2007.09.18

2005 (A) 1819

Keishu Vol. 61, No. 6

Judgment concerning a case where the court determined that the provisions of Article 16, para.1, item 1, Article 17, and Article 19 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima City Ordinance No. 39 of 2002) are not unconstitutional under Article 21, para.1 and Article 31 of the Constitution, by adopting a limiting construction of the said Ordinance

Case to be brought for violation of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs

Judgment of the Third Petty Bench, dismissed

Hiroshima High Court, Judgment of July 28, 2005

The scope of "assembly" set forth in Article 16, para.1, item 1 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima City Ordinance No. 39 of 2002) can be construed to only include, apart from those held by motorcycle gangs in its original meaning that are organized for the purpose of conducting reckless driving, assemblies held by groups that are similar to motorcycle gangs and can be regarded as being identical thereto according to the generally accepted ideas because of their clothes, flags or behavior, and based on such limiting construction, the provisions of Article 16, para.1, item 1, Article 17, and Article 19 of the said Ordinance are not unconstitutional under Article 21, para.1 or Article 31 of the Constitution.
(There are concurring opinions and dissenting opinions.)

Article 21, para.1 and Article 31 of the Constitution, Article 16, para.1, item 1, Article 17, and Article 19 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima City Ordinance No. 39 of 2002)

Article 21 of the Constitution
(1) Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
(2) No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 31 of the Constitution
No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

Article 16, para.1, item 1 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima City Ordinance No. 39 of 2002)
(Prohibited Acts)
(1) Any person shall not conduct any of the following acts:
(i) Congregating or holding an assembly at a public place without obtaining approval or permission of the owner or manager of the place, in a manner that would make the public feel insecurity or fear

Article 17 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima Prefecture City No. 39 of 2002)
(Discontinuance Order, etc.)
If the act set forth in para.1, item 1 of the preceding Article is conducted, at a public place managed by the city government, by a person while showing his/her strength, inter alia, by wearing peculiar clothes, entirely or partly covering his/her face, forming a circle or hoisting a flag, the city mayor may order the person who conducts the said act to discontinue that act or leave the said place.

Article 19 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima City Ordinance No. 39 of 2002)
(Penal Provision)
A person who has violated an order issued by the city mayor under Article 17 shall be punished by imprisonment with work for not more than six months or a fine of not more than 100,000 yen.

The final appeal is dismissed.

1. Concerning the reason for final appeal argued by the appeal counsel, TANAKA Senshu, alleging that the provisions of Article 16, para.1, item 1, Article 17 and Article 19 of the Hiroshima City Ordinance on Elimination of Motorcycle Gangs (Hiroshima City Ordinance No. 39 of 2002; hereinafter referred to as the "City Ordinance") are literally and substantially unconstitutional under Article 21, para.1 and Article 31 of the Constitution
(1) The judgment of first instance affirmed by the judgment of prior instance found the following facts. The accused, in conspiracy with about 40 members of motorcycle gangs including the one called Kan'non-Rengo, from around 10:31 p.m. on November 23, 2002, held an assembly at the Hiroshima City Nishi-Shintenchi Public Square, a public place located in Naka-ku, Hiroshima City, and managed by the Hiroshima City Government, without obtaining permission of the Mayor of Hiroshima City, in a manner that would make the public feel insecurity or fear by showing the his/her strength while wearing clothes called "tokko-fuku (special attack unit's uniform)" on which the name of his/her motorcycle gang was embroidered, entirely or partly covering his/her face, forming a circle, and hoisting a flag. Around 10:35 p.m. on the same day, at the same place, the accused was ordered, by an official of the Hiroshima City Government who acted for the Mayor of Hiroshima City under the City Ordinance, to discontinue the assembly and leave the public square, but the accused flouted this order and continued the assembly until 10:41 p.m. on the same day, thereby violating this order.
Article 16, para.1 of the City Ordinance provides that "Any person shall not conduct any of the following acts," and lists, in item 1, the act of "congregating or holding an assembly at a public place without obtaining approval or permission of the owner or manager of the place, in a manner that would make the public feel insecurity or fear." Then, the City Ordinance provides in Article 17 that "If the act set forth in para.1, item 1 of the preceding Article is conducted, at a public place managed by the city government, by a person while showing his/her strength, inter alia, by wearing peculiar clothes, entirely or partly covering his/her face, forming a circle or hoisting a flag, the city mayor may order the person who conducts the said act to discontinue that act or leave the said place," with a penal provision under Article 19 that a person who has violated such an order issued by the city mayor shall be punished by imprisonment with work for not more than six months or a fine of not more than 100,000 yen.
The judgment of first instance found the accused's acts to constitute the acts provided for in Article 19, Article 16, para.1, item 1, and Article 17 of the City Ordinance, and sentenced the accused to imprisonment with work for four months, with a three-year suspension of execution of the sentence.
Article 2, item 7 of the City Ordinance defines a motorcycle gang as a "group organized for the purpose of conducting reckless driving or group of persons who congregate, hold an assembly or show their strength at a public place while wearing peculiar clothes or clothes with the name of their group indicated thereon which would make the public feel insecurity or fear." According to the records of this case, Kan'non-Rengo and other motorcycle gangs to which the participants of the assembly in question belong can be deemed to be nothing other than groups organized for the purpose of conducting reckless driving, or in other words, motorcycle gangs in the generally accepted meaning, and the accused, a quasi-member of an organized crime group, is found to have held the position called "caretaker" who was to have de facto control over these motorcycle gangs by supporting them, and he/she organized and directed the assembly.
(2) The appeal counsel argues that in light of the wording of the provisions of Article 16, para.1, item 1, Article 17, and Article 19 of the City Ordinance, the scope of application of these provisions is too broad.
Indeed, we agree with the arguments by the appeal counsel in that the wording of these provisions of the City Ordinance is inappropriate because the scope of "motorcycle gang" as defined therein may include groups other than motorcycle gangs in the generally accepted meaning and the prohibition and the issuance of an order of discontinuation or leave by the city mayor may also be effective with regard to acts conducted by persons other than members of such motorcycle gangs in the generally accepted meaning, and in that if the City Ordinance were literally applied, the scope of persons or acts subject to regulation under the City Ordinance would be so broad as to raise an issue of unconstitutionality under Article 21, para.1 and Article 31 of the Constitution. However, the punishment under Article 19 of the City Ordinance is only applied to the act of violating an order of discontinuation or leave issued by the city mayor under Article 17 of the said Ordinance. Furthermore, Article 1 of the City Ordinance, which provides for the purpose of the ordinance, can be construed to contemplate "motorcycle gangs" which, "by conducting reckless driving or showing their strength while congregating or holding an assembly or at a ceremony, not only significantly affect the life of city residents and sound development of juveniles but also extremely undermine the impression of Hiroshima City as an international city of peace and culture," as the subject to various regulatory measures under the City Ordinance. The City Ordinance, in addition to Article 5 and Article 6 that also contemplate "motorcycle gangs" as groups in which juveniles join, contains a number of provisions primarily aimed at preventing reckless driving. Moreover, Article 3 of the Implementation Regulations for the City Ordinance, which provide supplementary regulations under delegation by the City Ordinance, lists the criteria for deciding whether or not to issue an order of discontinuance, etc. under Article 17 of the City Ordinance, such as the existence of persons wearing "clothes, etc. on which the term ‘motorcycle gang' or ‘roaring sound' or the name of a motorcycle gang or any other words and phrases that emphasize the group's status as a motorcycle gang are embroidered, printed or otherwise indicated" (item 1), the existence of "flags, etc. on which the name of a motorcycle gang or any other words and phrases that emphasize the group's status as a motorcycle gang are embroidered, printed or otherwise indicated" (item 4), and "making yells in a loud voice that emphasize the group's status as a motorcycle gang" (item 5). Taking into consideration the tenor of the City Ordinance that can be understood by reading its provisions in their entirety as well as the provisions of the Implementation Regulations for the City Ordinance, despite the definition set forth in Article 2, item 7 of the City Ordinance, we can construe that the scope of "motorcycle gang" subject to regulation under the City Ordinance only includes, apart from motorcycle gangs in the original meaning that are organized for the purpose of conducting reckless driving, groups that are similar to motorcycle gangs and can be regarded as being identical thereto according to the generally accepted ideas because of their clothes, flags or behavior, and therefore, in relation to the act of holding an "assembly" for which the accused is charged in this case, we can conclude that the city mayor may issue an order of discontinuation or leave under the City Ordinance only in the cases where a motorcycle gang in the original meaning or any other similar group as explained above holds an assembly at a place and in a manner as set forth in Article 16, para.1, item 1 and Article 17 of the City Ordinance.
Considering that assemblies, etc. held by motorcycle gangs at public places in Hiroshima City have disturbed the public's peaceful existence, and that the act of holding an assembly that falls within the scope of regulation has not been immediately punished as a crime but has only been subject to ex post facto and phased regulatory measures under which such an act shall initially be subject to an order of discontinuation, etc. issued by the city mayor and shall not be punished until the order is violated, based on the limiting construction suggested above, we cannot go so far as to conclude that the regulation under the provisions of Article 16, para.1, item 1, Article 17, and Article 19 of the City Ordinance is unconstitutional under Article 21, para.1 or Article 31 of the Constitution in light of the justifiability of the purpose of the regulation (i.e. preventing such disturbance brought about by motorcycle gangs), reasonableness of the regulation as a preventive measure, and the balance between the interest to be obtained and the interest to be lost as a result of the regulation. This is evident from the gist of the judicial precedents, 1969 (A) No. 1501, judgment of the Grand Bench of the Supreme Court of November 6, 1974, Keishu Vol. 28, No. 9, at 393 and 1986 (Gyo-Tsu) No. 11, judgment of the Grand Bench of the Supreme Court of July 1, 1992, Minshu Vol. 46, No. 5, at 437.
(3) The appeal counsel also argues that the provisions of Article 16, para.1, item 1, Article 17, and Article 19 of the City Ordinance are not sufficiently clear and therefore unconstitutional under Article 21, para.1 and Article 31 of the Constitution. However, since the wording of these provisions cannot be deemed to be so unclear as argued, the appeal counsel's argument lacks a premise.
(4) For the reasons stated above, the judgment of prior instance does not contain such illegality as argued, and therefore the appeal counsel's argument cannot be accepted.

2. Other reasons for final appeal argued by the appeal counsel alleging unconstitutionality of the orders of discontinuation and leave issued by the Hiroshima City Government to the accused and other participants in the assembly in question are in effect nothing more than assertions of violation of laws or regulations, and none of them can be regarded as a legally permissible reason for final appeal.

3. Therefore, according to Article 408 of the Code of Criminal Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.
There are concurring opinions by Justice HORIGOME Yukio and Justice NASU Kohei and dissenting opinions by Justice FUJITA Tokiyasu and Justice TAHARA Mutsuo.

The concurring opinion by Justice HORIGOME Yukio is as follows.
I am totally in agreement with the majority opinion. After considering the dissenting opinions, however, I would like to present my opinion on this case.
1. The accused, who was related to a designated organized crime group and acted as a caretaker for a motorcycle gang called Kan'non-Rengo, with the intention of displaying the presence of the motorcycle gang by holding an assembly as a retirement ceremony at a square indicated in the majority opinion and therefore in conspiracy with about 40 members of motorcycle gangs including Kan'non-Rengo, held an assembly in a manner that would make the public feel insecurity or fear while showing strength by wearing clothes described in the majority opinion, entirely or partly covering his/her face, forming a circle, and hoisting a flag, and further violated the orders of discontinuation and leave issued to him/her by the city mayor. The act for which the accused is charged in this case is a typical one that is targeted as the subject to regulation under the City Ordinance in order to maintain the public's peaceful existence, and it is obviously in violation of the City Ordinance irrespective of what kind of construction is adopted for the City Ordinance, which means the legitimate rights guaranteed to the accused under the Constitution cannot be infringed in any case. Therefore, I cannot help thinking how the general public would feel if the accused were found not guilty on the grounds that the penal provision is too unclear or broad.

2. In general, it is not rare that the wordings used in the provisions of a prefectural or municipal ordinance are unclear compared to those of a national statutes. Therefore, before discussing the general applicability of a prefectural or municipal ordinance solely based on the wording of its provisions and determining the accused not guilty on the grounds that its penal provision is unclear and therefore unconstitutional, we should, as the majority opinion suggests, first identify what is an "assembly" that is the subject to regulation under the City Ordinance and closely examine whether or not it is possible to adopt a reasonable limiting construction of the ordinance. It is true that we must not disregard the importance of freedom of assembly, one of the fundamental human rights, and should therefore refrain from easily adopting a constitutional limiting construction. However, on such occasion, we should not evaluate the literal expressions used in individual provisions of a prefectural or municipal ordinance separately but rather make an overall evaluation of the provisions after examining how the provisions are drafted as a whole. In fact, the Supreme Court has so far determined the issue of constitutionality of prefectural or municipal ordinances from this viewpoint. Assuming so, as the majority opinion suggests, it is possible to adopt a reasonable construction of the City Ordinance limiting its scope within constitutional ambit, and therefore the issue of constitutionality should be determined in this direction. I cannot agree with the dissenting opinions that found the City Ordinance to be unconstitutional and void.

3. By reading through the provisions of Article 1 to Article 19 of the City Ordinance and considering them as a whole, we can fully understand that the purpose of the City Ordinance is nothing but to eliminate motorcycle gangs in the generally accepted meaning.
In addition, the penal provision under the City Ordinance shall not generally apply to the acts set forth in Article 16 but only apply to the act of violating an order issued by the city mayor under Article 17. Article 2 of the Implementation Regulations for the City Ordinance, which provide supplementary regulations under delegation by the City Ordinance with regard to the city mayor's order, cautions the city mayor not to go beyond the bounds of his/her authority by restricting fundamental human rights. Article 3 of the Implementation Regulations requires the city mayor to issue an order of discontinuation or leave while taking into consideration the matters set forth in item 1 to item 6 of the Article, a read-through of which can lead to a construction that the city mayor may issue an order of discontinuation or leave only upon existing motorcycle gangs and groups that can be regarded as being identical thereto. Thus, the Implementation Regulations for the City Ordinance limit the cases where the city mayor may legitimately issue an order of discontinuation or leave as described above.
The fact that the Implementation Regulations for the City Ordinance narrowly define the scope of persons or acts subject to regulation does not directly correct or rectify the broadness or unclearness of the wording of the provisions of the City Ordinance. However, we should construe that Article 3 of the Implementation Regulations for the City Ordinance, which provides that the city mayor may issue an order of discontinuation or leave only upon motorcycle gangs in the original meaning and groups that can be regarded as being identical thereto, is not intended to limit the scope of persons or acts subject to regulation by selecting the aforementioned groups out of a broader scope of persons and acts to be regulated under the City Ordinance, but rather it exists as a rule established by the city mayor based on the original scope of persons or acts to be regulated by the City Ordinance in order to enforce control over the persons and acts to be regulated. In this regard, the provisions of the Implementation Regulations for the City Ordinance can be deemed to be an important factor for determining the scope of acts to be regulated by the City Ordinance.
From this viewpoint, in this case, it is sufficiently possible to adopt a reasonable limiting construction on the scope of acts subject to punishment under the City Ordinance, and based on such limiting construction, as the majority opinion concludes, the regulation under the City Ordinance is not unconstitutional under Article 21, para.1 or Article 31 of the Constitution.

4. Justice TAHARA Mutsuo points out, as one of the reasons for finding the scope of regulation under the City Ordinance to be too broad and therefore unclear, the fact that Article 16, item 1 and item 2 of the City Ordinance use the term "congregating." However, I consider that this is not an appropriate method to be applied by the court for determining the issue of constitutionality. Although "congregating" and "holding an assembly" may appear to be similar phenomena, the latter is the gathering of people with a specific objective or intention, and has an aspect of a kind of act of expressing an opinion or view carried out by a number of people. In this respect, there is a great difference between "congregating" and "holding an assembly" in terms of the nature and significance or value as an act of expression, and when regulating these acts, they should be regarded as different acts and should not be treated as falling in the same category. In 1982 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of December 12, 1984, Minshu Vol. 38, No. 12, at 1308, in which the point at issue was the clearness of the phrase in the provision of Article 21, para.1, item 3 of the Customs Tariff Act, "books, drawings, etc. that are prejudicial to public security or good morals," this court only determined the issue of constitutionality with regard to the part of the provision concerning "good morals" for which the appellant was charged, and made no determination with regard to the part concerning "public security." This can be construed to clearly indicate that when determining the issue of constitutionality, it is inappropriate for the Supreme Court to make determination with regard to any term used in the provision that is not directly applicable to the case in question. In this case, the term applied to the accused was "holding an assembly," and the term "congregating" was not applied to him/her. Consequently, I consider that it is inappropriate to find the City Ordinance to be unconstitutional on the grounds that the term "congregating" is unclear.

The concurring opinion by Justice NASU Kohei is as follows.
I am in agreement with the majority opinion, but I would like to present a concurring opinion with regard to in what cases a limiting construction may be adopted.
1. In the cases where a law or ordinance that would affect freedom of expression is likely to be determined to be unconstitutional and void when construed as it is because it literally provides for an excessively broad scope of regulation, the Supreme Court has often applied the method of narrowing the scope of regulation based on a limiting construction of the law or ordinance and concluding the regulation to be constitutional. The majority opinion given in this case also takes the same stance.
As the appeal counsel argues, in order to allow a limiting construction, it is necessary to satisfy the two requirements indicated in the judicial precedent, 1982 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of December 12, 1984, Minshu Vol. 38, No. 12, at 1308 (Constitutionality Case on Inspection by Sapporo Customs Branch):
(1) The limiting construction must clearly distinguish what is subject to regulation and what is not, and also must expressly indicate that what can be constitutionally regulated shall only be the subject to regulation.
(2) For the viewpoint of the general public, it must be possible to understand, by reading the provisions of the law or ordinance, the criterion by which the applicability of the regulation to a specific expression can be determined.

2. The majority opinion takes the stance of construing that the scope of "motorcycle gang" which is subject to regulation under the City Ordinance only includes, apart from motorcycle gangs in the original meaning that are organized for the purpose of conducting reckless driving, groups that are similar to motorcycle gangs and can be regarded as being identical thereto according to the generally accepted ideas because of their clothes, flags or behavior.
The term "motorcycle gang" is generally understood as meaning a "group of young people who drive motorcycles recklessly or while making noises, thereby causing trouble to the public" (Kojien Dictionary, the fifth edition, etc.), and this understanding can be deemed to have been established among citizens. Consequently, if the term "motorcycle gang" under the City Ordinance could be understood in such a limited way as explained above, it would be clear that the scope of persons subject to regulation under the City Ordinance only includes motorcycle gangs in the original meaning and groups that are similar thereto and does not include other groups, in which case it is obvious that the regulation under the City Ordinance would be able to avoid criticism as being "too broad" and also be able to satisfy the first requirement indicated in the above-mentioned judgment of the Grand Bench of the Supreme Court, "[the limiting construction] must clearly distinguish what is subject to regulation and what is not, and also must expressly indicate that what can be constitutionally regulated shall only be the subject to regulation."
The question is whether or not the City Ordinance satisfies the second requirement, "it must be possible to understand, by reading the provisions of the law or ordinance, the criterion by which the applicability of the regulation [to a specific expression] can be determined." In this respect, the judgment of the Grand Bench of the Supreme Court can be understood to mean that a "limiting construction" of a law or ordinance is nothing but a kind of construction and it therefore must have such contents that can justify narrowing the scope of regulation based on the wording of its provisions. In other words, the said judgment seems to point out a matter-of-course reasoning that a limiting construction of a law or ordinance that cannot be drawn from the wording of its provisions lacks objectivity and logicality and is apt to be arbitral, and therefore it is, after all, unworthy of being called a "construction."
In the case of the City Ordinance, since it is entitled "Hiroshima City Ordinance on Elimination of Motorcycle Gangs," and phrases such as "elimination of motorcycle gangs" and "breakaway from motorcycle gangs" can be found in many provisions including Article 1 which provides for the purpose of the ordinance, it is possible to understand, by reading its provisions, that the primary purpose of the City Ordinance is to prevent juveniles from joining motorcycle gangs in the original meaning or encourage them to break away from such motorcycle gangs. In addition, as explained above, the term "motorcycle gang" may be understood as meaning a "group of young people who drive motorcycles recklessly or while making noises, thereby causing trouble to the public," and this understanding has been mostly established among the general public.
Taking into consideration all of these points, we can find that it is very easy for the general public to understand the limiting construction that the City Ordinance only targets motorcycle gangs in the original meaning and groups that are similar thereto, and "it [is] possible to understand" such content of the construction "by reading the provisions" of the City Ordinance.
On the other hand, the provision of Article 2, item 7 of the City Ordinance that a "group of persons who congregate, hold an assembly or show their strength at a public place while wearing peculiar clothes or clothes with the name of their group indicated thereon that would make the public feel insecurity or fear" is to also be treated as a motorcycle gang may, from the viewpoint of the general public, appear to be contrary to the generally accepted ideas and strange, and it may not be easy for the general public to reach a correct understanding of such treatment only based on this provision, even though it is a definition clause.
For the reasons stated above, the limiting construction of the City Ordinance as suggested by the majority opinion can also be deemed to satisfy the second requirement indicated in the judgment of the Grand Bench of the Supreme Court.
In this regard, the dissenting opinions place emphasis on the fact that Article 2, item 7 of the City Ordinance includes, in the definition of the term "motorcycle gang," not only a motorcycle gang in the original meaning but also a "group of persons who congregate, hold an assembly or show their strength at a public place while wearing peculiar clothes or clothes with the name of their group indicated thereon that would make the public feel insecurity or fear."
However, whether or not "it [is] possible to understand, by reading the provisions of the law or ordinance, the criterion by which the applicability of the regulation [to a specific expression] can be determined" should be determined by not only paying attention to the definition clause but also taking into consideration other related clauses that can be found throughout the City Ordinance. When considering from such a broad viewpoint, I can draw a conclusion that adopting the limiting construction on the term "motorcycle gang" used in the City Ordinance as suggested by the majority opinion may be in line with the requirements indicated in the judgment of the Grand Bench of the Supreme Court and may also be fully reasonable.

3. In this case, a person who has committed an act that shall be excluded from the scope of acts to be regulated under the City Ordinance by the limiting construction may be advantaged but never disadvantaged by the limiting construction. On the other hand, for a person who has committed an act that cannot be excluded from the scope of acts to be regulated even by the limiting construction (the accused in this case is deemed to be such person), whether or not to adopt such construction does not advantage or disadvantage him/her. There may be the possibility that the general public might be mentally "daunted" by the concern that if, thanks to the limiting construction, the City Ordinance can avoid being found to be unconstitutional and void and continue to exist, a group that is not a motorcycle gang in the original meaning or group similar thereto would be subject to regulation, or even where such a situation does not occur, a society that is generally indifferent to guarantee of freedom of expression would emerge. On the other hand, however, the general public can expect to enjoy practical benefit from the City Ordinance, i.e. avoid being annoyed by motorcycle gangs. Taking into consideration these points, I consider it is appropriate to adopt the limiting construction also from the viewpoint of balance of interests.

4. The City Ordinance has been established with the primary aim of eliminating motorcycle gangs from Hiroshima City, thereby developing a community where the safety and security of the life of city residents are assured, and it deserves appreciation to some extent as the fruits of the city government's efforts to fulfill its responsibility in line with the purpose of local autonomy.
In my opinion, it is appropriate for this court to, while maintaining the determination made by the court of first instance and the court of second instance, only indicate, in this court's judgment document, the part of the City Ordinance that is found to be too broad under the Constitution, leaving the Hiroshima City Government's discretion to take voluntary measures such as early and appropriate revision.

The dissenting opinion by Justice FUJITA Tokiyasu is as follows.
By adopting a constitutional limiting construction of the City Ordinance, the majority opinion rejects the argument that the scope of persons or acts subject to regulation under the provisions of the City Ordinance including Article 19, Article 16, para.1, item 1, and Article 17 is too broad and therefore the City Ordinance is unconstitutional under Article 21, para.1 and Article 31 of the Constitution. However, I cannot agree to adopt such a constitutional limiting construction in this case.
Needless to say, freedom of assembly and association as well as expression, which is included in the category of freedom of mind guaranteed under the Constitution, must be guaranteed to the fullest extent. A constitutional limiting construction of a law or ordinance that regulates this freedom should be permitted only where the construction clearly distinguishes what is subject to regulation and what is not, and also expressly indicates that what can be constitutionally regulated shall only be the subject to regulation, and where for the general public, it is possible to understand, by reading the provisions of the law or ordinance, the criterion by which the applicability of the regulation to a specific expression can be determined. In this regard, the majority opinion concludes that, despite the broad definition of the term "motorcycle gang" as set forth in Article 2, item 7 of the City Ordinance, it is possible to understand, by reading the provisions of Article 1 of the City Ordinance, which indicates its purpose, and Article 5 and Article 6 of the ordinance as well as the provisions of Article 3, etc. of the Implementation Regulations for the City Ordinance, that the subject to regulation under the City Ordinance is limited to a motorcycle gang in the generally accepted meaning or group equivalent thereto that conducts reckless driving or shows their strength at an assembly or at a ceremony. However, where ordinary people read the provisions of a prefectural or municipal ordinance in which the term "motorcycle gang," the subject to regulation, is defined, it is very natural to literally construe the term "motorcycle gang" as defined in these provisions (otherwise, it would be meaningless to "define" a term used in a text of law). As far as the term set forth in Article 2, item 7 is literally construed, it is fully possible to adopt a construction, with regard to the provisions cited by the majority opinion including Article 5 and Article 6 of the City Ordinance and Article 3, etc. of the Implementation Regulations, to the effect that the term "motorcycle gang" does not necessarily only refer to a motorcycle gang in the generally accepted meaning and a group equivalent thereto, contrary to the construction suggested by the majority opinion. Furthermore, we should also pay attention to Article 16 of the City Ordinance which provides that " ‘Any person' shall not conduct any of the following acts." The construction suggested by the majority opinion may be accepted only where we can fully understand the specific backgrounds and legislative history of the establishment of the City Ordinance by the Hiroshima City Government and we can also recognize that the roughness of the provisions of the ordinance, for which the majority opinion criticized holding that "if the City Ordinance were literally applied, the scope of persons or acts subject to regulation under the City Ordinance would be so broad as to raise an issue of unconstitutionality under Article 21, para.1 and Article 31 of the Constitution," simply derives from the clumsiness of the city government's legislative technique. I should say that it is more or less unnatural to draw a construction as the one suggested by the majority opinion merely from the text of the ordinance.
As the concurring opinion points out, the act for which the accused is charged in this case is a typical one that is targeted as the subject to regulation under the City Ordinance in order to maintain the public's peaceful existence, and it is obviously in violation of the City Ordinance irrespective of whether or not to adopt the constitutional limiting construction suggested by the majority opinion. However, needless to say, when the accused alleges to the court that the penal provision applied to him/her is unconstitutional and void, there is no limit to the scope of grounds for unconstitutionality that he/she may claim, and when this court determines whether or not the accused's allegation is acceptable (or whether or not the penal provision in question is constitutional), the court is not required to examine in advance the specific act committed by the accused. If this court should find the penal provision to be unconstitutional and void on the grounds that the scope of persons or acts subject to punishment is too broad, this would mean that the accused was about to be punished by a law or ordinance that is unconstitutional and void, in which case it cannot be said that the legitimate rights guaranteed to the accused under the Constitution cannot be infringed irrespective of what kind of construction is adopted for the City Ordinance.
Although I accept the idea that a constitutional limiting construction of a law or ordinance is not totally impermissible, I still have a serious doubt about whether or not it is appropriate at all for the Supreme Court to affirm the constitutionality of a law or ordinance by going so far as to adopt an unnatural construction of the wording of its provisions, especially the definition clause. In this case, if the City Ordinance was established by the Hiroshima City Government truly with the legislative intention as found by the majority opinion, it does not seem so technically difficult to revise the problematic provisions, including the definition of the term "motorcycle gang," in line with the purpose of the ordinance. Therefore, I consider that in this case, this court should not affirm the validity of the City Ordinance by going so far as to adopt a constitutional limiting construction but should rather determine it to be unconstitutional and void and order the city government to revise it immediately.

The dissenting opinion by Justice TAHARA Mutsuo is as follows.
The majority opinion, while admitting that if the City Ordinance were literally applied, it would raise an issue of unconstitutionality under Article 21, para.1 and Article 31 of the Constitution, concludes that the ordinance cannot be deemed to be unconstitutional under Article 21, para.1 or Article 31 of the Constitution if it is limitedly construed. In my opinion, however, when considering the City Ordinance from the viewpoint of ordinary people having an ordinary ability to judge, I find it extremely difficult to reach the limiting construction as suggested by the majority opinion only from the wording of its provisions, and I must say that the City Ordinance is unconstitutional under Article 11, Article 13, Article 21, and Article 31 of the Constitution because of the broadness of its provisions and the lack of balance between the interest to be achieved by the regulation thereunder and the freedom to be regulated thereby. The reasons for my opinion are as follows.
1. The scope of persons and scope of acts to be regulated by the City Ordinance are too broad.
(1) The persons subject to regulation
As cited in 1(1) of the majority opinion, the City Ordinance imposes a criminal penalty, under Article 19, on a person who has conducted any of the acts set forth in Article 16, para.1, item 1 and then violated an order of discontinuation or order of leave (hereinafter referred to as an "order of discontinuation, etc.") issued by the city mayor (or a person to whom the mayor's authority under the City Ordinance is delegated) under Article 17. According to the main clause of Article 16, para.1, "any person" shall be the subject to regulation, and there is no limitation to the scope of persons to whom Article 16, para.1 is applicable, such as "motorcycle gang" or "group that can be regarded as being identical thereto," which are targeted as the subject to regulation under the City Ordinance.
The majority opinion argues that, taking into consideration the purpose clause of the City Ordinance as well as the facts that the City Ordinance contains a number of provisions primarily aimed at preventing reckless driving and that Article 3 of the Implementation Regulations for the City Ordinance, which provide supplementary regulations under delegation by the City Ordinance, specifies the requirements for deciding whether or not to issue an order of discontinuance, etc. under Article 17 of the City Ordinance on the assumption that Article 17 of the City Ordinance is to be applied to motorcycle gangs, "despite the definition set forth in Article 2, item 7 of the City Ordinance, we can construe that the scope of ‘motorcycle gang' subject to regulation under the City Ordinance only includes, apart from motorcycle gangs in the original meaning that are organized for the purpose of conducting reckless driving, groups that are similar to motorcycle gangs and can be regarded as being identical thereto according to the generally accepted ideas because of their clothes, flags or behavior." However, I must say that it is significantly difficult for ordinary people having an ordinary ability to judge to construe the term "any person" used in the provision of Article 16 of the City Ordinance in such a limited way as the majority opinion does. What is more, in the deliberation at the committee of the city assembly held in the course of establishing the City Ordinance, the committee rejected the proposal to revise the definition of the term "motorcycle gang" set forth in Article 2, item 7 of the City Ordinance to "a group organized for the purpose of conducting reckless driving," and the proposal to revise the draft of Article 16, para.1 of the ordinance by replacing "Any person" with "Any motorcycle gang member." Taking into consideration such legislative history of the establishment of the ordinance, it should be deemed to be difficult to adopt the limiting construction suggested by the majority opinion.
(2) The acts subject to regulation
An order of discontinuation, etc. under the City Ordinance may be issued upon the act of congregating or holding an assembly at a public place managed by the city government, without obtaining approval or permission of the city government, in a manner that would make the public feel insecurity or fear while showing one's strength by wearing peculiar clothes, entirely or partly covering one's face (hereinafter collectively referred to as "wearing peculiar clothes, etc."), forming a circle or hoisting a flag (Article 16, para.1, item 1, Article 17).
Article 3 of the Implementation Regulations for the City Ordinance specifies the factors to be considered when issuing an order of discontinuance, etc. under Article 17 of the City Ordinance. While some of these factors are associated with a motorcycle gang, such as the one set forth in item 1 that is discussed in detail later, others cannot be deemed to be directly associated with a motorcycle gang in themselves, such as the "existence of a person who entirely or partly covers his/her face obviously in an attempt to avoid being identified" (item 2), "manner of congregating or holding an assembly such as forming a circle while keeping others out" (item 3), and "any other act that is generally considered to be an act of showing one's strength" (item 6). The scope of acts subject to regulation under these provisions is too broad, and in particular, item 6 is a kind of general provision with no limitation attached thereto. Furthermore, the Implementation Regulations are not supposed to govern the content of the City Ordinance but only specify rules for issuing an order of discontinuation, etc.
Next, I examine the major acts regulated by the City Ordinance.
(a) Clothes
Article 17 of the City Ordinance regulates the act of congregating or holding an assembly while wearing "peculiar clothes." Article 3, item 1 of the Implementation Regulations appears to be setting a certain limitation to the concept of "peculiar clothes" by stating, "existence of a person wearing clothes, etc. on which the term ‘motorcycle gang' or ‘roaring sound' or the name of a motorcycle gang or any other words and phrases that emphasize the group's status as a motorcycle gang are embroidered, printed or otherwise indicated." However, Article 3, item 1 of the Implementation Regulations is not intended to provide for a construction of the concept of "peculiar clothes" set forth in Article 17 of the City Ordinance. What is more, since what is meant by the term "peculiar clothes" is not limited by Article 3, item 1 of the Implementation Regulations, an order of discontinuation, etc. may be issued where a person is "congregating or holding an assembly such as forming a circle while keeping others out" (item 3) while wearing "peculiar clothes" even when he/she does not wear such clothes as described in Article 3, item 1 of the Implementation Regulations. After all, clothes subject to regulation under the City Ordinance are not limited to "those that remind people of a motorcycle gang or any other group equivalent thereto when seeing the person who wears them."
Without needing to refer to Article 11 or Article 13 of the Constitution, every person has freedom to choose what to wear in a public place such as on the street or in a park. Even where the clothes worn by a person make the public feel discomfort, insecurity or fear, such clothes must not be the subject of any regulation unless they are in violation of the Penal Code, the Minor Offense Act, etc.
In particular, where a person wears specific clothes as a way of expressing his/her thought, such act of expression must be respected under Article 21 of the Constitution. There may be such acts of expression by way of dressing oneself that appear to be strange according to the common standards of today's society, including hair styles and body painting. For instance, as a means to cry out for peace, some people wear shirts on which pictures of skeletons or skulls are printed, which may appear to be likely to make other people feel insecurity or fear when seeing them, but needless to say, these acts of expression must not be regulated without careful thought. Nevertheless, under the City Ordinance, an order of discontinuation, etc. may also be issued upon the act of wearing these clothes.
(b) The act of "entirely or partly covering one's face"
Article 17 of the City Ordinance does not set any limitation to this act. On the other hand, Article 3, item 2 of the Implementation Regulations sets forth, as a requirement for issuing an order of discontinuation, etc., the "existence of a person who entirely or partly covers his/her face obviously in an attempt to avoid being identified." However, I cannot find any direct relevance between the act of entirely or partly covering one's face and a motorcycle gang or similar group only by reading these provisions.
We can often find some people conducting, in their daily activities, the act of entirely or partly covers their faces in an attempt to avoid being identified. For instance, it is well known that some members of extremist groups wear helmets and cover their faces with towels when they have a gathering, and members of some religious groups also cover their faces with veils. All these acts may also be subject to an order of discontinuation, etc. if people who conduct the acts congregate or hold an assembly, thereby making the public feel insecurity or fear.
(c) The act of "congregating"
The term "congregating" (which is a translation of the Japanese term "ishu" used in the City Ordinance) means "getting together in mass like a hedgehog's spines" (Kojien Dictionary, the fifth edition). Unlike people who participate in an assembly, people who congregate do not share any subjective purpose but they come together individually of their own free will at any time, such as those who are nothing more than curiosity seekers or spectators.
Without needing to refer to Article 11 or Article 13 of the Constitution, people in a democratic nation are free to move and act in a public space such as on the street or in a park. Under the City Ordinance, however, people who "congregate" may be subject to regulation if they wear "peculiar clothes, etc." (Also under the City Ordinance, the act of "congregating" at a public place managed by the city government without obtaining approval or permission of the city government may be subject to an order of discontinuation, etc. However, there is no organizer among people who "congregate," which means that there is no person who can obtain approval or permission of the city government in advance, and therefore there can be no such people who "congregate with approval or permission of the city government." Consequently, issuing an order of discontinuation, etc. upon a group of people who congregate and imposing a criminal penalty on them if they violate the order is equal to charging such people for an act that would constitute a crime unless impossible conditions attached thereto are achieved, and I must say that the City Ordinance is also unconstitutional under Article 31 of the Constitution in this respect.)
(3) Unconstitutionality on the grounds that the scope of persons and scope of acts subject to regulation are too broad
As examined in (1) and (2) above, under the City Ordinance, beyond its purpose clause, "any person" shall be the subject to regulation thereunder, and far beyond the bounds of the purpose of establishment thereof, the scope of acts subject to regulation could include the acts of wearing peculiar clothes, etc. in general. I must say that the scope of acts subject to regulation by the ordinance is too broad and therefore unconstitutional under Article 31 of the Constitution, and must also say that it infringes freedom of action that is necessarily guaranteed to people in a democratic nation or guaranteed without needing to refer to Article 11 and Article 13 of the Constitution, and it is also unconstitutional under Article 21 of the Constitution for infringing freedom of expression and assembly.

2. The City Ordinance significantly lacks balance between the interest to be achieved by the regulation and the freedom to be regulated.
(1) Legal interest protected and act of infringement to be regulated by the City Ordinance
(a) Legal interest protected by the City Ordinance
The City Ordinance has been established for the purpose of restricting motorcycle gangs from showing their strength in specified ways, with the aim of developing a community where the safety and security of the life of city residents are assured (Article 1). The specific interest to be protected by the City Ordinance by imposing a criminal penalty for its infringement is, among the interests in assuring the safety and security of the life of city residents, the city residents' (the public's) interest of using a public place managed by the city government without feeling "insecurity" or "fear" caused by a person showing one's strength by wearing peculiar clothes, etc., which is only a very limited part of the interests in assuring the safety and security of the life of city residents. Furthermore, such "insecurity" or "fear" is not so concrete but merely vague, as described below.
(b) Act of infringement to be deterred by the City Ordinance
The act to be deterred by the City Ordinance by imposing a criminal penalty thereon is the act of showing one's strength by congregating or holding an assembly while wearing peculiar clothes, etc., thereby making the public feel "insecurity" or "fear." The act of showing one's strength per se, as is clear from its wording, is not a specific criminal act or an act that is associated with a criminal act. In addition, although the City Ordinance does not specify what kind of "insecurity" or "fear" might be caused by the act of showing one's strength, it is at least obvious from its provisions that such "insecurity" or "fear" is not that arising from the occurrence of a specific fact of a crime or the likelihood of such occurrence. Thus, the object of "insecurity" or "fear" to be prevented by the City Ordinance can be construed to mean an act that has not yet matured to be a fact of a crime, and also taking into consideration the legislative history of the City Ordinance, it can be construed to mean nothing more than "insecurity" or "fear" arising from the likelihood of being a target for "picking a fight with," "making up a pretext for a quarrel with," "staring fiercely at" or "intimidating" by persons who congregate or hold an assembly while wearing peculiar clothes, etc.. The City Ordinance should be understood to aim to prevent an act of showing one's strength that might cause such a vague "insecurity" or "fear."
(2) The acts subject to regulation under the City Ordinance and the content of regulation
The acts subject to regulation under the City Ordinance relate to freedom of dressing oneself at a public place, which falls under the category of freedom of action that has existed in democratic society before it was guaranteed under Article 11 or Article 13 of the Constitution, or freedom of expression by way of dressing or freedom of assembly of persons who express themselves by dressing.
Furthermore, the City Ordinance directly regulates these freedoms held by every citizen by "order[ing] the person who conducts the said act to discontinue the said act or leave the said place." In other words, under the City Ordinance, the mayor or a person delegated the authority from the mayor may order a person who "wears peculiar clothes, etc." to discontinue such act, or more specifically, order the person to take off such clothes (or remove his/her body painting) or dissolve the congregating or assembly or leave the public place (in this case, the official of the city government who was authorized to issue an order of discontinuation, etc. on behalf of the city mayor actually gave an order to the accused by saying, "Your act is against the city ordinance, so take off your tokko-fuku or leave here immediately.")
(3) There is a significant lack of reasonable balance between the legal interest protected and the act of infringement thereof regulated by the City Ordinance, on one hand, and the content of regulation, on the other hand.
The legal interest to be protected by the City Ordinance is, as explained above, the public's interest of using a public place managed by the city government without feeling "insecurity" or "fear," and the act of infringement to be regulated by the City Ordinance is the act of showing one's strength to make the public feel "insecurity" or "fear," which is in effect nothing more than a vague "insecurity" or "fear" for something that has not matured to be the occurrence of a specific fact of a crime or the likelihood of such occurrence.
On the other hand, the subject to be regulated by the City Ordinance by imposing a criminal penalty, which is enforced via the city mayor's issuance of an order of discontinuation, etc., is the freedom of dressing and freedom of action, which are primitive freedoms that have existed before it was guaranteed by the Constitution, as well as freedoms of expression and assembly. Furthermore, as explained above, the City Ordinance directly regulates these freedoms.
These freedoms must be protected to the fullest extent as fundamental freedoms in a democratic nation, and it is generally permissible to regulate them only to the extent that such regulation is necessary for managing a public place, for instance, for maintaining orderly traffic on the roads (Article 6, para.4 and Article 76, para.4 of the Road Traffic Act), or coordinating use of parks (Article 4, para.4, item 4 of the Hiroshima City Ordinance on Parks that requires the city mayor's permission to use a park in a manner to exclusively occupy the whole or part of the park in order to hold an assembly or any other similar event there, and Article 5, item 7 of the same ordinance that prohibits any act that may cause troubles to other park users). I should say that in order to regulate the aforementioned freedoms beyond this extent, there must be sufficient reasons to find reasonable needs for such regulation, e.g. maintenance of public safety and prevention of danger, and it is also necessary for the regulation to be within the minimum extent necessary for achieving that aim.
However, as I explained above, what is to be protected by the City Ordinance is nothing more than a vague "insecurity" or "fear" that may be felt by the public who use a public place managed by the city government, whereas what is to be regulated is freedoms of dressing and action or freedoms of though and expression, all of which are fundamental freedoms for human beings, and what is more, the City Ordinance directly regulates these freedoms by way of the threat of a criminal penalty. In this respect, I should inevitably find a large gap between the legal interest and the act of infringement thereof, on one hand, and the content of regulation, on the other hand.
Consequently, also from this perspective, I must conclude that the City Ordinance is unconstitutional under Article 11, Article 13, Article 21, and Article 31 of the Constitution.

3. Limiting construction
The majority opinion concludes that the unconstitutionality of the City Ordinance can be overcome by construing it in a limited manner, and Justice HORIGOME Yukio additionally explains why a constitutional limiting construction is allowed for the City Ordinance.
To date, in its precedent judgments including the one cited in the concurring opinion by Justice HORIGOME Yukio, the Supreme Court rejected the allegations of unconstitutionality of laws or ordinances on a case-by-case basis by adopting limiting constructions.
I myself do not deny the possibility of adopting limiting constructions as suggested by the Supreme Court in the past cases. However, as is shown by the fact that none of the relevant past cases were free from dissenting opinions or other additional opinions, consensus has not yet been reached as to in what cases a limiting construction is allowed to declare the constitutionality of a law or ordinance.
In my opinion, irrespective of whether or not it is formally in conflict with the rules under Article 21 or Article 31 of the Constitution, a law (or ordinance) may be declared to be constitutional through a limiting construction only where, after comprehensively considering various factors concerned, including (1) the legislative purpose of the law (or ordinance), (2) the necessity to regulate the act subject to regulation, (3) the possibility that people having an ordinary ability to judge can adopt the limiting construction only by reading the provisions of the law (or ordinance), and (4) the likelihood that the law (or ordinance) may be applied beyond the bounds of the limiting construction and whether or not the existence of such likelihood may daunt citizens (city residents) and to what extent it may daunt them, it is found that the limiting construction will not cause any harmful effect.
When considering from this viewpoint, I must say that, as examined in 1 above, it is significantly difficult for ordinary people having an ordinary ability to judge to understand that the City Ordinance should be construed narrowly as suggested by the majority opinion, and I must also say that, as explained in 2 above, there is a significant lack of reasonable balance between the legal interest to be protected and the act of infringement thereof regulated by the City Ordinance, on one hand, and the freedom to be regulated, on the other hand. I therefore cannot affirm the constitutionality of the City Ordinance.
Where the City Ordinance is found to be constitutional based on the limiting construction as suggested by the majority opinion, if the City Ordinance is applied beyond the bounds of the narrow construction, this would result in directly regulating citizens' (or city residents') freedom of action or freedom of expression or assembly, which fall within the category of freedom of mind, and even if the City Ordinance is, when it is later applied to a specific case, determined by the court to be illegal as going beyond the bounds of that limiting construction, the citizens' (city residents') freedom of mind already infringed cannot be restored. Furthermore, once the City Ordinance is applied beyond the bounds of the limiting construction, most citizens (city residents) will, until it is finally determined to be unconstitutional and void, have to act while keeping in mind the possibility that the City Ordinance may be applied beyond the bounds of the limiting construction, which could seriously daunt citizens' (city residents') actions.
I recognize the legality of imposing regulation under a prefectural or municipal ordinance for the purpose of preventing motorcycle gangs from behaving outrageously at a public place in a manner that disturbs ordinary people's use of the public place. The City Ordinance can be deemed to have been established more or less for such purpose, and the act for which the accused is charged in this case can be deemed to fall within the scope of major acts subject to regulation under the City Ordinance. However, since the City Ordinance is unconstitutional and void as explained above, it is inevitable that the accused's act cannot be criminally charged.

Justice HORIGOME Yukio
Justice FUJITA Tokiyasu
Justice NASU Kohei
Justice TAHARA Mutsuo
Justice KONDO Takaharu