2011.05.30

2010(Gyo-Tsu)54

Minshu Vol. 65, No. 4

Judgment concerning the case in which the court ruled that the official order issued by the principal of a public high school to require a teacher of the school to stand facing the national flag and sing the national anthem during the singing of the national anthem in the school's graduation ceremony is not in violation of Article 19 of the Constitution

Case to seek revocation of the refusal of re-employment, etc.

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of October 15, 2009

Given the factual circumstances (1) to (3) below, as indicated in the judgment, the official order issued by the principal of a public high school to require a teacher of the school to stand facing the national flag and sing the national anthem during the singing of the national anthem in the school's graduation ceremony is not in violation of Article 19 of the Constitution as infringing the teacher's freedom of thought and conscience: (1) The act of standing and singing as described above has a nature of a customary and formal behavior practiced in ceremonial events of schools, and it cannot be deemed to be inseparably connected with the denial of the teacher's view of history or view of the world that "Hinomaru" and "Kimigayo" played a certain role in relation to the prewar militarism, etc., nor can the official order be deemed to deny such view of history or view of the world itself. (2) The act of standing and singing as described above is also recognized from outside as a customary and formal behavior practiced in ceremonial events of schools, and it is difficult to evaluate that this act could be recognized from outside as an expression of a particular thought or objection thereto. The official order does not force the teacher to have a particular thought or prohibit him/her from having an objection thereto, nor does it compel the teacher to confess whether he/she has or does not have a particular thought. (3) The act of standing and singing as described above is regarded as an act that has an aspect as an expression of one's respect of the national flag and the national anthem, and if an individual who has the view of history or view of the world as explained in (1) above is required to perform such act, he/she would eventually be required to perform an external act which conflicts with behavior deriving from that view of history or view of the world. On the other hand, the official order was issued for the purpose of holding the ceremony in a well-ordered manner as appropriate for an educational event and making it proceed smoothly, while giving due consideration to students, etc., in line with the purports of the provisions of the relevant laws and regulations, etc. specifying the objectives of high school education and the significance, ideal, etc. of a graduation ceremony and other ceremonial events, and also in consideration of the nature of the status of local public officials and the public aspect of their duties. (There are concurring opinions)

Article 15, paragraph (2) and Article 19 of the Constitution, Articles 30 and 32 of the Local Public Service Act, Article 18, item (ii), Article 28, paragraph (3), Article 36, item (i), Article 42, item (i), and Article 51 of the School Education Act (prior to the revision by Act No. 96 of 2007), Article 1, paragraph (1) and Article 2, paragraph (1) of the Act on National Flag and National Anthem, Chapter 4, II-C(1) and III-3 of the Courses of Study for High Schools (Public Notice of the Ministry of Education No. 58 of 1999; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 38 of 2009) Article 15, paragraph (2) of the Constitution All public officials are servants 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 Every official, as a servant of all citizens, 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 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 official orders of their superiors. Article 18, item (ii) of the School Education Act (prior to the revision by Act No. 96 of 2007) (Objectives of Elementary School Education) In elementary school education, efforts shall be made to attain the objectives listed in the following items in order to achieve the purpose prescribed in the preceding Article: (ii) to develop a proper understanding of the current situation and tradition of the children's hometowns and of the State, and further cultivate the spirit of international cooperation. Article 28, paragraph (3) of the School Education Act (prior to the revision by Act No. 96 of 2007) (Principals, Vice-principals, Teachers and Other Officials) (3) A principal shall manage the affairs of the school and supervise other officials belonging thereto. Article 36, item (i) of the School Education Act (prior to the revision by Act No. 96 of 2007) (Objectives of Junior High School Education) In junior high school education, efforts shall be made to attain the objectives listed in the following items in order to achieve the purpose prescribed in the preceding Article: (i) to attain the objectives of elementary school education to a further extent, and foster the qualities necessary for members who form the State and society. Article 42, item (i) of the School Education Act (prior to the revision by Act No. 96 of 2007) (Objectives of High School Education) In high school education, efforts shall be made to attain the objectives listed in the following items in order to achieve the purpose prescribed in the preceding Article: (i) to develop and expand further the achievement of junior high school education, and foster the qualities necessary for promising members who form the State and society. Article 51 of the School Education Act (prior to the revision by Act No. 96 of 2007) The provisions of Article 18-2, Article 21, Article 28, paragraphs (3) through (12), and Article 34 shall apply mutatis mutandis to high schools. In this case, the phrase "items of the preceding Article" in Article 18-2 shall be deemed to be replaced with "items of Article 42." Article 1, paragraph (1) of the Act on National Flag and National Anthem (1) The national flag shall be the flag of the Rising Sun. Article 2, paragraph (1) of the Act on National Flag and National Anthem (1) The national anthem shall be Kimigayo. Chapter 4, II-C(1) and III-3 of the Courses of Study for High Schools (Public Notice of the Ministry of Education No. 58 of 1999; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 38 of 2009) Chapter 4 Special Activities II. Contents C. School events As school events, schools shall conduct, on a school-wide basis or in units of grade or any other group similar thereto, experience-based activities that will make school life well-ordered and full of variety, intensify the students' group consciousness, and contribute to the enrichment and development of school life. (1) Ceremonial events Conduct activities that will give meaningful variations and breakpoints to school life, enable students 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 students to sing the national anthem.

The final appeal is dismissed. The appellant of final appeal shall bear the cost of the final appeal.

I. Concerning Reason II for final appeal argued by TSUDA Genji, et al., alleging that the official order in question violates Article 19 of the Constitution 1. The appellant of final appeal, while working as a teacher at a Tokyo Metropolitan high school, did not comply with the official order issued by the principal of the school to require the appellant to stand facing the national flag and sing the national anthem during the singing of the national anthem in the graduation ceremony (the act required by this official order shall hereinafter be referred to as the "act of standing and singing"), and failed to stand during the singing of the national anthem. Subsequently, in the selection process for recruiting personnel as part-time commissioned officials, which are categorized as special service positions, and for the positions requiring full-time service or part-time positions, for which the appellant applied before retiring at the mandatory retirement age, the appellant was rejected by the Tokyo Metropolitan Board of Education (hereinafter referred to as "Tokyo BOE"), on the grounds that his/her failure to stand as described above constituted violation of an official order, etc. In this litigation, the appellant seeks damages under Article 1, paragraph (1) of the State Redress Act against the appellee of final appeal, alleging that said official order issued by the school principal is in violation of Article 19 of the Constitution and the Tokyo BOE's rejection of the appellant is illegal. 2. The outline of the facts legally determined by the court of prior instance is as follows. (1) Chapter 4, II-C(1) of the Courses of Study for High Schools (Public Notice of the Ministry of Education No. 58 of 1999; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 38 of 2009; hereinafter referred to as the "Courses of Study for High Schools"), established under the provisions of Article 43 of the School Education Act (prior to the revision by Act No. 96 of 2007; the same shall apply hereinafter) and Article 57-2 of the Ordinance for Enforcement of the School Education Act (prior to the revision by Ordinance of the Ministry of Education, Culture, Sports, Science and Technology No. 40 of 2007; the same shall apply hereinafter), specifies "ceremonial events" which are included in "school events" within the category of "special activities," which forms the curricula together with another category of activities, "coursework," and according to this specification, "ceremonial events" means "to conduct activities that will give meaningful variations and breakpoints to school life, enable students to enjoy a solemn and fresh atmosphere, and motivate them to make a start for new school life." In III-3 of this chapter, entitled "Development of teaching plans and treatment thereof" under "Special Activities," it is provided that "In the enrollment ceremony, graduation ceremony, etc., schools shall, in light of the significance thereof, hoist the national flag and instruct students to sing the national anthem" (this provision shall hereinafter be referred to as the "national flag and national anthem clause"). (2) The Chair of the Tokyo BOE, as of October 23, 2003, issued a circular notice to the principals of Tokyo Metropolitan high schools, etc., entitled "Circular Notice on the Implementation of the Hoisting of the National Flag and the Singing of the National Anthem in the Enrollment Ceremony, Graduation Ceremony, etc." (hereinafter referred to as the "Circular Notice"). It notified the school principals that (i) they should hold an enrollment ceremony, graduation ceremony, etc. properly in accordance with the courses of study, and that (ii) when holding an enrollment ceremony, graduation ceremony, etc., they should follow the prescribed implementation guidelines, such as that the national flag shall be hoisted at the front on the stage in the ceremony hall, and the teachers and other officials shall stand up at the designated seats in the ceremony hall, facing the national flag, and sing the national anthem. (3) In March 2004, the appellant was in service as a teacher at Tokyo Metropolitan High School A. On March 1, the appellant received an official order issued by the principal of said school to require the appellant, based on the Circular Notice, to perform the act of standing and singing during the singing of the national anthem in the graduation ceremony scheduled on March 5 (this official order shall hereinafter be referred to as the "Official Order"). However, the appellant did not comply with the Official Order, and failed to stand during the singing of the national anthem in that graduation ceremony. Accordingly, on March 31, the Tokyo BOE gave an admonition to the appellant, on the grounds that his/her failure to stand as described above was in violation of an official order issued by his/her superior and inappropriate as an act of a servant of all citizens, and therefore the appellant fell under Article 29, paragraph (1), items (i), (ii), and (iii) of the Local Public Service Act. (4) With regard to teachers and other officials, etc. who have retired on reaching the mandatory retirement age or left office for other reasons, the Tokyo BOE implements the system of newly employing such teachers and officials, etc. as part-time commissioned officials (Article 3, paragraph (3), item (iii) of the Local Public Service Act) and also implements the system of re-employing them for positions requiring full-time service (Article 28-4 of said Act) or part-time positions (Article 28-5 of said Act). The appellant, before retiring at the mandatory retirement age as of March 31, 2007, applied for participating in the selection process for recruitment under said employment and re-employment systems in October 2006. The Tokyo BOE rejected the appellant under both systems, on the grounds that his/her failure to stand mentioned above was misconduct that constituted violation of an official order issued by his/her superior. 3(1) As the reason why he/she refused to perform the act of standing and singing during the singing of the national anthem in the graduation ceremony, the appellant argues that he/she has a view that it is against his/her consciousness as a teacher to force "Hinomaru" and "Kimigayo" on Korean and Chinese students with permanent residence in Japan, who learn Japan's history of wars of aggression, by incorporating them as the national flag and the national anthem in the program of the graduation ceremony. This view can be regarded as a belief, etc. in social life or education deriving from the appellant's personal view of history or view of the world that "Hinomaru" and "Kimigayo" played a certain role in relation to the prewar militarism, etc. However, it is a well-known fact that, at the time when the Official Order was issued, the hoisting of "Hinomaru" as the national flag and the singing of "Kimigayo" as the national anthem were widely practiced in graduation ceremonies and other ceremonies of public high schools. The act of standing and singing during the singing of the national anthem in a graduation ceremony and other ceremonies which are categorized as ceremonial events of schools, generally and objectively, has a nature of a customary and formal behavior practiced in these ceremonies, and it is also recognized from outside as such behavior. Consequently, the aforementioned act of standing and singing, in light of the nature thereof, cannot be deemed to be inseparably connected with the denial of the appellant's view of history or view of the world, nor can the Official Order, which required the appellant to perform the act of standing and singing, be deemed to deny such view of history or view of the world itself. Furthermore, when considering the aforementioned act of standing and singing in terms of how it is recognized from outside, it is difficult to evaluate that this act could be recognized from outside as an expression of a particular thought or objection thereto. It would be further difficult to make such evaluation where this act is to be performed under an official order issued by one's superior. The Official Order does not force the subject person to have a particular thought or prohibit him/her from having an objection thereto, nor does it compel the subject person to confess whether he/she has or does not have a particular thought. From these perspectives, the Official Order cannot be deemed to directly constrain an individual's freedom of thought and conscience. (2) It is true that the act of standing and singing does not directly fall within the category of coursework, etc. or administrative affairs that teachers are routinely in charge of or engaged in, and generally and objectively, it is regarded as an act that has an aspect as an expression of one's respect of the national flag and the national anthem. It follows that, if an individual who thinks that he/she cannot agree to express his/her respect of "Hinomaru" or "Kimigayo," which he/she negatively evaluates in relation to his/her personal view of history or view of the world, is required to perform an act that has an aspect as an expression of his/her respect of these objects, he/she would eventually be required to perform an external act (an act that has an aspect as an expression of one's respect), which conflicts with behavior deriving from his/her personal view of history or view of the world (the refusal to express one's respect), despite that the required act is not directly intended to express a particular thought which is contrary to the individual's personal view of history or view of the world, and to that extent, it is difficult to deny that such requirement could somewhat indirectly constrain the individual's freedom of thought and conscience. The appellant also argues that an individual's freedom of thought and conscience could be infringed not only in relation to the individual's personal view of history or view of the world but also in relation to his/her belief that one must not be forced to behave uniformly in such a ceremony as a school's graduation ceremony. However, although whether or not there is any constraint in relation to such belief could be an issue, in the situation where an individual is required to perform such an external act as described above, this issue is supposed to be covered by a broader issue as to whether or not there is any indirect constraint in relation to the individual's personal view of history or view of the world, and there is no need to examine these issues separately. Now, we examine whether or not there is such indirect constraint. An individual's personal view of history or view of the world could be of great variety. If such view is not kept inside the individual's mind but is represented by his/her external behavior in the form of the performance of an act or refusal to perform an act, which derives from that view, such external behavior might be subject to a certain restriction when it conflicts with the norms of society in general, etc. If such restriction is necessary and reasonable, any indirect constraint as mentioned above which is enforced by way of that restriction would be permissible as well. Accordingly, even in such circumstances where, if an individual is required to perform a certain act by an official order issued by his/her superior, he/she would eventually be required to perform an external act which conflict with behavior deriving from his/her personal view of history or view of the world, and to that extent, the official order could somewhat indirectly constrain the individual's freedom of thought and conscience, such official order might have various purposes and contents, and the manner in which any constraint is enforced by way of said restriction might also vary depending on factors such as the content and nature of the act subject to the official order and the impact thereof on the individual's inner mind. For this reason, whether or not such indirect constraint is permissible should be judged by comprehensively weighing the purpose and content of the official order as well as the manner in which any constraint is enforced by way of said restriction, and examining this issue from the perspective of whether or not the official order is deemed to be necessary and reasonable to a degree that said constraint caused thereby is permissible. (3) This reasoning can be applied to this case as follows. As mentioned above, the act of standing and singing required by the Official Order has an aspect as an expression of one's respect of the objects which the appellant negatively evaluates in relation to his/her view of history or view of the world, and from the standpoint of the appellant who cannot agree to express such respect, said act would be an external act which conflicts with behavior deriving from his/her view of history or view of the world (the refusal to express one's respect). In light of this, the Official Order, from a general and objective perspective, requires the appellant to perform a customary and formal behavior practiced in school ceremonies, and this would eventually cause a gap with the behavior deriving from his/her view of history or view of the world due to the aspect mentioned above, and to that extent, the Official Order could somewhat indirectly constrain the appellant's freedom of thought and conscience. On the other hand, it is also true that in ceremonial events that mark particularly important points in the educational process such as a school's graduation ceremony, enrollment ceremony, etc., it is necessary to hold the ceremony in a well-ordered manner as appropriate for an educational event and make it proceed smoothly, while giving due consideration to students, etc. Among the relevant laws and regulations, etc., the School Education Act enumerates, as the objectives of high school education, the development of a proper understanding of the current situation and tradition of the State and cultivation of the spirit of international cooperation (Article 42, item (i), Article 36, item (i), and Article 18, item (ii) of said Act). The Courses of Study for High Schools, established as nationwide guidelines concerning the contents and methods of high school education under the provisions of Article 43 of said Act and Article 57-2 of the Ordinance for Enforcement of the School Education Act, also contain the national flag and national anthem clause in consideration of the significance of ceremonial events of schools. Furthermore, the Act on National Flag and National Anthem provides that the national flag shall be the flag of the Rising Sun ("Hinomaru") and the national anthem shall be "Kimigayo," thus putting the conventional practice into statute. In light of the nature of the status of local public officials, who are supposed to perform their duties as servants of all citizens and in compliance with laws and regulations, etc. as well as official orders of their superiors, and the public aspect of their duties (Article 15, paragraph (2) of the Constitution, and Articles 30 and 32 of the Local Public Service Act), the appellant, while working as a teacher of a public high school, was in the position to comply with laws and regulations, etc. as well as official orders of his/her superiors, and in such position, he/she received the Official Order from the principal of said school where he/she worked, in connection with a graduation ceremony, which is a school event, under the Local Public Service Act and based on the Circular Notice which provided for the guidelines for holding ceremonies in accordance with the Courses of Study for High Schools. In view of these points, the Official Order required the appellant, a teacher of a public high school, to perform the act of standing and singing during the singing of the national anthem as a customary and formal behavior practiced in the graduation ceremony of the school, and it was issued for the purpose of holding the ceremony in a well-ordered manner as appropriate for an educational event and making it proceed smoothly, while giving due consideration to students, etc., in line with the purports of the provisions of the relevant laws and regulations, etc. specifying the objectives of high school education and the significance, ideal, etc. of a graduation ceremony and other ceremonial events, and also in consideration of the nature of the status of local public officials and the public aspect of their duties. Taking into account the circumstances explained above, although the Official Order could somewhat indirectly constrain the appellant's freedom of thought and conscience by way of the restriction in regard to his/her external behavior as described above, by comprehensively weighing the purpose and content of the Official Order as well as the manner in which any constraint is enforced by way of said restriction, the Official Order can be deemed to be necessary and reasonable to such a degree that said constraint caused thereby is permissible. (4) In view of all of the points stated above, it is appropriate to construe that the Official Order is not in violation of Article 19 of the Constitution as infringing the appellant's freedom of thought and conscience. This conclusion is clear from the purports of the judgments rendered by the Grand Bench of this 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; 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 prior instance on the points argued by the appeal counsels can be affirmed as going along with this conclusion. The appeal counsels' arguments cannot be accepted. II. Concerning other reasons for final appeal The reasons for final appeal argued by the appeal counsels, alleging violation of the Constitution, are in effect assertions of errors in fact-finding or unappealable violation of laws and regulations, or ungrounded assertions, and none of these assertions can be regarded as a reason for final appeal under Article 312, paragraph (1) or paragraph (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. There are concurring opinions by Justice TAKEUCHI Yukio, Justice SUDO Masahiko, and Justice CHIBA Katsumi, respectively. The concurring opinion by Justice TAKEUCHI Yukio is as follows. I am in agreement with the approach taken and the conclusion presented by the majority opinion in that, while assuming that the Official Order could somewhat indirectly constrain the appellant's freedom of thought and conscience, the majority opinion affirms the finding that the Official Order is deemed to be necessary and reasonable to a degree that such constraint caused thereby is permissible. However, I would like to give some comments on this point. 1. The approach taken on the assumption of the existence of an indirect constraint Since freedom of thought and conscience falls within the territory of an individual's inner mind, such a view of history or view of the world as the appellant's that "Hinomaru" and "Kimigayo" played a certain role in relation to the prewar militarism, etc. must be absolutely free and legally protected as long as it is kept inside the individual's mind. Generally and objectively, the act of standing and singing in a graduation ceremony is a formal behavior. Even if this act does not deny such an individual's view of history, etc. as described above, nor can it be deemed to directly reveal such an individual's view of history, etc., one cannot reach a conclusion, only from that kind of a third party's perspective, that the Official Order does not constitute a constraint on an individual's freedom of thought and conscience. Since freedom of thought and conscience basically falls within the territory of an individual's inner mind, if the individual him/herself feels a psychological contradiction or mental distress, thinking that the act of standing and singing has an aspect as an expression of one's respect and in this sense, it is an external act which is inconsistent with the behavior deriving from his/her personal view of history, etc., such a situation should inevitably be judged to be the situation where the issue of a constraint on the individual's freedom of thought and conscience has actually arisen. Review should be made as to whether or not such an indirect constraint is permissible, and if it is, the reason therefor (on this point, I agree with the basic viewpoint indicated in the concurring opinion by Justice NASU Kohei, attached to the Piano Accompaniment case (2004 (Gyo-Tsu) No. 328, judgment of the Third Petty Bench of the Supreme Court of February 27, 2007, Minshu Vol. 61, No. 1, at 291)). 2. Regulation on an individual's external behavior Even where an individual's view of history or view of the world has something inconsistent with the norms of society, etc., the conflict between them would raise no issue as long as such view is kept inside the individual's mind. On the other hand, if the individual behaves based on his/her view of history or view of the world, his/her external behavior might possibly be subject to an objective evaluation by society and cause a conflict with the norms of society, etc., and on such occasion, the external behavior could be restricted by the norms of society, etc. In that case, while the subject of restriction is the individual's external behavior, this would result in enforcing an indirect constraint on his/her view of history or view of the world by way of such restriction on the external behavior. The dispute in this litigation is one such case. The subject to be restricted by the Official Order is the appellant's behavior of refusing to stand and sing in the graduation ceremony, not his/her view of history or view of the world. Given such circumstances, if a restriction appears to target an individual's external behavior but presumably its purpose or objective is to force an individual to have a particular view of history, etc. or confess that he/she has a particular view of history, etc., it would immediately raise an issue of a constraint on the individual's freedom of thought and conscience. However, the Official Order cannot be regarded as such a restriction. Where an indirect constraint would be enforced by way of restriction on an individual's external behavior, as mentioned above, it goes without saying that careful consideration should be given so as to minimize the actual impact that the restriction on such external behavior, which falls within the territory of an individual's inner mind, may have on his/her freedom of thought and conscience. Also needless to say, in the process of examining the necessity and reasonableness of such an indirect constraint on an individual's freedom of thought and conscience as disputed in this case, comprehensive judgment should be made by taking the specific circumstances into consideration and assessing them with special care. Here, I would like to touch on this point. With respect to an individual's external behavior deriving from his/her thought or belief, etc., some people consider that the degree of relevance between the behavior itself and the core thought or belief, etc. could vary, and from this viewpoint, argue that the appellant's refusal of the act of standing and singing cannot be construed to be inseparably connected with his/her view of history, etc. and that constitutionality should be reviewed based on this construction. I would not take this approach. Where an individual's external behavior is based on his/her view of history, etc., the degree of relevance between the behavior and the view of history, etc. falls within the territory of the individual's inner mind on which any outside person must not encroach. It is impossible to set any general or objective criterion for measuring the degree of such relevance. If we attempt to measure it, there is inevitably the risk that such attempt would lead to an arbitrary judgment that intrudes into an individual's inner mind. The appellant ventured to refuse to stand and sing presumably because he/she is convinced that such act of standing and singing is in conflict with behavior based on his/her view of history, etc. I have no reason to deny that the appellant's refusal to perform the act of standing and singing, in light of the state of his/her inner mind, is inseparable from and united with his/her view of history, etc. 3. Respect of the national flag and the national anthem While endorsing the determination by the majority opinion that the constraint on the appellant enforced by the Official Order is permissible, I would like to make special mention of the following two points. The first point relates to the respect of the national flag and the national anthem. In general, the national flag is hoisted and the national anthem is played in various types of events and ceremonies, such as the graduation ceremony and the opening ceremony of international athletic games. On such occasions, it seems that ordinary people usually express their respect of the national flag and the national anthem very naturally as a customary and formal behavior. In the international community, expressing one's respect of national flags and national anthems of other countries is international common practice or international etiquette, and any act contrary is considered to be unacceptable in international courtesy. It is fresh in our memory that, the other year, there was a happening in which, when "Kimigayo" was played according to custom before the start of an international football game held in a foreign country, people of that country in the audience did not stand up, and such behavior was subject to strong criticism from Japan and the international community as being contrary to international etiquette. In order to acquire the international common practice of paying one's respect to the national flags and national anthems of other countries, people need to have respect for the national flag and national anthem of their own country, and it is sort of matter of course that consideration should be given to this point in school education. Secondly, it is of importance that the appellant is a teacher and is in the position to be responsible for guiding students during activities including school events. Teachers may have various opportunities to give guidance to students with respect to the respect and courtesy to national flags and national anthems, for which school events such as the graduation ceremony and the enrollment ceremony are important opportunities. If a teacher refuses to perform the act of standing and singing in these school events, such behavior should inevitably be judged to be in conflict with his/her duty as a teacher to give guidance to students with regard to the respect and courtesy to national flags and national anthems and to serve as their model. When assessing the necessity and reasonableness of the constraint on the appellant enforced by the Official Order, it may be necessary to include these points in the factors to be considered. The concurring opinion by Justice SUDO Masahiko is as follows. I am in agreement with the majority opinion for the reasons explained below. I. Basic viewpoint (1) It is absolutely impermissible to force or prohibit a particular thought or give disadvantage by reason of a particular thought, because this constitutes infringement of freedom of thought and conscience guaranteed under Article 19 of the Constitution. In line with this principle, it is also impermissible to force an act which is inseparably connected with the denial of a particular view of history or view of the world (hereinafter referred to as "view of history, etc.") or to force a behavior which could be regarded as an act of externally expressing a particular thought or denial thereof or a confession as to whether or not one has a particular thought (on this point, see 2004 (Gyo-Tsu) No. 328, judgment of the Third Petty Bench of the Supreme Court of February 27, 2007, Minshu Vol. 61, No. 1, at 291). (2) In this meaning, the guarantee for freedom of thought and conscience in one's inner mind is absolute, but when a particular thought is not kept inside one's mind, it would cause a conflict with other interests due to an external behavior, and therefore that freedom is not always absolutely guaranteed. For instance, while it is absolutely free to have a view of history, etc. that polygamy (in which one male marries with two or more females or vice versa) is a proper form of marriage, a person who commits bigamy shall be criminally punished (Article 184 of the Penal Code). In this context, one can possibly see that the State attempts to incorporate a negative evaluation of such person's view of history, etc., and if this is true, undoubtedly the minority who have such view are subject to kind of a direct constraint on their freedom of thought and conscience by way of an external act (such direct constraint may hereinafter be referred to as "so-called direct constraint"). Article 19 of the Constitution apparently approves Article 184 of the Penal Code. (3) As a rule, where the norms of society in general, etc. require an individual to perform an external act, even if the purpose or objective of such external act is something other than making any negative evaluation of the conventional view of history, etc. or belief, or the requirement of said act generally or objectively does not seem to imply any denial of such view of history, etc. or belief, it might be hard for the individual to agree to perform said act, in some cases, because the act is in conflict with the external behavior deriving from his/her view of history, etc. or belief based thereon. In such cases, the requirement of such external act would result in causing a constraint on an individual's freedom of thought and conscience (freedom of inner mind). This constraint, as compared to the aforementioned direct constraint, can be referred to as an indirect constraint. This litigation mainly addresses the issue of an indirect constraint enforced by the Official Order, which falls within the scope of the norms of society in general, etc. Nevertheless, even when a constraint is regarded as being only indirect from a general and objective perspective, the individual who is subject to it, when he/she is required to perform such external act, may feel mental conflict, thinking that the core of his/her view of history, etc. has been denied, or that such external act could be regarded as an act of externally expressing a view of history, etc. that he/she does not agree with (in this respect, whether the constraint is direct or indirect means nothing from the individual's subjective viewpoint). Also where the requirement of such external act is forced on all individuals uniformly, it could be a direct denial of the belief of those who believe that such requirement must not be forced uniformly, and in that situation, it could constitute a so-called direct constraint on such belief. If this belief involves controversial issues, in particular, those individuals cannot avoid experiencing mental conflict. This litigation involves the issue of such constraint on their belief as an incidental issue (this constraint on the belief may hereinafter be referred to as a "constraint on belief"). In the first place, constitutional guarantee of freedom of thought and conscience?from the perspective of respecting the dignity of individuals or from the perspective of considering the co-existence of diverse thoughts and multifarious senses of value to be the underlying foundation for the formation of democratic society?should be discussed centering on the subjective viewpoint of the individual concerned. In light of such nature of the constitutional value, the spirit of guaranteeing this freedom under Article 19 of the Constitution applies even in the case where an indirect constraint or constraint on belief raises an issue. Freedom of thought and conscience never allows restriction by reason that it is related to the minority, and it is the role of the judiciary to protect the minority's freedom from the majority's arbitrary treatment. This point must be stressed also in view of the unique legislative history in which, unlike the constitutional laws of other countries, guarantee of freedom of thought and conscience has been incorporated into the Constitution of Japan, taking into account the path of suffering that this freedom had followed in the pre-war period. (4) However, the guarantee of freedom of thought and conscience discussed in the situation where an external act is involved is not always absolutely inviolable. If it is absolutely impermissible to require an external act based on the norms of society in general, etc. due to the risk of causing an indirect constraint, the society itself would collapse in the end, which is not contemplated by the Constitution. Therefore, it is appropriate to consider that, when an indirect constraint is enforced by way of an external act, if the norms, etc. are necessary and reasonable to a degree that the indirect constraint caused thereby is permissible, the Constitution itself tolerates such constraint as an intrinsic constraint. This also applies to a constraint on belief. The Constitution is presumed to tolerate a constraint on a belief, as in the case of an indirect constraint, in a sense that the belief is inseparably from and united with a view of history, etc, or immediately by reason that the belief is nothing more than a belief in social life (hereinafter the phrase "indirect constraint, etc." shall be used as a combined concept of an indirect constraint and a constraint on belief). It should be noted that the discussion on the degree of necessity and reasonableness for this constraint to be permissible is valid only in the constitutional context, and accordingly, the basis for such necessity and reasonableness should be sought in the Constitution itself as far as possible. At the same time, as necessity and reasonableness can have a broad meaning, it is often the case in fact that it is more suitable to consider such factors as the method and manner of an external act, in particular, not by examining them in the constitutional context, but from the perspective of controlling discretion, that is, by judging whether or not an adverse disposition enforced by reason of an individual's refusal to perform the external act is deemed to be illegal as overstepping the bounds of discretion. In this respect, there would be a sort of categorization. Nevertheless, in cases where an indirect constraint, etc. enforced by reason of the view of history, etc. of the subject individual can be easily foreseen but the careful consideration required for minimizing such constraint is considerably lacking, or where there is only too heavy a sanction from the beginning as the one enforceable against violation, the constraint in question denies the value of the Constitution and therefore cannot be deemed to be necessary and reasonable to a degree that the constraint is permissible. (5) The framework for making a judgment as mentioned above is that, in order to resolve the conflict that freedom of thought and conscience causes, by way of an external act, with the norms of society in general, etc., it is necessary to examine, from a general and objective perspective, the purpose and objective of the norms, etc. and whether or not they involve any constraint on freedom of thought and conscience, and also examine such factors as whether or not the constraint is of direct or indirect nature, as well as the distance between the constraint and the core of freedom of thought and conscience and the degree of the constraint, and on the premise of all of these factors, the necessity and reasonableness of an indirect constraint, etc. must be assessed. This judgment framework may appear to be problematic on its face for its consistency with the principle that guarantee of freedom of thought and conscience should originally be discussed centering on the subjective viewpoint of the individual concerned. However, the judgment to be made using this framework is the function to make an objective evaluation as a legal judgment based on the individual's subjective viewpoint, and the judgment method itself is not at all odd. In order to resolve the conflict between freedom of thought and conscience and the norms, etc. that is caused by way of an external act, what is called strict criterion should be applied in the aforementioned case of a direct constraint, whereas, in the case of an indirect constraint, etc., said judgment framework may be a proper approach to take only on condition that it is not easy to assess the necessity and reasonableness of the constraint. The constraint assumed in that case is an intrinsic constraint that the Constitution itself tolerates, which has the common meaning as the constraint for the purpose of the public welfare as prescribed in Article 13 of the Constitution. In the future, it will be realistic to probe deeply into the substance of such necessity and reasonableness. 2. Whether or not the constraint alleged in this litigation is an indirect constraint The act of standing and singing disputed in this litigation, generally and objectively, has a nature of a customary and formal behavior practiced in school ceremonies such as a graduation ceremony, and at the same time, it has an aspect as an expression of one's respect of the national flag and the national anthem. In this respect, it contradicts and conflicts with the external behavior deriving from the appellant's view of history, etc. that "Hinomaru" and "Kimigayo" played a certain role in relation to the prewar militarism, etc. (the refusal to express one's respect of the national flag and the national anthem), and it would make the appellant feel mental conflict because he/she might think that the core of his/her view of history, etc. has been denied, or that said act could be regarded as an act of externally expressing a view of history, etc. that he/she does not agree with. Thus, said act could somewhat serve as a constraint on the appellant's view of history, etc. Meanwhile, the Official Order, which falls within the scope of the norms of society in general, etc., as discussed later, does not have any particular view of history, etc. as its basis, not to mention that it is not intended to deny any such view, nor is it regarded in that way. Therefore, the constraint mentioned above is an indirect constraint that is caused eventually. Furthermore, since "Hinomaru" and "Kimigayo" involve controversial issues, said constraint could be a constraint on the belief that standing and singing in a school's graduation ceremony basically must not be forced uniformly, and therefore one must not stand and sing. Accordingly, whether or not the Official Order violates the Constitution depends on whether or not it is deemed to be necessary and reasonable to a degree that such indirect constraint caused thereby and constraint on belief are permissible. 3. Necessity and reasonableness (1) The purpose and objective of the Official Order is to encourage high school students to pay attention to their own country in their everyday consciousness by taking the opportunity to perform the act of standing and singing, which has an aspect as an expression of one's respect of the national flag and the national anthem, and in order to achieve this, the Official Order is intended to require teachers, who are to instruct students, to take the opportunity of holding a graduation ceremony, an important ceremonial event of the school, and perform this act and set an example for students. "Hinomaru" is the national flag and "Kimigayo" is the national anthem (the Act on National Flag and National Anthem), and these objects represent Japan (hereinafter referred to as the "State" or "their/our country" depending on the context). From the aforementioned viewpoint that the basis for the necessity and reasonableness to a degree that a constraint is permissible should be sought in the Constitution itself as far as possible, we, the Japanese people, must "preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world" (the Preface of the Constitution). Today, amid the increasing globalization, we should have a proper understanding of our country's tradition and culture, while respecting other countries and cultivating a spirit of flexible international cooperation, thereby contributing to the peace and development of the international community. Article 1 of the Basic Act on Education (prior to the revision by Act No. 120 of 2006; the same shall apply hereinafter) provides that education shall be provided for the purpose of fostering citizens as "members who form a peaceful country and society." Article 18, item (ii) of the School Education Act defines the objectives of elementary school education as "to develop a proper understanding of the current situation and tradition of the children's hometowns and of the State, and further cultivate the spirit of international cooperation," and Article 36, item (i) and Article 42, item (i) of said Act respectively define the objectives of junior high school education and of high school education as "to foster the qualities necessary for members who form the State and society" and "to foster the qualities necessary for promising members who form the State and society," based on the education attained at elementary schools and junior high schools. Actually, high school students will soon be in the position to exercise their sovereign rights and assume social responsibility, and they will not be able to avoid being subject to regulations on their daily lives and whole lives enforced by their State. It may be important for high school students to, while keeping in mind that the most public entity is the State, know for what the State exists, and question what the State will do for them as well as what they can do for the State. In this process, they must look straight, with an open mind, at both the positive and negative aspects of their country's history. Assuming so, it seems to be natural to issue an official order to require teachers, who are supposed to set an example for high school students, to perform acts which give students an opportunity to pay attention to their own country in their everyday consciousness. On the other hand, all people have the obligation to have all boys and girls under their protection receive ordinary education (Article 26, paragraph (2) of the Constitution). High school education in which the appellant has been engaged is one of the stages of ordinary education (Article 50 of the School Education Act). What is important here is that, as the prerequisite for fulfilling this obligation, all people are guaranteed the right to receive education as their fundamental human right (Article 26, paragraph (1) of the Constitution), and they are entitled to demand the provision of ordinary education as well as high school education for specialized education, as provided by law. Thus, all people are deemed to be entitled to receive education which gives them an opportunity to pay attention to their own country in their everyday consciousness, whereas the State is deemed to be obliged to provide such education in response. Also from this standpoint, it is natural for personnel engaged in education to put such education into practice. Furthermore, the appellant, who works as a teacher of a Tokyo Metropolitan high school, is a "servant of all citizens" in his/her capacity as a public official and also as a teacher (Article 15, paragraph (2) of the Constitution, Article 30 of the Local Public Service Act, Article 6, paragraph (2) of the Basic Act on Education). Since education which is designed to give the aforementioned opportunity in the course of fostering new generations as members who form a peaceful country and society and materializing the people's right to receive education is a matter of concern among all people, it is a natural obligation to be fulfilled by a teacher as a servant of all citizens. It follows that, in consideration of the people's right to receive education and the teachers' status as a servant of all citizens, it can be regarded as a constitutional requirement to have teachers, who are engaged in ordinary education, provide education which is designed to give students an opportunity to pay attention to their own country in their everyday consciousness, without adopting any particular view of the State as a basis. Thus, in terms of its purpose and objective, the Official Order is deemed to be fully necessary and reasonable. (2) Since there may be various means of education for giving the aforementioned opportunity to students, it is not the sole option available to use "Hinomaru" and "Kimigayo" and have students perform an act which has an aspect as an expression of their respect of these objects. Nevertheless, these objects are straightforward and easily comprehensive because they symbolize the State of Japan as its national flag and national anthem, and by performing an act which has an aspect as an expression of one's respect of these objects, students can have the opportunity to pay attention to their own country in their everyday consciousness. Although teachers may have various other options while carrying out coursework, etc. or administrative affairs that they are routinely in charge of or engaged in, there seems to be no notable alternative or comparative counterproposal advocated thus far which can be practiced in a ceremonial event, which should be well-modulated, solemn, and unified, and which is held as a school-wide and uniform group event, such as a graduation ceremony. What is more, performing an act which has an aspect as an expression of one's respect of the national flag and national anthem of one's country will lead to performing an act which has an aspect as an expression of one's respect of the national flags and national anthems of other countries, and then respecting the national flags and national anthems of other countries will include respecting other countries. For the reasons stated earlier, it is important to educate children and students to have respect for other countries. Consequently, it is deemed to be necessary and reasonable to use "Hinomaru" and "Kimigayo" in the graduation ceremony in question as a means of education to give students an opportunity to pay attention to the State and have teachers perform an act which has an aspect as an expression to one's respect of the "State" so as to set an example for students. If "Hinomaru" and "Kimigayo" are grounded on a particular view of history, etc. or an anti-constitutional vision of the State, such an official order as the one disputed in this litigation would be impermissible as an attempt of the public authority to train teachers to provide ideological education or have a certain judgment of value on a particular thought. However, inasmuch as the Act on National Flag and National Anthem does not adopt any particular view of history, etc. or anti-constitutional vision of the State as the basis for "Hinomaru," the national flag, or "Kimigayo," the national anthem, it should be construed that the Official Order is not grounded on such view or vision. Supposing that the true intention of such an official order is to suppress a thought of those who have a certain view of history, etc., this would be a ban on a particular thought enforced by the public authority, and for the reasons stated above, it would be impermissible as a direct violation of Article 19 of the Constitution. Yet, the Official Order does not seem to imply such an intention. It is true, indeed, that "Hinomaru" and "Kimigayo" have been considerably controversial among the people, and in reality, there are various ideas about these objects. According to the appellant's view of history, etc. that "Hinomaru" and "Kimigayo" played a certain role in the prewar militarism, etc., what is represented by "Hinomaru" and "Kimigayo" is the "State" that existed in that period. However, on the other hand, it may be possible to consider that what is represented by these objects is the "State" that exists at present which also embodies its negative history, in other words, the idea that Japan is a state that exists within the order of the Constitution of Japan, which adopts the fundamental principles of sovereignty of the people, respect to fundamental human rights, and pacifism, or the idea that Japan must be such a state. Rather, in general, what is represented by "Hinomaru" and "Kimigayo" is a state that is not grounded on any particular vision of the state, and therefore the act of standing and singing practice in a graduation ceremony as the one disputed in this litigation can be regarded as having a nature of a customary and formal behavior. (3) As explained thus far, in terms of its purpose and objective, the basis for the necessity and reasonableness of the Official Order can be sought in the Constitution. In order for the Official Order to be deemed to be necessary and reasonable to a degree that an indirect constraint, etc. caused thereby is permissible, the Official Order must also be necessary and reasonable in terms of a specific method and manner of enforcing it (if the method or manner itself directly denies the constitutional value, it cannot be deemed to be necessary or reasonable). Further examining the point from this perspective, although the standing and singing may not be the sole option available as a method of performing an act which has an aspect as an expression of one's respect of the national flag and the national anthem, this method is straightforward and it seems difficult to find any alternative or comparative method, and thus it is deemed to be necessary and reasonable to choose this method. In addition, a graduation ceremony is required to be held solemnly and effectively because of its nature as a school-wide and uniform group event, which is positioned as an important ceremonial event from an educational perspective. Therefore, it is also deemed to be necessary and reasonable to choose the method of uniformly forcing teachers, who are to serve as an example for students, to perform the act of standing and singing, so as to avoid the situation where teachers might behave in a manner in which they could destroy the atmosphere in the ceremony hall and spoil the smooth progress of the ceremony or partially reduce the intended effect of education for giving students an opportunity to pay attention to their own country in their everyday consciousness, and it is also deemed to be necessary and reasonable to provide for disciplinary action as a sanction enforceable against violation (it is not that there is only too heavy a sanction from the beginning). Looking at the details of the act of standing and singing required by the Official Order, such as the form, the content, the method of carrying it out, the period of time needed, and frequency, there is no other requirement imposed in addition to the standing and singing, for example, reciting a word of loyalty to the State or signing a written oath of one's patriotism. Moreover, this act is finished in a short period of time, and it is not repeated routinely, and as a result, it remains within the limit of a customary and formal behavior. Also in view of these points, it can at least be said that the Official Order does not considerably lack careful consideration for minimizing indirect constraint, etc. caused thereby. Consequently, also in terms of its manner, the Official Order is deemed to be necessary and reasonable (neither the method nor the manner explained above itself seems to directly deny the constitutional value). (4) Meanwhile, it cannot be denied that the appellant's refusal to stand and sing (failure to stand), in a sense, would lead to displaying his/her belief that one should not stand and sing, based on his/her firm conviction that the aforementioned view of history, etc. concerning "Hinomaru" and "Kimigayo" is correct, although this may not have been intended from the beginning. Such attitude of the appellant could be partially evaluated as his/her being faithful and sincere to his/her own conscience. The appellant has absolute freedom to have such a view of history, etc. or belief, whereas there could be other different ways of thinking from the appellant's view of history, etc. The objective of high school life is to become aware that there are various ways of thinking and completely opposite views, including those concerning the perception of history, to form one's own sense of value and personality under the principle of independence, and to acquire the ability to make an independent judgment. Education is supposed to assist students to attain these objectives. However, if the appellant, although not particularly intending to do so, displays his/her firm conviction at the graduation ceremony, which is the most important event of the school and is a somewhat dramatic scene, such behavior would, after all, lead to unilaterally bringing the sense of value that he/she sees all-important into the field of education, rather than introducing conflicting ideas fairly and equally. As a result, the appellant might have a strong influence on or dominance over students, mainly students who are closely tied with him/her based on trust such as those in the class, coursework or club activities in his/her charge, because these students might accept his/her way of thinking as mentioned above as the only correct one. Considering that high school students have little choice of their school or teachers, and unlike university students, they are generally not yet fully capable of criticizing what their teachers teach them, there is a concern that such influence or dominance might impede high school students from forming their own thoughts freely. The appellant is a servant of all citizens in his/her status of a local public official (Article 15, paragraph (2) of the Constitution, Article 30 of the Local Public Service Act), and is also a servant of all citizens in his/her status of a teacher of a school provided by law (Article 6, paragraph (2) of the Basic Act on Education), and accordingly, the appellant, while working as a teacher of a public school, must be fair and neutral. The appellant's behavior mentioned above seems to be contrary to this mission. In addition, the people's right to receive (ordinary) education is the right to demand the provision of basic and balanced education that is commonly desired among the people, rather than education based on a particular sense of value. In this meaning, the appellant's behavior also raises a constitutional question. That the requirement by an official order is uniformly enforced is also necessary and reasonable in view of these points. (5) Apart from the aforementioned view of history, etc., there could also be a belief in social life that the standing and singing must not be practiced just by uniformly forcing it. The appellant argues that a graduation ceremony should be created jointly by students and teachers, and it must not be uniformly forced by someone else, and by arguing so, he/she may possibly mean to say that the Official Order constrains such belief. The appellant is completely free to think that way, and he/she might feel mental conflict when being forced to stand and sing. As stated above, in the case where such a constraint on belief is concerned, as in the case of an indirect constraint, judgment should be made within the framework of assessing whether or not the necessity and reasonableness exist to a degree that such constraint is permissible. In the assessment process, unlike the case of an indirect constraint due to the view of history, etc. mentioned above, the permissibility of a constraint on belief would be, in general, easily acknowledged, unless there are any special circumstances to the contrary. While admitting that it is inappropriate for others to inquire into one's thought and impose a ranking on the weight of its value, this kind of belief in social life is somewhat distant from the core of one's view of history, etc., and such belief in social life has tremendous diversity. Therefore, in the field of public education, in particular, if one is generally allowed to refuse anything only on the grounds that it is contrary to his/her own belief in social life, this would make it impossible to realize public education (particularly, ordinary education) itself, and would also be simply inconsistent with the role of educational public officials as a servant of all citizens. As no special circumstances can be found in connection with the belief in social life argued in this litigation, the necessity and reasonableness exist to a degree that a constraint on such belief is permissible. (6) Just to make sure, I would add that the above is a discussion only in the constitutional context, and in the area of discussion on discretion concerning an adverse disposition imposed for violation of an official order, there may be cases where the action is judged to be beyond the bounds of discretion and illegal due to lack of necessity and reasonableness, which is the basis for the legality of the action, after assessing the following points, including: to what extent the standing and singing are necessary in order to give students an opportunity to pay attention to their own country in their everyday consciousness, and whether or not the graduation ceremony, by its nature, is an appropriate opportunity; and what kind of and how much impact the teacher's failure to stand would have, and whether or not the imposition of an adverse disposition and the level of adverse effect are excessive. In relation to this point, what is most essential is that education must not be physically or formally uniform, but that lively education should be provided by teachers, who are full of enthusiasm and motivation, according to individual students' characteristics. If the practice of forcing an act, etc. that entails an adverse disposition, such as the Official Order, makes those engaged in education fearful and suspicious, causes unnecessary confusion among them, and reduces their vitality or discourages them, the soul of education might be lost. Education must not be forced but provided in a liberal and open-minded manner, and this remains valid even when providing education for the purpose of giving the aforementioned opportunity to students. In this meaning, the practice of forcing an act etc. and the imposition of an adverse disposition must be restrained to the greatest possible extent. What is more, it is foreseen that an indirect constraint, etc. on freedom of thought and conscience would be caused if the act of standing facing "Hinomaru" and singing "Kimigayo" in a ceremonial event such as a graduation ceremony is forced uniformly. With this in mind, even where enforcing such act is within the bounds of discretion and therefore it is not illegal, in light of the importance of freedom of thought and conscience and with the aim of securing the ideal environment for education, the personnel in charge of educational administration should, before forcing said act, exercise their ingenuity and give careful consideration as far as they can under the spirit of tolerance. The concurring opinion by Justice CHIBA Katsumi is as follows. I would like to give my own opinion as a supplement to the court opinion, in relation to the viewpoint for the review of constitutionality of the Official Order, and with a hope to resolve such a conflict as the one in this litigation over the national flag and the national anthem occurring in the field of education. 1. Viewpoint for the judicial review of constitutionality of the Official Order (1) With regard to the meaning of "freedom of thought and conscience," guaranteed under Article 19 of the Constitution, there is a view that it covers the whole range of activities of an individual's inner mind. According to this view, it includes a wide range of factors such as each individual's lifestyle, ideas and taste in social life, distinction of right and wrong on matters of common sense, and feeling of likes and dislikes. It is understandable indeed that these activities of inner mind should be generally respected in social life, and if they are also supposed to be covered by guarantee under Article 19 of the Constitution, requiring an individual to act to the contrary would constitute a constraint on his/her freedom of thought and conscience and therefore would be impermissible. However, this could mean that we are not forced to do what we do not want to do and might lead to the collapse of social order. Therefore, freedom of thought and conscience based on this view should be basically understood as referring to freedom in terms of the activities of inner mind that form the core of an individual's personality, namely, an individual's view of the world, policy, and thought which are as firm as to be equated to religion. In the case of the appellant, this definition applies to his/her view of history or view of the world that "Hinomaru" and "Kimigayo" played a certain role in relation to the prewar militarism, etc. (hereinafter referred to as the "appellant's view of history, etc."). As freedom of thought and conscience defined in this way falls within the territory of an individual's inner mind, it is regarded as an essential human right that others are never allowed to directly constrain. Although it is difficult to imagine an act that directly constrains this freedom due to its nature, I would say that providing an individual with ideological education so as to forcibly change his/her thought could be an example of such act. Thus, an individual's freedom to have his/her own view of history or view of the world, as kind of freedom of thought and conscience, falls within the territory of an individual's inner mind. However, in reality, it does not remain within that territory but comes to the surface in the form of various kinds of external behavior rooted in the view of history, etc. Some of these kinds of behavior are inseparable from and united with one's view of history, etc, and not only the view of history, etc. but also such behavior based on it is entitled to constitutional protection. Accordingly, any such attempt to directly constrain such behavior or order an act that is directly contrary to it (in this litigation, denying the appellant's view of history, etc. or ordering the appellant to participate in the act of expressing a view that is directly contrary to it) may also be construed to be prohibited by Article 19 of the Constitution. If it is so construed, the view of history, etc. and the behavior that is inseparable from and united with it (hereinafter referred to as the "core thought or belief, etc.") are the subject of direct and absolute protection under Article 19 of the Constitution. (2) It is also the reality that various kinds of ideas or behavior exist among those which derive from an individual's core thought or belief, etc. but cannot be deemed to be inseparable from and united with it (such behavior that comes to the surface shall hereinafter be referred to as the "external behavior"), and due to other norms, the individual may be restricted from showing such behavior or be ordered to act to the contrary. The next question is in what situation an act of restricting said behavior (this restriction shall hereinafter be referred to as a "restricting act") is permissible. In this litigation, the appellant's refusal to perform the act of standing and singing, which is regarded as an external behavior, is the idea or behavior of refusing to perform the act of standing and singing because he/she believes, as a teacher, that it is wrong to force "Hinomaru" and "Kimigayo" on Korean and Chinese students with permanent residence in Japan by incorporating them as the national flag and the national anthem in the program of the graduation ceremony. This cannot be regarded as being identical to the appellant's view of history, etc. concerning "Hinomaru" and "Kimigayo" or inseparable from or united with it, but at least it derives from such view (if the appellant's behavior in question is judged to be inseparable from and united with such view of history, etc., it is something inviolable which never allows any restriction whatsoever). On the other hand, since the Official Order constitutes an act restricting an external behavior, its permissibility needs to be examined. (3) In general, there are various kinds of external behavior that derive from an individual's core thought or belief, etc., but the individual him/herself usually thinks and believes that any such external behavior is inseparable from and united with his/her core thought or belief, etc. Such a subjective viewpoint, etc. generally also deserves full respect, and needless to say, others must not trespass the territory of his/her inner mind and evaluate its appropriateness or the like. When defining the scope of guarantee for freedom of thought and conscience under Article 19 of the Constitution, it is necessary to grasp such external behavior objectively and generally in the constitutional context, and examine to what extent it is correlated to the core thought or belief, etc. If the external behavior is objectively and generally inseparable from and united with the core thought or belief, etc., it is no longer regarded as external behavior but rather forms part of the core thought or belief, etc., and as mentioned above, it is the subject of direct and absolute protection under Article 19 of the Constitution. However, this does not apply to all kinds of external behavior, and in this sense, there is a difference in the level of correlation. More conceptually, if the core thought or belief, etc. is assumed as the center circle entitled to absolute protection, the external behavior (excluding such behavior that forms part of the core thought or belief, etc.) is, as it were, within the concentric circle that surrounds said center part, and the level of correlation depends on the distance from the central part. As the external behavior is not included in the center circle (the core thought or belief, etc.), it is not the direct subject of protection under Article 19 of the Constitution, and therefore it could allow some sort of restriction. In addition, when reviewing the permissibility and constitutionality of the act restricting the external behavior, it is not necessary to apply what is called "strict criterion," which is applicable in judicial review of the constitutionality of an act that constrains fundamental human rights categorized as freedom of mind. However, because of the correlation between the external behavior and the core thought or belief, etc., any act restricting the former could somewhat indirectly constraint the latter. Therefore, in order to prove the permissibility, etc. of such restricting act, it must be necessary and reasonable to a degree that such indirect constraint is justified. What is more, as the external behavior comes closer to the central part and becomes more correlated with the core thought or belief, etc., the level of indirect constraint increases, and accordingly, the necessity and reasonableness required of the restricting act also increase. On the other hand, when the external behavior is far from the central part and not so strongly correlated with the core thought or belief, etc., the required degree of necessity and reasonableness is reduced. In the process of judging the degree of necessity and reasonableness, review should be made by taking into account such factors as the content and nature of the external behavior to be restricted and the manner, etc. in which the restricting act is conducted, and then weighing to what degree the restricting act could indirectly constrain the core thought or belief, etc., as well as the purpose and content of the restricting act and the merits gained thereby. It should be noted that, as mentioned above, this weighing process is not intended to trespass the territory of an individual's inner mind and measure the level of or impose a ranking to what the individual subjectively believes as a thought, but it is only based on an objective and general judgment in the constitutional context on the level of correlation between the external behavior and the core thought or belief, etc. Let us take an example from a recent case, 2004 (Gyo-Tsu) No. 328, judgment of the Third Petty Bench of the Supreme Court of February 27, 2007, Minshu Vol. 61, No. 1, at 291. In this precedent case, a piano teacher of a municipal elementary school, who had the same view of history, etc. (the core thought or belief, etc.) as that of the appellant of the present case, believed that he/she should not play an accompaniment on the piano for "Kimigayo" in the graduation ceremony, etc. and refused to play based on this belief. Comparing the external behavior of the piano teacher refusing to play an accompaniment on the piano and the external behavior of the appellant refusing to stand and sing, both of them seem to believe in their inner mind that their behavior is inseparable from and united with their own view of history, etc., which is worthy of full respect. However, in terms of the objective and general correlation in the constitutional context between their external behavior and their view of history, etc. (the core thought or belief, etc.), the appellant's refusal to stand and sing is more strongly correlated with the external behavior because, as explained later, this refusal carries an implication of refusing an act that has an aspect as an expression of one's respect of "Hinomaru" and "Kimigayo." (4) The appellant's external behavior concerning "Hinomaru" (the refusal to stand and sing) derives from his/her view of history, etc. (the core thought or belief, etc.), but for the reasons mentioned in (3) above, the correlation between the two is strong but not strong enough to be deemed to be inseparable and united (even if the appellant's external behavior is, in his/her inner mind, itself a firm belief that one must not stand and sing and he/she would not do so, this belief in inner mind and the refusal to stand and sing are two sides of the same coin, and I think it inappropriate to consider that they cannot be separated in the constitutional review, by regarding the former as a matter within the inviolable territory and the latter as external phenomenon). The appellant also argues that when he/she is forced by others, the public organization, to perform a certain act in a public ceremony against his/her will, such as the act of standing facing "Hinomaru" and singing "Kimigayo" in a ceremonial event, such forced act is against his/her belief and painful to him/her. This is a kind of belief against being forced (see the dissenting opinion by Justice FUJITA attached to the aforementioned Supreme Court judgment). Such a belief against being forced may be the appellant's personal conception of an ideal form of a graduation ceremony, or his/her strong aversion or negative sentiment for being forced by others to behave in a certain manner while working as a teacher. If so, as mentioned above, these matters are concerned with the activities of an individual's inner mind and they may be worthy of respect in light of the appellant's status as a teacher or as an individual, but they are not such matters as falling within the sphere of freedom of thought and conscience, which is the subject of absolute constitutional protection. Yet, there is room for considering that such conception, etc. is correlated with and derives from the appellant’s thought or belief, etc., the core of his/her view of history, etc. In that case, the permissibility of the constraint would be examined from the same perspective as that applied to the appellant's external behavior, the refusal to stand and sing, and would result in the same judgment. (5) The act of standing and singing required by the Official Order has an implication of more or less expressing one's respect of "Hinomaru," the national flag, and "Kimigayo," the national anthem. In this respect, the Official Order does not constitute a direct constraint that could lead to denying the appellant's view of history, etc. itself, but could indirectly constrain the view, and to that extent, it may possibly run counter to his/her belief against being forced as mentioned above. However, as the court opinion states, the act of standing and singing has a nature of a customary and formal behavior practiced in school events, and it is not recognized from outside as an expression of a thought to deny the appellant's view of history, etc. itself, whereas the significance, etc. of the act of standing and singing in the field of education is sufficiently understood. Consequently, the Official Order is deemed to be necessary and reasonable to a degree that it is constitutionally permissible. 2. Hoping to resolve such a conflict as the one in this litigation over the national flag and the national anthem occurring in the field of education (1) Since it is not illegal or invalid to issue an official order to require teachers to stand and sing, it is justifiable and lawful that a teacher who does not comply with the order is subject to disciplinary action, unless the action is too severe or involves any procedural defect. However, from such teacher's standpoint, his/her refusal to stand and sing is the behavior deriving from his/her view of history, etc. Therefore, the judicial decision putting an end to this dispute by acknowledging the constitutionality and validity of the official order will not necessarily lead to the final solution to this issue in society. (2) In general, each country's national flag and national anthem are treated as the symbols of the country and entitled to international courtesy, and they are also used as the subject of courtesy in ceremonies and on other similar occasions. In Japan, by custom in the past and by statute since 1999, "Hinomaru" and "Kimigayo" have been used as the national flag and the national anthem. In school ceremonies such as enrollment ceremonies and graduation ceremonies, it is desirable, as a matter of course, that the national flag and the national anthem are respected by means of courtesy that is suitable for their significance. However, in Japan, it is the reality that opinions vary due to the historical backgrounds and other factors with regard to such treatment of "Hinomaru" and "Kimigayo." The attitude toward the national flag and the national anthem is a sensitive issue relating to each individual's thought or belief. The national flag and the national anthem correspond to their true significance if only they can receive citizens' heart-felt affection and respect. Assuming so, I would add that, in order to find the final solution to this issue, it is important, more than anything, to create an environment where the national flag and the national anthem will receive citizens' spontaneous, not forced, affection and respect.

Justice SUDO Masahiko Justice FURUTA Yuki Justice TAKEUCHI Yukio Justice CHIBA Katsumi