordingly erred in the construction and application of law as to the limits of university autonomy. In this respect, the Prosecutor's argument is well-founded. Then, the judgment of the second instance as well as that of the first instance must be respectively quashed without judging the other issues.

Thereupon, according to the main clause of Paragraph 1 of Article 410, Item 1 of Article 405 and the main clause of Article 413 of the Code of Criminal Procedure, this Court renders judgment as pronounced in the Main Text.

This judgment is rendered by unanimous opinions of the all justices of this Court with the supplementary opinions of Justice Toshio Irie, Justice Katsumi Tarumi, Justice Kenichi Okuno, Justice Shuichi Ishisaka, Justice Sakunosuke Yamada and Justice Kitaro Saito and the opinion of Justice Masatoshi Yokota.

THE SUPPLEMENTARY OPINION RENDERED BY JUSTICE TOSHIO IRIE, JUSTICE KENICHI OKUNO, JUSTICE SAKUNOSUKE YAMADA AND JUSTICE KITARO SAITO IS AS FOLLOWS:

The "academic freedom" of Article 23 of the Constitution is construed as including a freedom of learning on the part of the students as well as the freedom of scientific study and expression and the teaching thereof by professors and others engaged in research. That is to say, at the same time that professors and other research staff are guaranteed the conduct of their study, expression and teaching in freedom and without interference from state power, students are guaranteed the freedom to receive instruction and to study. Since the university, as a center of arts and sciences is a place of instruction as well as of studying, this guarantee of academic freedom is also regarded as a guarantee for university autonomy, to the extent necessary for guaranteeing such freedom. If police activities were allowed, in the form of an entry at any time into the site of education and studying of the university, such as for the inspection of the methods of study, expression and teaching of the professors and other research staff or such as the inspection of student gatherings held for the purpose of learning, or such as for a gathering of police information about these matters, etc., it is evident that no academic freedom or university autonomy can be maintained. Accordingly it is an unlawful act in violation of academic freedom guaranteed by Article 23 of the Constitution and university autonomy for a policeman to enter into places of instruction and study of the university merely for the purpose of gathering police information, except when he exercises the right of entry provided for in Article 6 of the Law Concerning Execution of Duties of Police Officials (the Law Concerning Execution of Duties of Policemen, etc., at the time when this case happened).

However, the B Theatrical Group's gathering in question was, according to the facts found by the judgment of the second instance, held as part of an "anti-colonialism struggle day," and the play was based on the Matsukawa case pending in court. A fund collection was taken for that case and, furthermore, details of the so-called Shibuya Incident were reported before the play began. The gathering therefore cannot be considered to have been held for academic study or the expression thereof. Accordingly, it cannot be said that the entry of the policemen was an unlawful act, infringing on academic freedom or university autonomy.

Nevertheless, it cannot be denied that the gathering in question was at least an indoor gathering in a university. The reason for the guarantee of freedom of assembly in Article 21 of the Constitution is that every person attending an assembly should be guaranteed free expression and mutual exchange of thought and opinion. So, if an assembly is held under the observation of a policeman who has entered for the purpose of collecting police information, the freedom of expression of persons attending would not be maintained and the freedom of assembly would be violated. Since there is no evidence to prove that the gathering in question was not a peaceful one, and since the policemen entered to carry out police activities merely for the purpose of collecting some police information, without recourse to the right of entry provided in Article 6 of the Law Concerning Execution of Duties of Police Officials, such entry cannot be confirmed definitely as not having infringed on the constitutionally guaranteed freedom of assembly even though it did not violate academic freedom or university autonomy. (The fact that the policemen entered to carry out police activities for collecting some information, not as private individuals or as spectators, even though they entered after having bought their admission tickets, was recognized by the judgment of the second instance. And even granting that the gathering in question should be treated as one open to the public, it cannot be said that there was no infringement of the freedom of assembly.)

However, even granting the entry of the policemen to have been unlawful, the measures to prevent their illegal act and to eject them should have been the prohibition of such entry of the policemen by the manager or some person of that type on the basis of his managerial authority or else a demand that they leave. Should the policemen not have acceded to the demand, forceful measures to prevent them from entering or to eject them by force would be an act of violence. The question then emerges as to the existence or not of illegality in the use of force to accomplish that exclusion.

According to the finding of the judgment of the second instance the accused improperly restrained the policemen, who were going to withdraw voluntarily, and acted with violence, as stated in the judgment. If so, the act of violence of this case was not necessary for preventing an entry of the policemen or ejecting them. The defendant can be said to have committed an act of violence on the policemen at the time when the policemen had decided to give up their police activities and were going to get out. There no longer existed a threatened infringement and there was no relationship to a prevention of such. Accordingly, there cannot by any means be a finding that the act was an urgent unavoidable act necessary for the removal of an unlawful act.

Under the Penal Code of Japan, in order for the illegality of an act of injury to be eliminated, there must be a recognition of the fact that the injurious act, done to prevent an infringement or danger is considered urgent and unavoidable, and that there exists an infringement of or an urgent danger to a legal interest, such occurs in legitimate self-defense, the necessity for averting imminent danger, etc. In the injurious act of the accused, no such urgency can be recognized. Not only that, but it is quite evident that the existence of illegal police activities in the past or reasons such as the prevention of illegal police activities in the future cannot by any means be recognized as the kind of urgency that would serve to take away the illegality of the injurious act in this case. The judgments of both the first and second instances put too much emphasis on the comparison between the legal interests and lack consideration for this element of urgency. Thus, there exists in these judgments a mistake in construction of the provisions of the Penal Code which is material to the judgment, and not to set them aside would be an extreme injustice. Accordingly, both the judgments of the first and second instances must be quashed.

THE SUPPLEMENTARY OPINION OF JUSTICE KATSUMI TARUMI IS AS FOLLOWS:

1. Academic study:

"Academic study" as mentioned in Article 23 of the Constitution means in its primary sense the specialized and systematic study and explanation of profound truths (including the nature of truth) and includes philosophy and every natural and social science. In ethics, literature, aesthetics, etc. however, there are included the philosophy of an outlook on the world and life, etc., and the study and creation of high beauty. Thus freedom should be guaranteed to the study and creation of higher arts as well as to education in its primary sense. Therefore, in academic study mentioned in Article 23 of the Constitution there must be included the arts. (That is the reason why Article 52 of the School Education Law sets forth, "The university, as a center of arts and sciences, shall aim at studying deeply arts and sciences......). The sciences and arts of our present time are an accumulation of the civilization and culture ranging over thousands of years in the past, together with the contributions of the scholars and artists of the present day. These constitute the foundation on which a sound and highly civilized life of the people can exist and, at the same time, they are the starting point of the civilization and culture of the next generation. It is a great blessing for the nation to have a large number of persons who are earnestly devoting themselves to arts and sciences.

2. Who enjoys the academic freedom of the Constitution?

I think they are those individual scholars and artists who pursue arts and sciences with purpose and ability. The public and private universities, which are permanent and systematic centers in which a large number of scholars and artists study and explain arts and sciences in a free and independent position, are given a constitutional guaranty of academic freedom as universities themselves that is distinct from the individual scholars and artists composing the universities. However, it is very difficult for those who are not specialists to judge what is science or art and what is not science or art, by observing new theories or trends or the techniques of various schools of arts and sciences. Usually in judging this we can only respect the good sense and judgment of authoritative scholars and artists. But when sciences and arts or academic freedoms, as mentioned in the Constitution and statutes, have become a point of issue in a legal action, the Court, although paying regard to the opinions of scholars and artists, must finally give legal judgment from its own viewpoint because these concepts mentioned in the laws are legal ones. The Diet and executive agencies in giving their legal judgment also must obey the Constitution and presumably will do so with regard to the view of the scholars and also within the scope of their own interpretation of the Constitution. The majority opinion of this judgment thinks of academic freedom from this viewpoint and draws a distinction between matters included in this freedom and matters not so included.

In its second part, the majority opinion stated in essence as follows:

"Academic freedom and university autonomy mean directly the freedom of the professors and other researchers to study arts and sciences and express and teach the results of their study, and the autonomy means that which guarantees this freedom, all based on the essential nature of the university. As a result of such freedom and autonomy, facilities and students are subject to the autonomous control of the university authorities, and the students can enjoy a greater academic freedom than the general public and use the university facilities administered autonomously by the university authorities. A gathering of students in the university also enjoys freedom and autonomy within the above-explained scope."

In the case a certain professor's curriculum is drama or arts, the opportunity for the students who are studying it to receive that teaching or to perform a play or appreciate it under the professor's guidance, all lie within the scope of the freedom laid down in the Constitution. However, if the same acts are performed by students of the Law, Science or Medical Department, etc., I don't think those acts are a specialized study of profound learning or high art. The provision "political knowledge necessary for intelligent citizenship shall be valued in education", which is stated in Article 8 of the Fundamental Law of Education is applicable not only to the education of the university but also that of the senior high school, etc., and such act as performing a play is only a part of general education. Students at a university are free to make a scientific study of a subject in which they are not majoring in the university or to develop themselves artistically. Indeed such study and cultivation may be specially valued simply because they are university students although such activities also are freely accessible to students of senior and junior high schools and also to general citizens. Such activities cannot be called "the academic freedom of a university" merely because they are carried out by university students in the university. For the students to perform a play entirely apart from the guidance and the intent of a professor or other researcher who is expert in the field is neither study or other research. Nor is it necessarily included in the specialized study of a learning or art in which the students themselves have chosen to major. If the students were going to do a play which was based on the Matsukawa case as part of an anti-colonialism struggle day, after having gotten permission to use a lecture room without reporting their intention to perform such play, and, at the same time, carried out a fund-raising campaign and details of the Shibuya incident were reported, that constitutes a use of the lecture room for a purpose outside the scope of the permit and an unauthorized use or an abuse of the right of use. Therefore, as the majority opinion has expressed, the gathering for the performance of a play is a political and social activity and does not belong to the study of arts and sciences. (I doubt whether students today in Japan in a preparatory and not a university course can be said to be as yet receiving instruction in profound specialized learning.)

3. Cases which would constitute an infringement of the academic freedom of a university would be when by reason of legislation, a court trial or administrative authority, a university, a scholar or an artist is caused difficulty in or is restrained from the study of a certain subject or from expression of the results of study, or when an individual exerts pressure upon a scholar in his studies or interferes with him or conceals the materials for study or induces him to the contrary. If the university authorities or the students themselves were to waive their academic freedom, such academic freedom would be lost. For example, this would occur if some students barricaded the entrance to a lecture room by piling up desks and chairs during lecture hours without permission so that the professor and other students could not enter the room or if the university authorities shut their eyes to such conduct. (Since a university has no extraterritorial rights, it cannot have its own police unit to prevent such disturbances by force.)

The Penal Code of Japan does not specially provide for the crime of infringement of the freedom of a university. Why not? Perhaps this is because the infringement of freedom of a university by a private individual, apart from the above-mentioned examples, is considered to be carried out generally in the form of crimes of the Penal Code against the professors and other researchers, such as violence, joint violence, threat, compulsion, violation of domicile, wounding, obstruction of business, fraud, defamation, concealment of a thing, destroying a thing, etc., so that it can be punished as a crime such as specified above. Merely going into the university campus with the intention of stealing a valuable report of a scientific study does not infringe the freedom of the university. If it be infringed, it is at least the freedom of a university in its abstract sense. Does the stealing of a microscope in the university laboratory always form the crime of interference with the execution of a researcher's business or the infringement of academic freedom?

4. The measures for protecting freedom of the university and the present case:

Even if it were granted that the performance of a play by the B Theatrical Group in lecture room No. 25 of the Law, Literature and Economics Departments of A University, as was set forth in the written indictment, was a study in the university and also the fact that the policemen, who concealed their status and entered the room after having bought admission tickets, (the crime of obstruction of business of Articles 233 and 234 of the Penal Code cannot be constituted by these acts) constitute an infringement of the freedom of study and research of a university, it was not proper for students to remove the infringement by such acts as, when the policeman was seated calmly in the room or walking toward the way out to leave the room, holding his hands and doing violence to him by punching his stomach with their fists, putting their hands into his inside pocket, plucking off the buttons of his overcoat, jerking his police notebook which he had fastened to a buttonhole by a string, tearing the string and so on. Accordingly, such acts must be said to constitute the crime under the criminal law for which the Prosecution indicted the accused. These violent acts are nothing hut a hindrance to the conduct and the appreciation of the play. The circumstances which the original judgment found as the reasons for preventing the acts in question from constituting the crime are not sufficient to prevent those acts from forming a crime under the Penal Code. So, the judgment as to the law of the second instance that there is a super legal reason for preventing formation of the crime is unfounded. In these circumstances, the students should have only inquired of the men in a quiet manner so as not to disturb the proceedings of the play and asked them to retire from the room by telling them the reasons therefore or they should have reported the matter at once to the university authorities, asking them for a proper action. If, nevertheless, the students acted as stated in the written indictment, it must be said that a crime of violence was committed by the students themselves which should not have happened in the highest seat of learning.

JUSTICE SHUICHI ISHISAKA GAVE HIS SUPPLEMENTARY OPINION AS FOLLOWS:

1. The facts constituting the crime charged in this action are as follows:

"The accused is a student in the fourth year class of the Economics Department of A University. He, together with G and several others, (1) did violence, around 7:30 p.m. on February 20, 1952, to H, a policeman of the Motofuji Police Station who was seeing a play being performed by the A University B Theatrical Group at lecture room No. 25 of the Law, Literature and Economics Departments of A University at D, C-Cho, Bunkyo-ku, Tokyo-to, by holding that policeman's right hand, striking that person's stomach with his fist, putting his hand into that person's inside pocket, plucking off buttons from that person's overcoat and so forth, and (2) did violence to another policeman of that Police Station, I, who was seeing the play at the same place at that time, by holding both hands of that person, putting his hand into that person's inside pocket, jerking that person's police notebook which was fastened to a buttonhole of that person's suit by a string and tearing the string." As the provision to apply, the written indictment referred to Par. 1, Article 1 of the Law for the Punishment of Acts of Violence, etc.

In accordance therewith, the court of the first instance should have examined in full whether the acts of violence as mentioned in the indictment were done to the two policemen by the accused, whether there were similar acts of violence as also mentioned in the indictment on the part of G and several other persons, and whether the accused and G and such other persons had the intention to act jointly in the commission of the crime against the two policemen. And if there existed any facts for which they were jointly liable, the court of the first instance should have made clear the true factual relationships. However, the court of the first instance, without completing the examination, held that there was no evidence that the accused had the intention to act jointly in the commission of a crime with other persons concerned and also held that all the acts it could find in the way of evidence were simply that when H, the policeman, was about to run away from the lecture room, the accused caught him by the arm and, along with other students, arrested him, and when that policeman was taken to the front of the stage and was hemmed in by the students, the accused pulled him up by his overcoat collar as he refused to show his police notebook and insistently demanded its presentation. The court of the second instance followed along by casually accepting the fact-finding of the court of the first instance and dismissed the appeal of the Prosecution that the court of the first instance had erred in the finding of facts.

However, judging from the record and the evidence, there is found a strong ground to suspect a gross error in the finding of fact in the judgment of the first instance and that of the second instance which upholds the former.

2. According to the record and the evidence, the use of the lecture room at the A University was granted on condition that it should be used for no political purpose and the borrower filed a written request for borrowing; The representative of the B Theatrical Group presented, on February 11, 1952, a request to the authorities for borrowing the lecture room, No. 25 of the Law, Literature and Economics Departments, from 5:00 p.m. to 9:00 p.m., February 20. The written request stated the program of the meeting as follows: (1) the play: (a) "On some day or other" (based on the so-called Matsukawa case) and (b) "A poem of the morning glow," (2) Greeting and (3) Commentary on the plays. It also stated that the audience would be students and members of the university. He presented a written guarantee of no political purpose in the meeting. But in fact there are good reasons to suspect that he concealed the true purpose of carrying out a signature-seeking campaign of opposition to rearmament that was to be carried out in conjunction with the youth sections of the trade unions and performing the play (Some day or other) which also would be performed by other groups at other places as part of an "anti-colonialism struggle day". He also concealed that the meeting was to carry out a fund-raising campaign, etc.

Also, according to the facts found by the court of original instance, a fund-raising campaign for the accused of the Matsukawa case was carried out before the play began and the details of the so-called Shibuya incident were reported. The so-called Shibuya incident was an event which took place at the public square in front of Shibuya Station at a time near the occurrence of this case and in which, while the students of the Liberal Arts Department of A University and others were carrying out a signature-seeking campaign for opposing rearmament and conscription, there took place a clash between policemen who ordered them to break up the gathering because of its being held without notice and those students who were defiant of the police order, whereupon some of the students were arrested by the police. As to the meeting in the present case, all those who bought admission tickets could enter the lecture room and a fairly large part of the audience came from outside of the university, notwithstanding the fact that the written request for borrowing the lecture room stated that the audience was to be students and members of the university. Accordingly, the gathering in question should be considered to have been open to the public. As such, it may be recognized as virtually certain that the real purpose of the borrowing of the lecture room was not for study in the scope of the academic freedom guaranteed by the Constitution and the university autonomy implementing it, but for a gathering open to the public which is equivalent to one of the political or social activities in the outer world. If this be the case, the B Theatrical Group's gathering cannot fall within the scope of "academic freedom" and "university autonomy" as was held in the judgment of the first instance and that of the second instance which upholds the former. As long as such were the circumstances, the policemen can be said to have sufficient reason for their entry pursuant to Article 1 of the Police Law and Par. 2, Article 6 of the Law Concerning Execution of Duties of Police Officials, etc. (in force when the acts in this case occurred), and also there is no ground for recognizing that the two policemen had any intention to disturb the conduct of the gathering. Under these circumstances, the accused had no legal interest in excluding the entry of the policemen who entered as members of the general public after having bought their admission tickets, or in protecting the gathering from the policemen's entry.

Furthermore, unless the statements and the performances in the public gathering in question, for which an admission fee was charged, actually harm another legal interest, the freedom of persons to proceed therewith is not to be disturbed, whatever their ultimate intentions may be. At the same time, as long as there is no actual harm to another legal interest by disturbing the order of gathering or troubling other spectators or interrupting the conduct of the gathering, the audience, whatever its ultimate intentions may be, is to be left in freedom simply to listen to the statements or to see the performances. This conclusion remains the same, whether the audience is comprised of the general public or policemen. There is no ground to recognize that the two policemen had the intention of infringing on any other legal interest or so acted.

It is regrettable that the judgment of the first instance and that of the second instance which upholds the former conceived and developed the theory of an extra-legal doctrine of justifiable acts on the basis of quite groundless fact-finding.

3. In order to remove the illegality of an act done in protection of a legal interest, it is regarded as necessary not only for the legal interest to be protected to be in balance with the one to be infringed by the act of protection, but also that infringement of the legal interest be urgent and the act of protection be inevitable. Applied to the present case, this principle is as follows. Granting there had been an unlawful entry of the policemen into the university campus before the crime in question was committed, the infringement of the legal interest had ended because such entry was an act in the past and thus there is no room for any act to remove the infringement. Furthermore, according to the finding of facts in the second instance, when the policeman Shiba felt that the students in the lecture room had become aware of his identity and was hurriedly approaching the southwest door at the rear of the lecture room after leaving his seat in the center of the room, the accused grasped the policeman's right hand and committed the act of violence on him such as is stated in the judgment of the second instance. Thus it is proper to conclude that the accused's holding back the policeman, who was retiring voluntarily from the room, constituted an act of violence to the policeman. Even admitting that the accused might have had some legal interest to protect, the infringement on it at that time was not urgent unless there existed some special circumstances. Furthermore, this violence also cannot be said to have been inevitable for the protection of a legal interest. If we further admit that an unlawful trespass by the policeman on the university campus in the future could have been anticipated at the time when the meeting in question was being held, as the judgment of the second instance holds, it is not conceivable that such trespass was urgent. Accordingly, there is no ground in the Penal Code for recognizing the acts of the accused as the justifiable ones of self-protection.

From the above-mentioned point of view, it must be said that the judgment of the second instance, which held the acts of the accused to be lacking illegality, is incorrect.

JUSTICE MASATOSHI YOKOTA'S OPINION IS AS FOLLOWS:

1. It is needless to say that in order to guarantee academic freedom in the university, the autonomy of the university is recognized and the authority of this autonomy extends over the control of the facilities and the students of the university. The ultimate object of this autonomy is a guarantee of the academic freedom of the university, but the exercise of this power is never limited to pure scientific study or the expression of its result, i.e. only to matters directly connected with scientific study. In speaking of the students' activities in the university, we include several sorts of activities (the so-called autonomous activities) which are in addition to pure scholarly activities. The university must be said to have the power and duty to direct and control them to a certain extent. It will contribute to the ultimate advancement of arts and sciences for the university to direct students' activities on a sound course through the possession of such power and duty. The proper meaning of university autonomy must be understood as that of respect for the independence of the university and the exclusion to the extent possible of any interference from outside the university within the sphere where student activities are under the authority and are the responsibility of the university.

2. From another point of view, the university has no extraterritorial rights and thus, it goes without saying, that the acts of students in the university may become the object of the lawful activities of the police whose duty is the protection of life, body and property of the individual, the prevention, suppression and detection of crimes, and the maintenance of the public security and order. And also, it must be acknowledged that among the activities of the police there are included the so-called functions of collecting police information. However, in the light of the primary meaning of academic freedom in the university and university autonomy, it is strongly required that the exercise of police power within the university, especially the activities for collecting police information, should be carried out more carefully than in other cases and the required limits not be exceeded.

3. The adjustment between university autonomy and the exercise of the police power is a rather difficult problem. Ultimately there is no solution except to depend upon good sense and moderation of the parties concerned. What is worthy of notice on this point is the circular notice of the Vice-Minister of Education which was mentioned in the judgment of the second instance. This notice was addressed by the Vice-Minister of Education to the presidents of the universities and others in the Metropolis of Tokyo on July 25, 1950 as a commentary on the Ordinance of the Metropolis of Tokyo concerning assembly, mass marches and mass demonstrations. It was consulted with the Metropolitan Police Board at the time when the Ordinance was put into effect. The circular notice stated as follows in reference to the intramural gatherings of university students: a meeting in a university campus which is held by specific persons after students or their organization have obtained permission of the university authorities through procedures laid down by the university, is not regarded as one to be held in a place open to the public. For that reason it is evident that such a gathering does not need the permission of the Public Safety Commission. At the same time, it is assumed that this gathering will be under control of the president of the university and that the police will cooperate on request of this president. This notice can be construed not only as making clear who has the power to permit a gathering but also as bearing on the question of the adjustment between university autonomy and the exercise of police power over student gatherings in the university. According to this circular notice, the requirement of a regular intramural gathering of students to be held under the university's responsibility and control is simply that the gathering should be held for the attendance of specific persons, i.e. it establishes the principle of that the gathering should not be open to the general public. There is no special reference in the notice to the purpose and program of the gathering. However, in addition to political activities (Par. 2, Article 8 of the Fundamental Law of Education), social activities which may infringe upon the political neutrality that is the principle of university education and which are in contradiction to the students' duty to devote themselves to learning, are not permitted in a university: Therefore, it can be regarded as being assumed without doubt that a gathering aiming at such activities should be controlled and restricted by the university when the university gives permission (a function of the university autonomy with regard to the management of students). Accordingly, a regular gathering of students in the university is conditioned upon not being held for the purpose of such activities. What was set forth in the circular notice cannot be regarded as having a legally binding power, although it should be valued as a concrete standard for adjusting university autonomy with the exercise of police power. In short, as long as student gatherings in the university meet at least the two above-mentioned requirements, the entry of a policeman, as an act of carrying out his duties, must be considered as impermissible except when he enters through regular lawful formalities and within the required limits. Stated in reverse, when the gathering lacks those requirements, the policemen's entry may be permissible on the same condition as a general indoor gathering. Therefore, the entry of the policemen cannot be refused for merely the formal reason that the gathering is being held with the university's permission. In the latter case, however, when the gathering is simply not a closed one, possibly the sponsors of the gathering might have a cogent reason to refuse the entry of the policemen because the entry of policemen for the purpose of collecting some police information could unfairly obstruct the proceeding of the gathering (especially an academic assembly) in the light of the characteristics of the police.

4. According to the record of this case, the following facts are evident: the student gathering in the university, initiated by the A University B Theatrical Group, an officially approved group of the university, was held in the lecture room No. 25 of the Law, Literature and Economics Departments with the university's permission (formally, a permission for the use of facilities) in line with the above-mentioned circular notice of the Vice-Minister of Education. The gathering was permitted on condition that it should have no political object and should be held for about three hundred students and members of the A University. And although the court of the second instance gave some recognition to the nature of the B Theatrical Group and real circumstances of the entry of the policemen, etc., the record of this case shows that an exhaustive examination or deliberation was not made in the judgment of the second instance as to the real nature of the B Theatrical Group, the true purpose of this gathering, how the gathering was actually conducted and what the university authorities, when they gave permission, understood the purpose and the program to be, etc. All of these were necessary to make clear what this gathering really was. As long as the inter-relation of these facts is not clear, it is impossible to render judgment on whether or not the policemen's entry into the gathering exceeded the permissible limits, in the light of what is mentioned above. Therefore it must be concluded there exists in the judgment of the second instance illegality of an insufficient examination which is material to the judgment regarding, at least, the above-mentioned points. It would be most incompatible with justice not to quash the judgment of the second instance.

In the presence of the Public Prosecutors, Tomokazu Murakami, Tetsuo Nakamura and Kinji Koyama.

May 22, 1963

Justice Kisaburo Yokota
Justice Matasuke Kawamura
Justice Toshio Irie
Justice Katsu Ikeda
Justice Katsumi Tarumi
Justice Daisuke Kawamura
Justice Masuo Shimoiizaka
Justice Kenichi Okuno
Justice Shuichi Ishisaka
Justice Sakunosuke Yamada
Justice Kakiwa Gokijo
Justice Masatoshi Yokota
Justice Kitaro Saito