Search Results
2004 (Gyo-Tsu) 328
- Date of the judgment (decision)
2007.02.27
- Case Number
2004 (Gyo-Tsu) 328
- Reporter
Minshu Vol. 61, No. 1
- Title
Judgment concerning the case where the court held that the official order issued by the principal of a municipal elementary school to require a music teacher to play an accompaniment on the piano for "Kimigayo" to be sung as the national anthem in an enrollment ceremony is not contrary to Article 19 of the Constitution
- Case name
Case to rescind admonition
- Result
Judgment of the Third Petty Bench, dismissed
- Court of the Prior Instance
Tokyo High Court, Judgment of July 7, 2004
- Summary of the judgment (decision)
Even if the principal of a municipal elementary school issued an official order to require a music teacher to play an accompaniment on the piano for "Kimigayo" to be sung as the national anthem in an enrollment ceremony, the official order cannot be deemed to be contrary to Article 19 of the Constitution as infringing the teacher's freedom of thought and conscience under the circumstances where: (i) the official order cannot be construed to immediately deny the teacher's view of history or view of the world pertaining to the role of "Kimigayo" in Japan in the past; (ii) since the act of playing an accompaniment on the piano for "Kimigayo" sung as the national anthem in an enrollment ceremony is the duty that a music teacher is generally supposed and expected to perform, it is difficult to regard it as an act by which the teacher is seen to externally manifest that he/she has a particular thought, and the official order is not intended to force the teacher to have a particular thought or prohibit him/her from having a particular thought; (iii) the teacher, as a local public officer, is in the position to obey laws and regulations as well as orders of his/her superiors, and the official order is in conformity with the purpose of the provisions of the relevant laws, regulations and administrative notices which set the goals of elementary school education and specify the significance and desired practice of enrollment ceremonies, etc.
(There is a dissenting opinion and a concurring opinion.)
- References
Article 15, para.2 and Article 19 of the Constitution, Article 30 and Article 32 of the Local Public Service Act, Article 18, item 2 of the School Education Act, II-D(1) and III-3, Chapter 4 of the Old Courses of Study for Elementary Schools (Public Notice of the Ministry of Education No. 24 of 1989; prior to the revision by Public Notice of the Ministry of Education No. 175 of 1998)
Article 15, para.2 of the Constitution
All public officials are survants of the whole community and not of any group thereof.
Article 19 of the Constitution
Freedom of thought and conscience shall not be violated.
Article 30 of the Local Public Service Act
(Basic Standards for Service Discipline)
Every official, as a servant of the whole community, shall serve the public interest, and exert his/her utmost effort in the performance of his/her duties.
Article 32 of the Local Public Service Act
(Obligation to Obey Laws and Regulations and Official Orders of Superiors)
Officials shall, in the performance of their duties, comply with laws and regulations, prefectural or municipal ordinances, rules of the relevant local public entities and provisions set by organs of the relevant local public entities, and faithfully observe the official orders of their superiors.
Article 18, item 2 of the School Education Act
(Objectives)
In elementary school education, efforts shall be made to attain the following objectives in order to achieve the purpose prescribed in the preceding Article.
(ii) Develop a proper understanding of the current situation and tradition of the children's native communities and of the State, and further cultivate the spirit of international cooperation
II-D(1) and III-3, Chapter 4 of the Old Courses of Study for Elementary Schools (Public Notice of the Ministry of Education No. 24 of 1989; prior to the revision by Public Notice of the Ministry of Education No. 175 of 1998)
Chapter 4 Special Activities
II. Contents
D. School events
As school events, schools shall conduct, on a school-wide basis or on per-grade basis, experience-based activities that will make school life well-ordered and full of variety, intensify the children's group consciousness, and contribute to the enrichment and development of school life.
(1) Ceremonial events
Conduct activities that will give meaningful variations and/or turning points to school life, enable children to enjoy a solemn and fresh atmosphere, and motivate them to make a start for new school life
III. Development of teaching plans and treatment thereof
3. In the enrollment ceremony, graduation ceremony, etc., schools shall, in light of the significance thereof, hoist the national flag and instruct children to sing the national anthem.
- Main text of the judgment (decision)
The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.
- Reasons
1. The appellant of final appeal in this case, a music teacher of a municipal elementary school, was given an admonition by the appellee of final appeal, Metropolitan Board of Education, on the grounds that the appellant had failed to obey the official order issued by the principal of the school to require the appellant to play an accompaniment on the piano for "Kimigayo" to be sung as the national anthem in the enrollment ceremony. The appellant, alleging that the admonition is contrary to Article 19 of the Constitution and therefore illegal, filed this lawsuit to request the appellee to rescind the admonition.
2. The outline of the facts legally determined by the court of second instance is as follows:
(1) The appellant worked at Hino City Elementary School A as a music teacher since April 1, 1999.
(2) Since March 1995, Elementary School A has performed the singing of "Kimigayo" in graduation ceremonies and enrollment ceremonies, with an accompaniment on the piano played by its music teachers. The principal of the school (hereinafter referred to as the "Principal") decided to perform the singing of "Kimigayo" in the enrollment ceremony to be held on April 6, 1999 (hereinafter referred to as the "Enrollment Ceremony"), with an accompaniment on the piano played by a music teacher, and included "Singing the National Anthem" in the program for the ceremony.
(3) On April 5, at the teachers' meeting in Elementary School A for the final discussion on the Enrollment Ceremony, the appellant was told by the Principal in advance to play an accompaniment on the piano for the singing of the national anthem, but the appellant said that he/she was unable to do that because of his/her own thought and belief as well as his/her policy as a music teacher. The Principal ordered the appellant to play an accompaniment on the piano for the singing of the national anthem in the Enrollment Ceremony, but the appellant refused to obey this order.
(4) On April 6, past 8:20 a.m., the Principal, at the principal's office, ordered the appellant again to play an accompaniment on the piano for the singing of the national anthem in the Enrollment Ceremony, but the appellant refused to obey this order (the orders of the Principal mentioned in (3) and (4) shall hereinafter be referred to as the "Official Orders").
(5) On 10:00 a.m. of that day, the Enrollment Ceremony started. The master of ceremony addressed the opening remark, and then said "Sing the national anthem," but the appellant remained still on the seat in front of the piano. Since the appellant showed no sign of starting to play the piano, the Principal, after waiting for five to ten seconds, gave instruction to play the tape of the recorded accompaniment for "Kimigayo," which had been prepared in advance. With the recorded accompaniment, the singing of the national anthem was performed.
(6) As of June 11, 1999, the appellee, on the grounds that the appellant's disobedience to the Official Orders was in violation of Article 32 and Article 33 of the Local Public Service Act, gave an admonition to the appellant under Article 29, para.1, item 1 to item 3 of the Local Public Service Act (prior to the revision by Act No. 107 of 1999).
3. Concerning the part of Reason 2 for final appeal argued by the appeal counsel, YOSHIMINE Hiroharu, et al. which asserts that the Official Orders are in violation of Article 19 of the Constitution
(1) The appellant argues that "Kimigayo" is connected with Japan's aggression in Asia in the past, and therefore he/she cannot publicly sing or accompany this song. The appellant also argues that according to his/her thought and conscience, he/she cannot take part in infringing human rights by having children sing "Kimigayo" without teaching them accurate historical facts concerning what role "Kimigayo" played in Japan's aggression in Asia or taking other necessary measures to effectively guarantee freedom of thought and conscience to children. Such ideas argued by the appellant can be regarded as the appellant's personal view of history or view of the world concerning the role of "Kimigayo" in Japan in the past as well as his/her belief in social life deriving from such view. However, although for the appellant, it might be one choice based on his/her view of history or view of the world to refuse to play an accompaniment on the piano for the singing of the national anthem in the Enrollment Ceremony, believing that he/she should not play an accompaniment on the piano for the singing of the national anthem in a ceremonial event of a school, such refusal cannot generally be regarded as being inseparably connected with that view of history or view of the world. The Official Orders to require the appellant to play an accompaniment on the piano for the singing of the national anthem in the Enrollment Ceremony cannot be construed to immediately deny the appellant's view of history or view of the world.
(2) On the other hand, at the time when the Official Orders were issued, it was well known that "Kimigayo" was widely sung as the national anthem in enrollment ceremonies and graduation ceremonies of public elementary schools. Therefore, from an objective perspective, the act of playing an accompaniment on the piano for "Kimigayo" sung as the national anthem in an enrollment ceremony is the duty that a music teacher is generally supposed and expected to perform, and it is difficult to regard it as an act by which a teacher who accompanies the song is seen to externally manifest that he/she has a particular thought. In particular, it would be further difficult to make such evaluation where this act is to be performed under an official order.
As explained above, the Official Orders were issued to require a music teacher to play an accompaniment on the piano for the singing of the national anthem, as widely practiced in ceremonial events of public elementary schools and also conventionally practiced in enrollment ceremonies, etc. of Elementary School A, and it is not intended to force the appellant to have a particular thought or prohibit him/her from having a particular thought, or compel the appellant to confess that he/she has or does not have a particular thought. Nor can these orders be deemed to force the appellant to teach a one-sided thought or idea to children.
(3) Furthermore, Article 15, para.2 of the Constitution provides that "All public officers are servants of the whole community and not of any group thereof," and local public officers also have the position of servants of the whole community of the relevant local public entity. In light of the special nature of the position of local public officers and the public nature of their duties, Article 30 of the Local Public Service Act provides that every local public officer, as a servant of the whole community, shall serve the public interest, and exert his/her utmost effort in the performance of his/her duties, and Article 32 of the same Act provides that local public officers shall, in the performance of their duties, comply with laws and regulations, etc., and faithfully observe the official orders of their superiors. The appellant, as a music teacher of Elementary School A, was in the position to obey laws and regulations, etc. as well as official orders, and was actually given the Official Orders by the Principal with regard to the enrollment ceremony, a school event of Elementary School A. Article 18, item 2 of the School Education Act lists, as an object of elementary school education, "Develop a proper understanding of the current situation and tradition of the children's native communities and of the State, and further cultivate the spirit of international cooperation." Furthermore, in Chapter 4 of the Courses of Study for Elementary Schools (Public Notice of the Ministry of Education No. 24 of 1989) established under Article 20 of the School Education Act (prior to the revision by Act No. 87 of 1999) and Article 25 of the Ordinance for Enforcement of the School Education Act (prior to the revision by Ordinance of the Ministry of Education No. 53 of 2000), II-D(1) provides that, regarding ceremonial events particularly among school events, schools shall "conduct activities that will give significant variations and orderly breaks to school life, enable children to enjoy a solemn and fresh atmosphere, and motivate them to make a start for new school life." III-3 in the same Chapter also provides that "in the enrollment ceremony, graduation ceremony, etc., schools shall, in light of the significance thereof, hoist the national flag and instruct children to sing the national anthem." The performance of the singing of the national anthem in an enrollment ceremony, etc., with an accompaniment on the piano played by a music teacher, conforms with the purpose of these provisions. Also in light of the fact that Elementary School A has performed the singing of "Kimigayo" in enrollment ceremonies, etc., with an accompaniment on the piano played by music teachers, the Official Orders cannot be construed to be unreasonable in terms of their purpose and contents.
(4) Taking into consideration all points mentioned above, it is appropriate to construe that the Official Orders cannot be deemed to be contrary to Article 19 of the Constitution as infringing the appellant's freedom of thought and conscience.
The appellant also argues that according to his/her thought and conscience as a musician and teacher, he/she cannot play "Kimigayo," a musically inappropriate song which is based on Japanese traditional music (gagaku) but arranged with German harmony, by using an inappropriate instrument, an equally-tempered piano. As explained above, it is also obvious that the Official Orders cannot be deemed to be contrary to Article 19 of the Constitution only because the appellant has such an idea.
The reasoning mentioned above is obvious in light of the gist of the judgments previously made by the Grand Bench of the Supreme Court to date (1953 (O) No. 1241, judgment of the Grand Bench of the Supreme Court of July 4, 1956, Minshu Vol. 10, No. 7, at 785; 1969 (A) No. 1501, judgment of the Grand Bench of the Supreme Court of November 6, 1974, Keishu Vol. 28, No. 9, at 393; 1968 (A) No. 1614, judgment of the Grand Bench of the Supreme Court of May 21, 1976, Keishu Vol. 30, No. 5, at 615; and 1969 (A) No. 1275, judgment of the Grand Bench of the Supreme Court of May 21, 1976, Keishu Vol. 30, No. 5, at 1178). The determination of the court of the second instance against the points argued by the appellant can be affirmed as going along with this reasoning. The appellant's argument cannot be accepted.
4. Concerning other reasons for final appeal
The reasons for final appeal argued by the appellant, alleging violation of the Constitution and deficiency in the reasons attached to the judgment of prior instance, are in effect nothing more than assertions of errors in fact-finding or violation of law or regulations, or assertions that lack a premise, and none of these assertions can be regarded as a reason for final appeal under Article 312, para.1 or para.2 of the Code of Civil Procedure.
Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices except that there is a dissenting opinion by Justice FUJITA Tokiyasu and a concurring opinion by Justice NASU Kohei.
The concurring opinion by Justice NASU Kohei is as follows.
I am in agreement with the majority opinion that the Official Orders are not contrary to Article 19 of the Constitution, but I think it necessary to give a supplementary explanation regarding the reasons attached thereto.
1. I am in agreement with the majority opinion in that: (i) The appellant's refusal to play an accompaniment on the piano for the singing of the national anthem in a ceremonial event of a school cannot generally be regarded as being inseparably connected with the appellant's specific view of history or view of the world concerning "Kimigayo," and therefore the Official Orders to require the appellant to play an accompaniment on the piano for the singing of the national anthem cannot be deemed to deny the appellant's view of history or view of the world (3(1)); and (ii) From an objective perspective, the act of playing an accompaniment on the piano for "Kimigayo" sung as the national anthem in an enrollment ceremony is the duty that a music teacher is generally supposed and expected to perform, and it is difficult to regard it as an act by which the teacher who accompanies the song is seen to externally manifest that they have a particular thought.
However, the core problem of this case is that, although the above-mentioned reasoning might be "generally" or "objectively" applicable, the appellant him/herself considers that it does not apply to him/herself. From the appellant's standpoint, if he/she is forced by an official order to play an accompaniment on the piano for "Kimigayo" in an enrollment ceremony, perhaps, it means that his/her view of history or view of the world explained above would be denied, and playing the accompaniment as ordered might be regarded as an act by which the appellant would be seen to externally manifest that he/she has a particular thought.
With regard to the act of playing an accompaniment on the piano in question in this case, it is impossible to perform this act only by means of movements of the accompanist's hands and feet that are visible from the outside; more specifically, the accompanist is unable to play an accompaniment, or play it in a meaningful manner, without exercising his/her mental functions including musical sense and emotions as well as musical knowledge and skills. Where a person who has a belief as that of the appellant's is forced to play an accompaniment on the piano for "Kimigayo" in a ceremonial event of a school against his/her belief, that could cause psychological contradiction or conflict within the accompanist's mind, between the inner functions exercised for playing the music, and the unwillingness to play or the desire to stop playing if possible which is derived from the bad feeling toward acting as ordered, thereby causing mental distress to the accompanist. This is easily understandable.
Since the Official Orders are likely to cause the above-mentioned psychological contradiction or conflict to the appellant, they are also likely to cause a tense relationship between them and the appellant's freedom of thought and conscience, thereby raising the issue of restriction on freedom of thought and conscience. Therefore, when discussing the relationship between the Official Orders and "freedom of thought and conscience," it is necessary to additionally explain, based on the assumption that there is the possibility that the appellant would suffer a psychological contradiction or conflict or mental distress described above, why the appellant is required to tolerate such suffering.
2. Focusing on this point, the following relationship can be found between, on one hand, the provisions cited by the majority opinion, including Article 15, para.2 of the Constitution ("servants of the whole community"), Article 30 of the Local Public Service Act (serve the "public interest" as a "servant of the whole community"), and Article 32 of the same Act (obligation to obey laws and regulations and official orders of superiors), and on the other hand, freedom of thought and conscience guaranteed for teachers who are critical of the singing of "Kimigayo," like the appellant.
Firstly, the act of playing an accompaniment on the piano in an enrollment ceremony has an inner aspect closely related to the player's freedom of inner mind, "freedom of thought and conscience," and at the same time, it also has an external aspect of assisting and guiding the participants in the enrollment ceremony in singing the national anthem. Focusing on its inner aspect, this act would be included in the scope of "freedom of thought and conscience" to be guaranteed for the player, whereas focusing on its external aspect, it is nothing but an act necessary for smoothly and effectively performing the singing of "Kimigayo" as part of the program for a school event, and in this context, it would be included in the scope of duties of music teachers subject to the principal's official orders.
If an act that has these two aspects were virtually excluded, by reason of "freedom of thought and conscience," from a school event which is an important educational activity, or left to each teacher's individual discretion, that would cause serious problems in maintaining homogeneity in school education or organizational order in the school, which might have an adverse impact on the realization of effective educational activities.
Although school teachers are equipped with technical knowledge and skills as well as a high-level of expertise, school education cannot always be managed well if each and every specific educational activity relies on the relevant teacher's expertise and is left to the teacher's discretion. At least with regard to school events such as enrollment ceremonies, each school should make a uniform decision applicable on a school-wide basis and conducts an orderly activity based thereon (this does not mean that all participants are required to act uniformly but at least they are required to avoid causing disorder and thereby undermining the significance of the school event). The principal's supervisory power including the power to give an official order to teachers regarding a school event largely contributes to achieving this.
Secondly, with regard to the singing of "Kimigayo" in an enrollment ceremony, schools should not fail to give due consideration to the people who are negative to this practice, but at the same time, they should also fully respect the people who find a positive significance therein. It is the most desirable style of managing a school to allow the co-existence of multilateral values, and this is obviously in conformity with the essential nature of public officers as "servants of the whole community" (Article 15, para.2 of the Constitution) and in harmony with the ideal figure of teachers working as "servants of the whole community" at schools that are of "public nature" (Article 6, para.1 and para.2 of the Education Basic Act prior to the overall revision by Act No. 120 of 2006).
On the other hand, out of the necessity to conduct a school event as an educational activity in a timely and appropriate manner, it is insufficient to respect multilateral values as described above but it is required in many cases to make a uniform decision on a school-wide basis and put it into practice without fail. In such cases, the principal's leadership underpinned by the principal's supervisory power (Article 28, para.3 of the School Education Act) and the public officers' obligation to obey official orders of their superiors (Article 32 of the Local Public Service Act) plays an important role. For this reason, it seems to me that even in the case of an act that has the aforementioned two aspects, it is permissible in relation to "freedom of thought and conscience" to emphasize uniformity on a school-wide basis and to subject the person in charge of this act to a uniform decision made by the principal at his discretion, to the extent necessary for achieving the purpose of the event.
3. The Official Orders were issued as a school-wide policy to perform the singing of "Kimigayo" in an enrollment ceremony of an elementary school as part of its program according to the conventional practice and for the purpose of implementing it. Setting aside the question of whether or not it is an obligation to perform the singing in unison of "Kimigayo," at least in a municipal elementary school at the time when the incident of this case happened, it is difficult, in light of the principal's power described above, to go so far as to prohibit the principal from deciding at his/her ultimate discretion, as the person responsible for the management of school as a whole, to perform the singing of the national anthem. Once the school has decided, as an organization, to perform the singing of the national anthem, it is a significantly reasonable choice to have a music teacher play an accompaniment in order to perform it effectively. Since playing the tape of the recorded accompaniment as an alternative measure cannot be deemed to satisfactorily meet the needs for an accompaniment, it is construed to be a necessary measure permissible under the Constitution to give an official order to the teacher who refuses to play an accompaniment as instructed, thereby having him/her play as an official obligation.
Some teachers given such an official order may have a negative belief or idea toward playing an accompaniment for the same reason as that argued by the appellant. Nevertheless, if teachers were allowed to refuse official orders by reason of their freedom of thought and conscience, that would undermine order of the workplace, and also would deprive children of the good opportunity to brace themselves up for the new school life and motivate themselves for studying by singing the national anthem in an enrollment ceremony, or reduce the effect of such opportunity. This would eventually undermine various educational benefits that children are entitled to enjoy through group activities.
The appellant's negative view of the singing of "Kimigayo" in an enrollment ceremony should be fully respected from the perspective of guaranteeing freedom of thought and conscience as far as it remains within his/her inner mind. However, this does not mean to allow the appellant to force this view on others, make it difficult to perform the singing of the song against the decision made by the school as an organization, or cause hindrance to the smooth implementation of the program for the enrollment ceremony determined by the school.
4. The appellant argues that it is against his/her professional "thought and conscience" as a teacher to have children sing "Kimigayo" without teaching them accurate historical facts concerning the role "Kimigayo" had played in Japan's aggression in Asia or taking other necessary measures to effectively guarantee freedom of thought and conscience to children. Such professional "thought and conscience" should also be fully respected as far as it remains within his/her inner mind. However, when it comes to the implementation of school education, although individual teachers have certain discretion as specialists in education, it does not follow that they have choice for any educational activity. It is understandable that if educational activities are not implemented comprehensively or uniformly in an orderly manner based on decisions made by each school as an educational organization under laws and regulations, the educational effect of these activities would be seriously affected. In particular, school events such as enrollment ceremonies and graduation ceremonies are implemented on a school-wide basis, unlike lessons usually given on a per-class basis by teachers who are independently in charge of respective classes, and these events should be implemented uniformly on a school-wide basis in an orderly manner. The Official Orders was given prior to the enrollment ceremony on more than one occasion by the Principal to the appellant from this standpoint.
Consequently, after Elementary School A decided, as an organization, to perform the singing of the national anthem in the enrollment ceremony, the appellant was obliged to cooperate with its performance despite his/her thought and conscience described above. The Official Orders was issued so as to manifest this obligation more clearly, and it is difficult to find a reason to determine the order to be unconstitutional or illegal.
The dissenting opinion by Justice FUJITA Tokiyasu is as follows.
I still have doubts about the majority opinion holding that the Official Orders issued by the Principal to require the appellant to play, against his/her will, an accompaniment on the piano for "Kimigayo" in the enrollment ceremony cannot be deemed to be contrary to Article 19 of the Constitution as infringing the appellant's freedom of thought and conscience. I cannot immediately agree with this opinion. The reasons for my dissenting opinion are as follows.
1. The majority opinion understands that the substance of the appellant's "thought and conscience" in question in this case is the appellant's "view of history or view of the world" (more specifically, the appellant's negative view of the role of "Kimigayo" in the past) as well as his/her belief in social life deriving from such view. Based on this understanding, the majority opinion determines as follows: Although for the appellant, it might be one choice based on his/her view of history or view of the world to refuse to play an accompaniment on the piano for the singing of the national anthem in the Enrollment Ceremony, such refusal cannot generally be regarded as being inseparably connected with such view of history or view of the world, and for this reason, the Official Orders to require the appellant to play the accompaniment cannot be construed to immediately deny the appellant's view of history or view of the world; the orders to require the appellant to play the accompaniment cannot be deemed to force the appellant to have a particular thought or compel the appellant to confess that he/she has or does not have a particular thought. In other words, the majority opinion can be construed to locate the appellant's "view of history or view of the world" containing the negative view of "Kimigayo," in the center of the appellant's "thought and conscience" guaranteed under Article 19 of the Constitution, and regard the appellant's refusal to play an accompaniment on the piano for "Kimigayo" in the enrollment ceremony as an act derived from or incidental to that view. Furthermore, the majority opinion seems to be based on the idea that between the appellant's "thought and conscience" and the act of playing the accompaniment, no close relationship can be found such that forcing him/her to play would immediately mean to deny his/her view (like the relationship between being forced to stamp on the image of Christ and the faith in Christianity). However, in my opinion, the true question in this case is not whether or not the Principal's order to require the appellant to play an accompaniment on the piano would result in prohibiting the appellant from having the "negative view of ‘Kimigayo' " or compelling him/her to confess that he/she has or does not have a certain "view of history or view of the world" (the appellant him/herself has manifested that he/she has the "view of history or view of the world" in the sense explained by the majority opinion; unlike the case of being forced to stamp on the image of Christ, there is no risk that the appellant would be subject to a punishment or disciplinary action for having confessed that view). Rather, I found that the true question is whether or not it is permissible to force the appellant to play the accompaniment on the piano in the enrollment ceremony despite the fact that it is very painful for the appellant in light of his/her belief. Assuming so, the substance of the appellant's "thought and conscience" to be questioned in this case may include not only the "view of history or view of the world containing the negative view of the role of ‘Kimigayo' in the past" but also the "negative view of the practice of a public organization forcing all participants of a public ceremony such as an enrollment ceremony of a public school to act in union with regard to the singing of ‘Kimigayo' even if it is against their will (or the belief or idea that one should not take part in such act)." To me, the latter aspect seems to be the issue that truly matters in this case. Supposing that this reasoning be affirmable, we should further examine, even though we took the determination of the majority opinion as a premise, whether or not such belief or idea deserves constitutional protection, or in other words, whether or not forcing a person to conduct an act against such belief or idea (the act of playing the accompaniment on the piano can be exactly regarded as such act) is unconstitutional. This reasoning is supported by the fact that it is possible for a person to have no objection to the status of "Kimigayo" as the national anthem and feel no resistance to the singing of the national anthem to praise the winner in the Olympic Game, but at the same time, to be strongly opposed to the practice of forcing participants in a public ceremony to sing "Kimigayo" because of the large difference in opinions among the Japanese people with regard to the view of "Kimigayo," and that a number of people actually show such attitude toward this issue. This attitude can be deemed to be a belief or idea that is theoretically different from the view of history or view of the world described above, and it is obvious that forcing a person who has this belief or idea to cooperate in the singing of "Kimigayo" in a public ceremony would directly suppress that person's belief or idea. Furthermore, we cannot immediately deny that this belief or idea is not something unacceptable to the public, such as "Do not act according to the rules of law," and it is worthy of appreciation to a certain degree from the perspective of liberalism and individualism. From this perspective, more deliberate consideration should be given to the relationship between the official order to require the appellant to play the accompaniment on the piano and the appellant's freedom of thought and conscience.
2. The majority opinion, denying the Official Order's violation of Article 19 of the Constitution and citing the provisions of Article 15, para.2 of the Constitution as well as Article 30 and Article 32 of the Local Public Service Act, also discusses that public officers are, under existing law, obliged to faithfully obey laws and regulations and observe orders of their superiors. Needless to say, it cannot be denied that since public officers are servants of the whole community, their human rights should be subject to intrinsic constraint to a certain extent. However, it is also obvious that the general theory that public officers, because of their status as "servants of the whole community," are necessarily required to tolerate any restriction on their human rights, cannot be applied for determining whether or not the restriction on a specific right is appropriate. In this case, what should be questioned is the specific content of the public interest to be realized by means of the official orders issued by the Principal to require the appellant to play the accompaniment on the piano, and careful balancing should be made between such interest and the necessity to protect the appellant's "thought and conscience" described above.
It is a self-evident fact that the ultimate goal of school administration should be "to realize the interest for children to receive education," and this interest is a very important public interest. However, this cannot directly lead to the conclusion that it is necessary to force a music teacher to play an accompaniment on the piano for "Kimigayo" in an enrollment ceremony. In this case, for the purpose of achieving the ultimate (and the same time, general and abstract) goal of realizing "a public interest," or more specifically of realizing "the interest for children to receive education," an interim goal of "instructing children for singing ‘Kimigayo' in an enrollment ceremony" is set (under the Courses of Study), and then for the purpose of achieving the interim goal, official orders are issued "to require a music teacher to play an accompaniment on the piano for ‘Kimigayo'," which is specifically aimed at "maintaining order and discipline in the enrollment ceremony" and "securing the principal's authority of control (for pursuing a decision made by the school as an organization)." In this structure, even where the interim goal is recognized at all, this does not necessarily mean that it is indispensable to "oblige a music teacher to play an accompaniment on the piano for ‘Kimigayo'." Whether or not the priority of public welfare or public interest over fundamental human rights of public officers can be found should be carefully examined for respective phases of this multi-layered structure, and in this case, such examination should be made, among others, with regard to its relationships with the specific objectives mentioned above, namely (i) "maintaining order and discipline in the enrollment ceremony" and (ii) "securing the principal's right of control." Concerning objective (i), in this case, it was not that the appellant started to refuse to play the accompaniment on the piano suddenly on the day of the enrollment ceremony, nor is it that the appellant intended to disturb the ceremony by force, but the appellant merely intended to avoid playing as he/she had desired and repeatedly requested. Therefore, the Principal could have fully predicted the appellant's avoidance, and in reality, by using the tape of the recorded accompaniment that had been prepared in advance for such situation, the Principal was able to have the ceremony proceed basically without particular problems. It is true that we could imagine that the appellant's refusal to play an accompaniment on the piano for "Kimigayo" despite his/her performance of the duty of playing accompaniments for other songs might make the ceremony participants feel somewhat odd. However, the true question is whether or not, if the appellant's refusal to play the accompaniment on the piano can be regarded as a direct expression of his/her thought and conscience, the prevention of such "feeling of oddness" can be deemed to be a public welfare or public interest that gives a sufficient reason for constraining the appellant's thought and conscience at all (if the accompaniment recorded on the tape is played with music instruments other than piano, such as wind instruments, compared with the live accompaniment on the piano, which accompaniment can give a more solemn impression to the audience cannot be easily determined). Concerning objective (ii), where an official order issued by the principal for such purpose is likely to restrict fundamental human rights of a public officer at all, we should question whether the principal's exercise of his/her right of control is more important than protection of the public officer's human rights. On this point, the court of second instance held as follows: "Considering that freedom of thought and conscience of a public officer engaged in public education should be intrinsically constrained by the public nature of his/her duties, even if the Official Orders are likely to constrain freedom of thought and conscience of the appellant who is a public officer for education, the appellant should tolerate such constraint, and forcing him/her to tolerate it cannot be deemed to be contrary to Article 19 of the Constitution." This holding does not seem to be based on the court's full understanding of the specific structure described above for realizing the public interest which may serve as a constraining factor for fundamental human rights. Furthermore, the court of second instance and the majority opinion seem to emphasize the fact that the Official Orders were issued to require the appellant, as a public officer in education specializing in music, to play an accompaniment on the piano in a school event. Although it cannot be denied that the act of playing an accompaniment on the piano in a school event is, at least, an ancillary duty for a music teacher, it is still questionable whether such act can be deemed to be one of the core duties of a music teacher that cannot be performed by others (we could say that because playing the accompaniment was an ancillary duty, it was possible to use the recorded accompaniment as a substitute for the appellant's accompaniment. In this respect, the appellant argues that in the course of performing his/her primary duty of giving music classes, he/she taught "Kimigayo" to children appropriately.) The reasoning of the majority opinion described above seems to be too idealistic and abstract. This also applies to the concurring opinion attached to the judgment of this court, which tries to determine the constitutionality of the Principal's official order to require the appellant to play the accompaniment on the piano on the grounds that "with regard to school events such as enrollment ceremonies, each school should make a uniform decision applicable on a school-wide basis and conduct orderly activities based thereon."
3. As explained above, further detailed examination should be made in order to accurately identify the substance of the appellant's "thought and conscience," which should be regarded as the true question in this case, and when making comparison between the freedom of such "thought and conscience" thus identified and the public welfare or public interest as a constraining factor thereof, more detailed and specific examination is required. In order to make examination from these perspectives and consider the legality of the admonition given to the appellant based on the examination results, in my opinion, the judgment of prior instance should be quashed and this case should be remanded to the court of second instance.
- Presiding Judge
Justice NASU Kohei
Justice UEDA Toyozo
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio
Justice TAHARA Mutsuo
(This translation is provisional and subject to revision.)