2011.06.14

2010(Gyo-Tsu)314

Minshu Vol. 65, No. 4

Judgment concerning the case in which the court ruled that the official orders issued by the principals of public junior high schools to require teachers of the schools to stand facing the national flag and sing the national anthem during the singing of the national anthem in the school's graduation ceremony or enrollment ceremony are not in violation of Article 19 of the Constitution

Case to seek revocation of the admonition, etc. and of the administrative disposition on appeal

Judgment of the Third Petty Bench, partially dismissed without prejudice, partially dismissed with prejudice on the merits

Tokyo High Court, Judgment of April 21, 2010

Given the factual circumstances (1) to (3) below, as indicated in the judgment, the official orders issued by the principals of public junior high schools to require teachers of the schools to stand facing the national flag and sing the national anthem during the singing of the national anthem in the school's graduation ceremony or enrollment ceremony are not in violation of Article 19 of the Constitution as infringing the teachers' 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 teachers' view of history or view of the world regarding the role that "Hinomaru" and "Kimigayo" played in relation to the prewar militarism or national polity, etc. in Japan, nor can the official orders be deemed to directly 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 orders do not force the teachers to have a particular thought or prohibit them from having an objection thereto, nor do said orders compel the teachers to confess whether they have or do 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 behavior which conflicts with behavior deriving from that view of history or view of the world. On the other hand, the official orders were issued for the purpose of holding the respective ceremonies in a well-ordered manner as appropriate for an educational event and making them 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 junior 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 and a dissenting opinion.)

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), and Article 40 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 Junior High Schools (Public Notice of the Ministry of Education No. 176 of 1998; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 99 of 2008) 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 40 of the School Education Act (prior to the revision by Act No. 96 of 2007) (Application Mutatis Mutandis) The provisions of Article 18-2, Article 21, Article 25, Article 26, Articles 28 to 32, and Article 34 shall apply mutatis mutandis to junior 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 36." 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 Junior High Schools (Public Notice of the Ministry of Education No. 176 of 1998; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 99 of 2008) Chapter 4 Special Activities II. Contents C. School events (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 without prejudice with respect to the part concerning the claim for revocation of the administrative disposition on appeal made by the Tokyo Metropolitan Personnel Commission, and is dismissed with prejudice on the merits with respect to the remaining part. The appellants of final appeal shall bear the cost of the final appeal.

I. Concerning the reason for final appeal argued by IIDA Miyako, et al., alleging that the official order in question violates Article 19 of the Constitution 1. The appellants of final appeal, while working as teachers at junior high schools operated by Hachioji City or by Machida City, Tokyo Metropolis, did not comply with the official orders issued by the principals of the schools to require the appellants to stand facing the national flag and sing the national anthem during the singing of the national anthem in the graduation ceremony or enrollment ceremony (the act required by this official orders shall hereinafter be referred to as the "act of standing and singing"), and failed to stand during the singing of the national anthem. They were investigated, admonished, and directed by the Tokyo Metropolitan Board of Education (hereinafter referred to as "Tokyo BOE") to receive the training for prevention of recurrence of breach of duty, and also given an administrative disposition on appeal by the Tokyo Metropolitan Personnel Commission dismissing their request for an administrative review of the admonition given to them. In this litigation, the appellants allege that said official orders issued by the school principals are in violation of Article 19 of the Constitution and that said investigation, admonition, training for prevention of recurrence of breach of duty, and administrative disposition on appeal are illegal, and accordingly, they seek revocation of said admonition and of said administrative disposition on appeal, as well as damages under Article 1, paragraph (1) of the State Redress Act, against the appellee of final appeal. 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 Junior High Schools (Public Notice of the Ministry of Education No. 176 of 1998; prior to the application of the special provisions under Public Notice of the Ministry of Education, Culture, Sports, Science and Technology No. 99 of 2008; hereinafter referred to as the "Courses of Study for Junior High Schools"), established under the provisions of Article 38 of the School Education Act (prior to the revision by Act No. 96 of 2007; the same shall apply hereinafter) and Article 54-2 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" refers 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 Hachioji City Board of Education, as of September 22, 2003, issued a circular notice to the principals of elementary and junior high schools operated by the city, entitled "Circular Notice on the Hoisting of the National Flag and the Singing of the National Anthem in the Graduation Ceremony, Enrollment Ceremony, etc." (hereinafter referred to as the "Hachioji City 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 all personnel shall stand and sing the national anthem. The Chair of the Machida City Board of Education, as of October 29, 2003, issued a circular notice to the principals of elementary and junior high schools operated by the city, entitled "Circular Notice on the Implementation of the Hoisting of the National Flag and the Singing of the National Anthem in the Enrollment Ceremony and Graduation Ceremony, etc." (hereinafter referred to as the "Machida City Circular Notice"; this circular notice and the Hachioji City Circular Notice shall hereinafter be collectively referred to as the "Circular Notices"). It notified the school principals of the same matters as those mentioned in (i) and (ii) above (with the exception that the implementation guidelines concerned also provided that the teachers and other officials shall stand at the designated seats in the ceremony hall, facing the national flag, and sing the national anthem.) (3) In March 2004, Appellant X1 was in service as a teacher at Machida City Junior High School A. On March 15, X1 received an official order in writing issued by the principal of the school, via the vice-principal subject to the principal's order, to require X1, based on the Machida City Circular Notice, to perform the act of standing and singing during the singing of the national anthem in the graduation ceremony for FY2003. However, X1 did not comply with this official order, and failed to stand during the singing of the national anthem in the school's graduation ceremony held on March 19. During the period from September 2003 to March 2004, Appellant X2 was in service as a teacher at Hachioji City Junior High School B. On September 3, 2003, January 14, 2004, and March 17, 2004, respectively, X2 received an official order issued by the principal of the school to require X2, based on the Hachioji City Circular Notice, to perform the act of standing and singing during the singing of the national anthem in the graduation ceremony for FY2003. However, X2 did not comply with this official order, and failed to stand during the singing of the national anthem in the school's graduation ceremony held on March 19. During the period from March to April 2004, Appellant X3 was in service as a teacher at Hachioji City Junior High School C. On March 17, X3 received an official order issued by the principal of the school to require X3, based on the Hachioji City Circular Notice, to perform the act of standing and singing during the singing of the national anthem in the enrollment ceremony for FY2004 (the official orders issued to Appellants X1 to X3 shall hereinafter collectively be referred to as the "Official Orders"). However, X3 did not comply with this official order, and failed to stand during the singing of the national anthem in the school's enrollment ceremony held on April 7, 2004. (4) The appellants were investigated by the Tokyo Metropolitan BOE regarding their failure to stand as described above, respectively, Appellant X1 for about 20 minutes on March 24, 2004, Appellant X2 for about one hour on March 25, and Appellant X3 for about ten minutes on April 16. (5) The Tokyo BOE gave an admonition to Appellants X1 and X2 on April 6, 2004, and to Appellant X3 on May 25, 2004, respectively, on the grounds that their failure to stand as described above was in violation of an official order issued by their superiors, and therefore they fell under Article 29, paragraph (1), items (i), (ii), and (iii) of the Local Public Service Act. In August 2004, the Tokyo BOE directed the appellants to receive training for prevention of recurrence of breach of duty, on the grounds that they were given said admonition. (6) Appellants X1 and X2 made a request for administrative review on May 31, 2004, and Appellant X3 made such request on July 22, 2004, respectively, to the Tokyo Metropolitan Personnel Commission for revocation of said admonition. On April 24, 2007, they respectively received an administrative disposition on appeal from said Commission dismissing each of their requests (hereinafter referred to as the "Administrative Disposition on Appeal"). 3(1)A. As the reason why they refused to perform the act of standing and singing during the singing of the national anthem in the ceremonies such as a graduation ceremony, the appellants argue that they have a negative view regarding "Hinomaru" and "Kimigayo" as symbols of the prewar militarism and emperor system, based on the historical fact that the sovereignty of the emperor and the abuse of the supreme command caused the war of aggression and colonialism and brought about tremendous ravages at home and abroad, and therefore they cannot perform the act of standing and singing during the singing of the national anthem, which is no less than the expression of one's adoration and respect of "Kimigayo" and "Hinomaru." This view can be regarded as the appellants' personal view of history or view of the world or belief, etc. in social life or education deriving therefrom regarding the role that "Hinomaru" and "Kimigayo" played in relation to the prewar militarism or national polity, etc. in Japan. B. However, it is a well-known fact that, at the time when the Official Orders were 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 junior 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 cannot be deemed to be inseparably connected with the denial of the abovementioned view of history or view of the world. Consequently, the Official Orders, which required the appellants to perform said act of standing and singing during the singing of the national anthem in school ceremonies such as a graduation ceremony, cannot be deemed to immediately deny such view of history or view of the world itself. C. Furthermore, at the time when the Official Orders were issued, the hoisting of the national flag and the singing of the national anthem were actually practiced in graduation ceremonies and other ceremonies of public junior high schools as described in B above. Given this fact, 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, is recognized from outside as a customary and formal behavior practiced in these ceremonies, and it is difficult to evaluate that this act itself 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. Thus, the Official Orders do not force the appellants to have a particular thought or prohibit them from having an objection thereto, nor do said orders compel the appellants to confess whether they have or do not have a particular thought. D. From the perspectives mentioned in B and C above, the Official Orders 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 during the singing of the national anthem in the ceremonies such as a graduation ceremony 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 an act that has an aspect as an expression of one's respect of the national flag and the national anthem, and it is regarded from outside as such (on the other hand, the act of a music teacher to play an accompaniment on the piano for the singing of the national anthem has a nature equivalent to the coursework in the charge of a music teacher. It is less like an expression of one's respect and is recognized from outside as such.) 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 behavior (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. Such requirement could cause a psychological conflict and affect the individual's personal view of history or view of the world, and to that extent, it is difficult to deny that this requirement could somewhat indirectly constrain the individual's freedom of thought and conscience. (3)A. 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 conflicts 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. B. This reasoning can be applied to this case as follows. As mentioned above, the act of standing and singing during the singing of the national anthem required by the Official Orders has an aspect as an expression of one's respect of the objects which the appellants negatively evaluate in relation to their view of history or view of the world, and it is recognized from outside as such. From the standpoint of the appellants who cannot agree to express such respect, said act would be an external behavior which conflicts with behavior deriving from their view of history or view of the world (the refusal to express one's respect), and would cause a psychological conflict to them. In light of this, the Official Orders, from a general and objective perspective, require the appellants to perform a customary and formal behavior practiced in ceremonies, and this would eventually cause a gap with the behavior deriving from their view of history or view of the world due to the aspect mentioned above, and to that extent, the Official Orders could somewhat indirectly constrain the appellants' freedom of thought and conscience as mentioned in (2) above. 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 junior 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 36, item (i), and Article 18, item (ii) of said Act). The Courses of Study for Junior High Schools, established as nationwide guidelines concerning the contents and methods of junior high school education under the provisions of Article 38 of said Act and Article 54-2 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 appellants, while working as teachers of public junior high schools, were in the position to comply with laws and regulations, etc. as well as official orders of their superiors, and in such position, they received the Official Orders from the principals of said schools where they worked, in connection with ceremonies such as a graduation ceremony, which are school events, under the Local Public Service Act and based on the Circular Notices which provided for the guidelines for holding ceremonies in accordance with the Courses of Study for Junior High Schools. In view of these points, the Official Orders required the appellants, teachers of public junior high schools, to perform the act of standing and singing during the singing of the national anthem as a customary and formal behavior practiced in ceremonies of the schools such as a graduation ceremony or enrollment ceremony, and they were issued for the purpose of holding the respective ceremonies in a well-ordered manner as appropriate for an educational event and making them 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 junior 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 Orders could somewhat indirectly constrain the appellants' freedom of thought and conscience as described above, by comprehensively weighing the purpose and content of the Official Orders as well as the manner in which any constraint is enforced thereby, the Official Orders 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 Orders are not in violation of Article 19 of the Constitution as infringing the appellants' 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, 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. Since the appellants have not submitted any statement of reasons for final appeal with respect to the part of the final appeal concerning their claim for revocation of the Administrative Disposition on Appeal, said part of the final appeal is dismissed without prejudice. Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there is a dissenting opinion by Justice TAHARA Mutsuo. There are also concurring opinions by Justice NASU Kohei, Justice OKABE Kiyoko, and Justice OTANI Takehiko, respectively. The concurring opinion by Justice NASU Kohei is as follows. 1. In the precedent case that addressed the issue relating to the issue of this 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 (hereinafter referred to as the "Piano Accompaniment Case"), I took the stance in support of the majority opinion of the court that acknowledged the constitutionality of the school principal's official order requiring a music teacher to play piano accompaniment, and in my concurring opinion attached to the judgment, I pointed out that the official order in question was likely to cause a tense relationship with the music teacher's freedom of thought and conscience, thereby raising the issue of constraint on freedom of thought and conscience. While the point at issue in this case is teachers' standing and singing, which is different in some aspects from playing piano accompaniment as discussed in detail later, I maintain my basic idea that I presented in said concurring opinion of the precedent case, as indicated below. (1) In the Piano Accompaniment Case, in which a music teacher challenged the official order issued by the principal of a municipal elementary school requiring the teacher to play accompaniment on the piano for "Kimigayo" during the singing of the national anthem in the school's enrollment ceremony, the majority opinion of the court stated that said official order cannot be deemed to directly deny the teacher's view of history or view of the world regarding the role that "Kimigayo" played in the past in Japan; nor was it intended to force the teacher to have a particular thought or prohibit him/her from having a particular thought, or compel the teacher to confess that he/she had or did not have a particular thought; nor can this order be deemed to force the teacher to teach a one-sided thought or idea to children (3(1) and (2) of the Reasons). This can be understood as originating in the view that an official order requiring a music teacher to play an accompaniment on the piano for "Kimigayo," in the first place, does not constraint the teacher's freedom of thought and conscience that is guaranteed under Article 19 of the Constitution. The judgment on this precedent case, while taking into consideration the possibility that such an official order might constrain the freedom of thought and conscience, further examined the purports of the relevant provisions of laws and regulations, namely, Article 15, paragraph (2) of the Constitution (every official shall be a servant of all citizens), Article 30 of the Local Public Service Act (the same), Article 32 of the of the Local Public Service Act (officials shall comply with laws and regulations, etc. and faithfully observe official orders of their superiors), Article 18, item (ii) of the School Education Act (as then in effect; the objectives of elementary school education), and the Courses of Study for Elementary Schools, and ruled that the official order in question was in line with the purports of these provisions and cannot be deemed to be unreasonable in terms of its purpose and content (3(3) of the Reasons). My concurring opinion attached to said judgment was also premised on such two-stage approach adopted by the majority opinion, and was intended to supplement the statement of the majority opinion in 3(3) of the Reasons, explaining that the official order in question requiring the teacher to play piano accompaniment was not in violation of Article 19 of the Constitution. (2) In my opinion, the official orders disputed in the present case requiring the appellants to perform the act of standing and singing in the enrollment ceremony and the graduation ceremony, etc. are, in conclusion, also not in violation of Article 19 of the Constitution. Considering that the Piano Accompaniment Case related to an official order requiring a music teacher to play piano accompaniment, whereas the present case addresses the constitutionality of official orders requiring teachers in general to perform the act of standing and singing, the point at issue stated in 3(3) of the Reasons of the judgment on the Piano Accompaniment Case is even more important in the present case. In the sections below, I will further discuss this point. 2(1) The act of playing accompaniment on the piano for "Kimigayo" in school ceremonies such as an enrollment ceremony and graduation ceremony, etc., and the act of standing and singing in such ceremonies, differ from each other as described below, beyond the difference only in appearance between them. A. The playing of piano accompaniment largely depends on a music teacher's special musical ability, and it is usually not expected to be performed by teachers in other subjects. Accordingly, an official order requiring this act for the purpose of holding a school ceremony is to be addressed to a particular teacher of the school. On the other hand, since the standing and singing of "Kimigayo" can be easily performed by anybody who has an ordinary ability to sing, the performance of this act is uniformly required among all teachers in attendance, irrespective of whether or not it is required by way of an official order. B. The playing of accompaniment on the piano for "Kimigayo," when it is performed in the course of one's duty, does not itself have a strong aspect of expressing a particular respect of the national flag or national anthem, but it is only an accessory work that is necessary for assisting other participants to properly sing "Kimigayo." On the other hand, the standing and singing, in connection with the manner in which one stands up and the linguistic content of the lyric of "Kimigayo," has itself a meaning as expressing one's respect of these objects, and it also serves as the conduct of a public school's teachers setting a good example for students who participate in the ceremony. C. The playing of piano accompaniment involves a choice only between the two options, to perform or not to perform, whereas the standing and singing would lead to various choices, such as, to stand facing the national flag straightly and sing the national anthem, to stand and sing the national anthem but not to face the national flag straightly, to stand and face the national flag straightly but not to sing, or to stay in one's seat, without standing or singing. (2) In consideration of the difference between the two as described above, the playing of piano accompaniment is more strongly relevant with the duty of the subject person than the standing and singing, but it does not at all intrude or intrudes only slightly into the core or periphery of the subject person's thought and conscience. It is also simple as an act in appearance that is aimed by an official order, and can be evaluated to be all the more suitable as the subject of an official order. On the other hand, the relevance between the standing and singing and the duty of the subject person is not so simple and clear as in the case of the playing of piano accompaniment, and it is difficult to deny that this act could mean an expression of one's respect of the national flag and the national anthem. Accordingly, the relationship between an official order requiring this act and the subject person's freedom of thought and conscience involves all the more complicated and difficult legal questions. At the same time, these acts have something important in common, such as that they are both required as the duties to be performed by public school teachers in an enrollment ceremony and other school ceremonies, and that when they are performed as such duties, they may have an aspect of expressing one's respect to a certain degree?although such expression may be obvious or vague or direct or indirect?, or at least it may be construed as such. 3(1) The objectives for which teachers and other teaching staff (hereinafter simply referred to as "teachers") stand and sing during the singing of the national anthem in the enrollment ceremony and graduation ceremony, etc. of public junior high schools may include the following two. A. By standing and singing, teachers express their respect or courteous attitude with regard to the national flag and national anthem as part of the participants of the ceremony. B. By standing and singing, teachers set a good example for students and guide them in expressing their respect or courteous attitude with regard to the national flag and national anthem. Which of these objectives should be given more weight depends on the views of the respective teachers who perform the standing and singing (or there may be other objectives of this act). However, in any case, when examining an issue relating to the standing and singing, it is necessary to assume that the abovementioned two objectives are involved in this act. Also when a school principal requires teachers to perform the standing and singing during the singing of the national anthem, he/she takes it for granted what is stated above, and in this respect, there may be no particular difference between the case where the principal issues an official order to require teachers to stand and sing and the case where the principal requests teachers' spontaneous act of standing and singing. (2) When making an evaluation of the behavior of teachers who do not comply with the principal's official order or request, and do not stand and sing in an enrollment ceremony or graduation ceremony, etc., the points mentioned in (1) above should also be taken into account. These teachers can be understood as choosing not to stand and sing because they have a negative view regarding either or both of the abovementioned objectives of the standing and singing, and they think that complying with the principal's official order or request would conflict with behavior deriving from their thought and conscience. The objective of expressing one's respect directly relates to an individual's freedom of thought and conscience, which is discussed in Reason I, 3(2) and (3) of the majority opinion. Although this objective could somewhat indirectly constrain the appellants' freedom of thought and conscience, by comprehensively weighing the purpose and content of the official order as well as the manner in which such constraint is enforced thereby, etc., said objective can be deemed to be necessary and reasonable. (3) On the other hand, the objective of setting a good example for students and guiding them during the singing of the national anthem in the enrollment ceremony or graduation ceremony, etc. is an issue of thought and conscience that is concerned with what a teacher or educator should be, or relating to the teaching profession, rather than an issue of an individual's thought and conscience. A typical example may be a thought or educational opinion of a teacher who is not especially reluctant to stand and sing him/herself during the singing of the national anthem during the singing of the national anthem, but as a person engaged in the teaching profession, cannot agree to make all students, who currently have or are expected to have various views, stand and sing uniformly. However, such professional thought and conscience, which pertains to the ideal of education or educational methodology, is closely related to or incidental to the occupation of a teacher, and in this respect, it is far more prone to any constraint from outside due to the public interest, etc., as compared to an individual's freedom of thought and conscience. Thus, from the perspective of setting a good example for students and guiding them as well, the necessity and reasonableness of the constraint in dispute can be affirmed. (4) I cannot agree with the dissenting opinion that distinguishes between the act of standing and the act of singing during the singing of the national anthem, and considers that since the act of singing, for people who have a negative view of history or view of the world toward the national anthem, would be in conflict with their view of history or view of the world, teachers other than those specialized in music are not expected as their duty to sing in addition to stand. In my opinion, once a school makes an organizational decision that the national anthem should be sung in the school's enrollment ceremony or graduation ceremony, etc., it may be fully possible, as a measure to implement this effectively, for teachers to choose to stand and sing, thereby setting a good example for students and ensuring thorough guidance for them. This viewpoint must not be forgotten in the process of examining whether or not the official orders issued by the respective school principals in dispute in this case are in violation of Article 19 of the Constitution. As a matter of course, in the context of school education, studying of subjects in classrooms is the core educational activity, but at the same time, ceremonial events outside classrooms, such as enrollment ceremonies and graduation ceremonies, etc, are also educational activities of great importance. It goes without saying that the latter category of educational activities, by their nature, must be implemented in a uniform manner on a school-wide basis under the initiative of the school principal, and teachers have an official duty to cooperate in the implementation. In the case of teaching subjects in classrooms, the teachers in charge of the respective subjects have a certain extent of discretion in deciding the content and method of teaching, but they are vested with such discretion only in connection with their subjects. There is no need to dwell on the fact that school-wide events such as enrollment ceremonies and graduation ceremonies, etc. need to be implemented in a systematic and unified manner under the initiative of the school principal, as mentioned above, and they would not be affected by the discretion, etc. of each teacher. 4. As a result of the examination on the issue of singing of the national anthem shown above, it is naturally probable for the appellants to receive an official order requiring their standing and singing, as discussed in detail in the majority opinion of the court. Even where such an official order could indirectly constrain the appellants' freedom of thought and conscience, said order is in line with the public interest, that is, for effectively implementing an enrollment ceremony or a graduation ceremony, etc., which are important educational activities in the context of school education, and enabling students, the recipients of education, to fully enjoy the outcome thereof. Even when weighing its purposes and effect, the reasonableness of the constraint caused by the official order cannot be denied, and therefore the appellants should tolerate such constraint. The concurring opinion by Justice OKABE Kiyoko is as follows. As stated in the majority opinion of the court, it is undeniable that an official order requiring the performance of the act of standing and singing could somewhat indirectly constraint an individual's freedom of thought and conscience. Considering that freedom of thought and conscience is constitutionally guaranteed, although it cannot be said that such an order is in violation of the Constitution, deliberate comparison must at least be made when imposing an adverse disposition against noncompliance with the order. If an individual's failure to stand, which constitutes noncompliance with the order, is a sincere act deriving from his/her thought and conscience, and standing as ordered could somewhat indirectly constrain his/her freedom of thought and conscience, there is a possibility that imposing an adverse disposition would constitute overstepping or abusing the discretion, as a result of taking into account various circumstances concerned, including (i) the degree of necessity of the order, (ii) the degree and manner of noncompliance, (iii) the degree of harm or other influence of noncompliance, (iv) the availability of any alternative and the propriety thereof, and (v) the degree of the adverse disposition imposed and the influence thereof. I make mention of this point just for reference, because no argument in line with this has been made in this case. The concurring opinion by Justice OTANI Takehiko is as follows. 1. In this litigation, teachers of municipal junior high schools in Tokyo, who were given an admonition on the grounds that their failure to stand during the singing of the national anthem in the graduation ceremony or enrollment ceremony constituted violation of the official orders issued to them, seek revocation of the admonition, alleging that the official orders were in violation of Article 19 of the Constitution. The majority of the Justices of this petty bench, including me, affirm the admonition given by the Tokyo BOE, ruling that the official orders in question are not in violation of the Constitution. On the precedent case in which a music teacher of a municipal elementary school in Tokyo sought revocation of the admonition given to him/her on the grounds of his/her noncompliance with the official order requiring the playing of piano accompaniment during the singing of the national anthem in the enrollment ceremony, this petty bench rendered a judgment as of February 27, 2007, ruling that the official order in question was not in violation of Article 19 of the Constitution and affirming the admonition given by the Tokyo BOE (2004 (Gyo-Tsu) No. 328, case to seek revocation of the admonition; this precedent judgment shall hereinafter be referred to as the "Piano Accompaniment Case judgment"). Although I did not take part in rendering the Piano Accompaniment Case judgment, in the course of rendering a judgment on the present case, which is similar in factual circumstances but is different in some aspects, I have studied and gained my own understanding of the Piano Accompaniment Case judgment previously rendered by this petty bench, so I would like to give supplementary comments, focusing on the difference between these cases in terms of the facts and the grounds leading to the conclusion. This litigation is to seek revocation of the admonition in the case where the subject of admonition was the teachers' failure to stand against the official orders issued by the school principals requiring them to perform the act of standing and singing during the singing of the national anthem. In the sections below, the official orders in question refer to these official orders requiring the act of standing and singing, but the discussion in relation to the subject of admonition will be centered on the requirement of standing during the singing. 2(1) The framework for the judicial review of constitutionality of the official order adopted in the Piano Accompaniment Case judgment can be summarized as follows. The teacher's negative view on "Kimigayo" can be regarded as his/her personal view of history or view of the world concerning the role that "Kimigayo" played in Japan in the past as well as his/her belief in social life deriving from such view. (i) However, although for the teacher, it might be one choice based on his/her view of history or view of the world to refuse to play piano accompaniment, such refusal cannot generally be regarded as being inseparably connected with that view of history or view of the world, and the official order requiring the teacher to play piano accompaniment cannot be construed to directly deny said view of history or view of the world. (ii) On the other hand, looking at it objectively, the act of playing piano accompaniment is itself the duty that a music teacher is generally supposed and expected to perform, and it is difficult to regard it as an act by which a teacher who plays piano accompaniment is recognized as externally expressing that he/she has a particular thought. The official order requiring the playing of piano accompaniment is not intended to force the music teacher to have a particular thought or prohibit him/her from having a particular thought, or compel the teacher to confess that he/she has or does not have a particular thought. (iii) Public school teachers fall within the category of local public officers who have the statutory duty to serve for all citizens, and the courses of study established under the School Education Act provide that the national anthem shall be sung in an enrollment ceremony, etc. The performance of the singing of the national anthem in an enrollment ceremony, etc., with accompaniment on the piano, conforms with the purports of these provisions. The official order requiring the playing of piano accompaniment cannot be construed to be unreasonable in terms of its purpose and content. Taking into consideration all of the points mentioned above, it is appropriate to construe that the official order in question cannot be deemed to be contrary to Article 19 of the Constitution as infringing the teacher's freedom of thought and conscience. (2) Justice FUJITA Tokiyasu dissented from the majority opinion as summarized above and criticized it as follows: "[the majority opinion can be construed] to locate the appellant's "view of history or view of the world" containing the negative view of "Kimigayo," in the center of the appellant's "thought and conscience" guaranteed under Article 19 of the Constitution, and regard the appellant's refusal to play accompaniment on the piano for "Kimigayo" in the enrollment ceremony as an act derived from or incidental to that view. Furthermore, the majority opinion seems to be based on the idea that between the appellant's "thought and conscience" and the act of playing the accompaniment, no close relationship can be found such that forcing him/her to play would immediately mean to deny his/her view (like the relationship between being forced to stamp on the image of Christ and the faith in Christianity)." Setting aside the question as to whether or not the refusal to play piano accompaniment is an act derived from or incidental to a music teacher's view of history or view of the world, I also understand that the majority opinion locates the teacher's view of history or view of the world in the core or center of the teacher's inner mind, which is covered by absolute protection for freedom of thought and conscience under Article 19 of the Constitution, and regards the refusal to play piano accompaniment as the behavior deriving from such core view of history or view of the world (or further deriving from the negative view of "Kimigayo" deriving from the view of history or view of the world). In regard to the relationship between an individual's view of history or view of the world, which forms the core of his/her inner mind, and his/her external behavior deriving from such view, the majority opinion sets up the following framework for determining whether or not requiring an individual to perform certain external behavior (or restricting him/her from performing such behavior) could influence the individual's view of history or view of the world, which forms the core of his/her inner mind, and result in denying or intruding such core. Firstly, whether or not requiring an individual to perform a certain external behavior could directly influence the core of his/her inner mind and result in denying such core should be judged by examining whether or not the required external behavior and the core of the inner mind are inseparably connected with each other, by means of, for example, providing education based on a particular ideology. Secondly, where an individual is required to perform external behavior which conflicts with behavior deriving from the core of his/her inner mind, even though such requirement does not directly influence the core of his/her inner mind, this requirement could influence the core of the individual's inner mind and result in denying such core through the process wherein his/her behavior of accepting or refusing the requirement is subject to evaluation from outside. In this respect, the point to be reviewed is whether or not the required external behavior can be recognized as an expression showing that the individual has a particular thought. If such behavior is recognized as an expression of a particular thought, it would result in directly denying freedom not to "confess (reveal)" one's thought and conscience, which is constitutionally guaranteed together with freedom to "have" one's thought and conscience. Individuals vary in inner thought and conscience, and they are also in various situations. The purposes and circumstances for which certain external behavior is required vary as well. Even when the required external behavior, generally and objectively, is not inseparably connected with the inner thought, nor is it recognized as an expression of a particular thought, and therefore said behavior is not supposed to directly deny the core of the inner mind, some individuals who are required to perform the external behavior (which conflicts with behavior deriving from their inner thought) might find this behavior to be incompatible with various opinions, views, evaluations, and feelings in their mind deriving from their views of history or views of the world, which form the core of their inner mind?particularly in the context of how the behavior would be recognized from outside?, and this could cause psychological conflict in them and finally influence the core of their inner mind (see the concurring opinion by Justice NASU Kohei, attached to the Piano Accompaniment Case judgment). Although such territory of the inner mind could not be covered by absolute protection under Article 19 of the Constitution, if it is deemed to be scarcely reasonable to require certain external behavior in light of the purpose and content of the behavior, any constraint on said territory may become impermissible in line with the purport of the protection under said Article. Thirdly, the Piano Accompaniment Case judgment examined the purpose and content of the required external behavior from such perspective and found no unreasonable aspect in them, and presumably by comprehensively taking into consideration the three stages of review indicated above, the judgment ruled that the official order requiring the music teacher to play piano accompaniment was not in violation of Article 19 of the Constitution as infringing the teacher's freedom of thought and conscience. 3. I believe that the framework for review adopted by the Piano Accompaniment Case judgment is basically reasonable. (1) Now, within this framework, while comparing the music teacher's refusal to play piano accompaniment during the singing of the national anthem, with the teachers' failure to stand on the same occasion, disputed in this case, I will look at the relationship between the core of the inner mind and the external behavior deriving therefrom, and the relationship between the required external behavior and its influence on the core of the inner mind. To begin with, the music teacher and the teachers involved in this case seem to share the common view of history or view of the world, which forms the core of their inner mind. Then, as for the first review point indicated in the Piano Accompaniment Case judgment, that is, whether or not the required external behavior is inseparably connected with the core of the inner mind, the act of standing during the singing of the national anthem, disputed in this case, generally and objectively, has a nature of a customary and formal behavior practiced in ceremonies, and in light of such nature, said act cannot be deemed to be inseparably connected with the core of the inner mind. In this respect, said act cannot be deemed to directly deny an individual's view of history or view of the world. This is stated in the majority opinion. As for the second review point, that is, the relationship between the required external behavior and its influence through the evaluation of the required behavior from outside, or an expression of a particular thought, since the act of standing during the singing of the national anthem, generally and objectively, is also recognized from outside as a customary and formal behavior practiced in ceremonies, the act of standing required in this case can hardly be recognized as an expression of a particular thought. In this respect, said act does not directly deny an individual's freedom to "have" a particular view of history or view of the world, or compel an individual to "confess (reveal)" his/her view. (2) As a result of reviewing the first and second points, the relationship between the official order requiring the playing of piano accompaniment and the refusal to do so, and the relationship between the official order in this case requiring the act of standing and singing and the failure to stand, are found to be almost identical to each other. However, in relation to the view of history or view of the world held by the respective teachers, these two relationships are different in the following points. One point is that the act of standing during the singing of the national anthem has an aspect as an expression of respect of the State by those who sing the national anthem. Although it may be a sort of etiquette to stand on such occasion as singing in chorus, this act, when seen objectively, cannot avoid being understood as having an aspect relating to respect of the object concerned, though not to the extent of saluting or bowing. The act of standing may be incompatible with the negative view on "Kimigayo" held by the teachers involved in this case, deriving from their view of history or view of the world. On the other hand, playing piano accompaniment is an act that is always needed to help people sing not only the national anthem but any song, and when seen objectively, it does not have a clear aspect relating to respect of the object concerned. Another point is that, for music teachers of elementary schools, playing piano accompaniment is exactly their official duty, and they should necessarily perform this act in school events even when they are not ordered to do so, whereas, for teachers in general of junior high schools, participating in school events and following the event programs may be largely included in the range of teachers' duties, but standing during the singing of the national anthem cannot necessarily be deemed to be included in the range of their duties, and in some aspects, they may be required by an official order to perform behavior that is incompatible with the negative view on "Kimigayo" held by the teachers involved in this case. If so, when teachers refuse to comply with the official order requiring the act of standing during the singing of the national anthem, and do not stand but stay in their seats, such behavior could be recognized as externally expressing that they have a negative view on "Kimigayo." In addition, those who have such a negative view on "Kimigayo" might not be able to perform in a businesslike manner the act of standing during the singing of the national anthem, while considering this act as their own official duty and separating it from their own belief. In view of these points, unlike the case where a music teacher is required to play piano accompaniment, when teachers in general are required to stand during the singing of the national anthem, it cannot be denied that such requirement?whether they perform this act as required or refuse to perform it?could cause psychological conflict in them as this act embodies an aspect relating to respect of the object, and finally influence their view of history or view of the world, which forms the core of their inner mind, and indirectly constrain their freedom of thought and conscience. Reason I-3(2) of the majority opinion of this case states this reasoning, which I also agree with. 4. Thus, the official order requiring the teachers to stand during the singing of the national anthem, disputed in this case, could somewhat indirectly constrain their freedom of thought and conscience, but review should be made as to whether or not such constraint may be permissible in relation to Article 19 of the Constitution in some cases, and as I see it, the criteria for such review are explained in detail in Reason I-3(3) of the majority opinion. All in all, whether or not such indirect constraint is permissible should be determined by comprehensively weighing the purpose and content of the official order as well as the manner in which any constraint is enforced, 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. This may have something in common with the third review point indicated in the Piano Accompaniment Case judgment. However, this precedent judgment did not discuss the issue of an indirect constraint on freedom of thought and conscience, but examined the unreasonableness of the official order from the perspective of whether or not any constraint enforced by requiring the behavior in question would be rejected as impermissible in line with the purport of Article 19 of the Constitution in the situation where the required behavior is scarcely reasonable. On the other hand, in the present case, in which the failure to stand is in dispute, the subject of judicial review is the official order which could somewhat indirectly constrain the teachers' freedom of thought and conscience, and the issue to be discussed is the permissibility of such official order in the situation where the official order is constitutionally permissible. Accordingly, it is insufficient that the official order is not unreasonable in terms of its purpose and content, but the official order must be found to be necessary and reasonable to such a degree that said constraint is permissible. The majority opinion on this case points out the fact that "Kimigayo" was designated by law as the national anthem in 1999, as one of the reasons for finding the necessity and reasonableness of the teachers' official duty. While the Piano Accompaniment Case judgment addressed the act that had been conducted before "Kimigayo" was designated by law as the national anthem, the failure to stand disputed in this case took place after such designation was made. Although the fact that "Kimigayo" was designated by law as the national anthem does not mean to support the mandatory requirement of the singing of the national anthem, nor does it itself serve as the grounds for the necessity of the official order, it may be allowable to regard this fact as one of the circumstances to be taken into account when examining the necessity and reasonableness of the purpose and content of the official order. 5. This litigation is to seek revocation of the disciplinary action taken against the public school teachers on the grounds that their failure to stand constituted violation of the official orders requiring them to stand during the singing of the national anthem in the graduation ceremony or enrollment ceremony. In view of the facts of the case, the majority opinion made a ruling on constitutionality in relation to Article 19 of the Constitution in response to the statements of the reasons for final appeal, and in this concurring opinion, I gave supplementary comments, focusing on the comparison with the Piano Accompaniment Case judgment that was previously rendered by this petty bench. The judgment of this case indicates constitutional issues pertaining to the significance of the singing of the national anthem in school ceremonies, the duty of public school teachers in their status as public officers, as well as the relationship between these matters and the teachers' views on "Kimigayo" in their inner mind and the beliefs that they hold as teachers. Beside the efforts toward judicial settlement of these issues, it must be more desirable for the singing of the national anthem in ceremonies to be performed by the people naturally and spontaneously, based on their love for the national anthem and understanding of the significance of singing it. This is still more so in the field of school education for students who will be responsible for the future of the country. If teachers are forced to sing the national anthem by means of an overly adverse disposition, while some of them show an excessively demonstrative refusal to perform this act, such circumstances would intensify a conflict among people engaged in education, causing confusion in classrooms and having a negative impact on students. It is necessary to develop an understanding of how the singing of the national anthem should be carried out in school-wide events, and at the same time, deliberate consideration should be given to this act as an issue relating to individuals’ inner thought and belief. I hope that those engaged in education will develop mutual understanding and deliberately deal with this issue. The dissenting opinion by Justice TAHARA Mutsuo is as follows. I have no objection to the majority opinion in that it dismissed without prejudice the part of the final appeal concerning the claim for revocation of the administrative disposition on appeal made by the Tokyo Metropolitan Personnel Committee. However, for the reasons stated below, I cannot agree with the majority opinion in that it dismissed with prejudice on the merits the remaining part of the final appeal, ruling that although the Official Orders could somewhat indirectly constrain the appellants' freedom of thought and conscience, by comprehensively weighing the purpose and content of the Official Orders as well as the manner in which any constraint is enforced thereby, the Official Orders can be deemed to be necessary and reasonable to such a degree that said constraint caused thereby is permissible, and in conclusion, it is appropriate to construe that the Official Orders are not in violation of Article 19 of the Constitution as infringing the appellants' freedom of thought and conscience. In my opinion, on the contrary, it is appropriate to remand the case to the court of prior instance for further examination. I. Relationship between the Official Orders and Article 19 of the Constitution 1. Content of the Official Orders The Official Orders, issued to the appellants by the respective school principals, were intended to require that they "stand and sing" during the singing of the national anthem in the enrollment ceremony or graduation ceremony (while the majority opinion understands the content of the Official Orders as requiring the appellants to perform the "act of standing and singing," thus putting the act of standing and the act of singing together as a single act, I consider, for the reasons stated in the sections below, that review should be made for the "act of standing" and the "act of singing" separately, and it is inappropriate to understand and discuss the content of the Official Orders as the single act of "standing and singing," as the majority opinion does). It should also be noted that, as pointed out in the majority opinion, the Machida City Circular Notice also provided that "the teachers and other officials shall stand at the designated seats in the ceremony hall, facing the national flag, and sing the national anthem," whereas the official order issued to Appellant X1 did not contain the part "facing the national flag." In the "act of standing" and the "act of singing," which constitute the act required by the Official Orders, "stand and sing," are different acts when viewed as social facts, but according to the facts found by the judgment in prior instance, the Official Orders seemingly require the performance of these acts as a single act. However, as mentioned above, the act of standing and the act of singing are different acts, and accordingly, one can understand that two official orders, one requiring "standing" and another requiring "singing" both upon the occasion of the singing of the national anthem, were issued concurrently (hereinafter the former order shall be referred to as the "order to stand" and the latter order shall be referred to as the "order to sing"). The Official Orders can be violated by such acts as (i) neither standing nor singing, (ii) standing but not singing (including the act of opening one' s mouth and pretending to sing), and (iii) not standing but singing. When the disciplinary actions were taken against the appellants (hereinafter referred to as the "Disciplinary Actions"), only their failure to stand during the singing of the national anthem against the Official Orders was taken up as the grounds for action, and as far as the case records show, in the procedure for deciding the Disciplinary Actions, no findings of fact were made as to whether or not the appellants sang the national anthem. In the sections below, I will divide each of the Official Orders into the part functioning as the "order to stand" and the part functioning as the "order to sing" and examine the respective relationships between these parts and Article 19 of the Constitution, and also review the relationships between these parts within each of the Official Orders. 2. Order to stand I agree with the majority opinion stating that the act of standing during the singing of the national anthem, which is to be performed by teachers and other officials, etc. in a graduation ceremony and other ceremonies which are categorized as ceremonial events of public junior high schools, generally and objectively, has a nature of a customary and formal behavior practiced in these ceremonies, and cannot be deemed to be inseparably connected with the denial of the view of history or view of the world argued by the appellants, and consequently, issuing an official order requiring them to perform the act of standing during the singing of the national anthem in school ceremonies such as a graduation ceremony does not directly lead to denying the appellants' view of history or view of the world. Focusing on the "order to stand" alone, as stated in the majority opinion, although the Official Orders could somewhat indirectly constrain the appellants' freedom of thought and conscience, by comprehensively weighing the purpose and content of the Official Orders as well as the manner in which any constraint is enforced thereby, I would admit that the Official Orders are necessary and reasonable to such a degree that said constraint caused thereby is permissible, though I still have some doubts about this. However, looking at the relationship between the order to stand and the order to sing within each of the Official Orders examined later, I believe that it is inappropriate to take up only the order to stand, which forms part of the Official Order, and discuss its relationship with Article 19 of the Constitution, but discussion should also take into consideration its relationship with the order to sing, which forms the other part of the Official Order. 3. Order to sing (1) Order to sing, and its infringement against the core of the inner mind Today, the national anthem is widely sung in various types of public ceremonies, and even when the participants in such ceremonies sing the national anthem, their singing does not go so far as to mean a confession of their thought or belief, as in the case of the standing discussed in the section immediately above. In addition, as pointed out by the majority opinion, at the time when the Official Orders were issued, the national anthem was widely sung in graduation ceremonies and other ceremonies of public junior high schools. However, since "singing" requires people to voluntarily produce sounds, for people whose view of history or view of the world is negative about the national anthem, singing means nothing but performing an act that is in head-on conflict with such view of history or view of the world, and I should say that such people cannot recognize this act as a mere customary act required upon participating in various public ceremonies. Furthermore, from the standpoint of the appellants who are in charge of subjects other than music, joining in the singing of the national anthem in the school ceremonies such as a graduation ceremony cannot be deemed to be an act that they are necessarily expected to perform in the course of their duties. As the majority opinion points out, the courses of study provide 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." However, this provision cannot alone be the reason for considering that the appellants who are in charge of subjects other than music are required to not just stand but also "sing" the national anthem during the singing of the national anthem in the enrollment ceremony or graduation ceremony, in the course of their duties. In light of the above points, forcing people whose view of history or view of the world is negative about the national anthem to "sing" the national anthem by way of an official order can be judged to infringe the core of their inner mind concerning their thought and belief. (2) Relationship between the order to sing and the outer area of the core of the inner mind It goes without saying that freedom of thought and conscience, guaranteed under Article 19 of the Constitution, include freedom not to be forced to act against one's thought or belief, which forms the core of the inner mind. Freedom under Article 19 of the Constitution should also be understood as including freedom not to be forced to require others to act against one's thought or belief. As an extension of this, some people may have a firm idea or belief that it is impermissible for a person to forcibly require another person to act against one's thought or belief, and irrespective of whether or not the required act is consistent with their thought or belief, they would not take part in such forcible act (or perform any act by which they would be recognized from outside as taking part in such act). This firm idea or belief does not form the core of the inner mind itself pertaining to one's thought and belief, protected under Article 19 of the Constitution, but it can be regarded as falling within the outer area of such core, and it could be covered by protection under Article 19 of the Constitution as the case may be, depending on where it is positioned within such outer area in the mind of those who have this idea or belief, including the substance of their conviction (see the dissenting opinion by Justice FUJITA Tokiyasu, attached to 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 (hereinafter referred to as the "Piano Accompaniment Case judgment"). The point in dispute in the present case is the relationship between the "order to sing" and Article 19 of the Constitution, and as mentioned in (1), I consider that the "order to sing" can be judged to infringe the core of the appellants' inner mind. Even supposing that the persons subject to the Official Orders have a value-neutral view regarding the national anthem, if they have a belief that it is impermissible for the public authorities to force any person to have a particular sense of value under the circumstances where the academic views and public opinions are divided with regard to the legal evaluation of the national anthem (as it is clear from the responses, etc. given by the relevant minister, etc. in the Diet session during the legislative process of the Act on National Flag and National Anthem, this legislation was only intended to put the conventional practice into statute, and it was not contemplated to impose any obligation in relation to the hoisting of the national flag and the singing of the national anthem), such belief can also be included in the scope of protection under Article 19 of the Constitution, as falling within the outer area of freedom of thought and conscience. 4. Relationship between the Official Orders and the order to stand or the order to sing As mentioned in 1, it may be possible, though tentatively, to consider that each of the Official Orders consists of two orders issued concurrently, the "order to stand" and the "order to sing," and given the fact that the violation of the "order to sing was not taken up at all in the Disciplinary Actions," these actions were supposedly taken only with regard to violation of the "order to stand." However, the circumstances where the Official Orders were issued, as found by the judgment in prior instance, imply that the Official Orders were issued to require the appellants to "stand and sing" as an inseparable single act, and the appellants also seem to have construed it this way. As discussed in 2 and 3, from the standpoint of the appellants, the "order to stand" and the "order to sing" seem to be in clearly different positions within the core of their inner mind pertaining to their thought and belief. It may be possible to construe that the appellants understood that the Official Orders were issued to require them to "stand and sing" as an inseparable single act, and based on such understanding, in order to avoid infringement against the core of their inner mind pertaining to their belief that would be caused by their compliance with the "order to sing," the appellants also did not comply with the part of the Official Orders issued to them which required their standing (in this case, sufficient examination was not made by the lower courts as to what the appellants thought of the act of "singing" the national anthem and how they associated the act of standing with the act of singing during the singing of the national anthem). Furthermore, even if each of the Official Orders was issued as a combination of two orders, the "order to stand" and the "order to sing," and it is logically possible to evaluate these two orders separately, in light of the circumstances where the Official Orders were issued, it is only natural for the appellants to have construed that the Official Orders were issued to require them to "stand and sing" as an inseparable single act. As far as the appellants are concerned, in the course of examining whether or not the Official Orders were violated, it is inappropriate to divide each of the Official Orders into the "order to stand" and the "order to sing." 5. Brief summary As discussed thus far, the Official Orders can be deemed to have been issued to require the appellants to "stand and sing" as an inseparable single act. In relation to the view of history or view of the world argued by the appellants, the part of each of the Official Orders requiring their "standing" can be affirmed as a reasonable official order, whereas the other part requiring their "singing" is likely to infringe the core of their inner mind pertaining to their belief, or infringe the outer area adjacent to such core of their inner mind. If the appellants, despite the Official Orders issued thereto, chose not to stand (inaction) during the singing of the national anthem in the enrollment ceremony or graduation ceremony, with the intention of avoiding infringement against the core of their inner mind pertaining to their belief (or the outer area adjacent to such core of their inner mind) that would be caused by their singing of the national anthem, a question arises as to the propriety of such conduct (inaction) as a means to protect their freedom of thought and conscience guaranteed under Article 19 of the Constitution. However, in the proceedings before the lower courts, the "order to stand" and the "order to sing" were not examined separately in terms of their respective relationships with the appellants' belief, and in particular, almost no examination was made as to the relationship between the "order to sing" and the appellants' belief. What is more, I should say that the lower courts did not examine at all the relationships between the Official Orders and the "order to stand" or the "order to sing," nor between noncompliance with the "order to sing" (inaction) and the "order to stand," as well as what conduct (inaction) the appellants should have been allowed to choose as a means to avoid infringement against the core of their inner mind pertaining to their belief (or the outer area of such core). II. Relationship between the official order disputed in this case, and the official order discussed in the Piano Accompaniment Case judgment The abovementioned Piano Accompaniment Case judgment ruled on whether or not the official order, issued by the principal of a municipal elementary school to require a music teacher to play an accompaniment on the piano for "Kimigayo" during the singing of the national anthem in the enrollment ceremony, was in violation of Article 19 of the Constitution. This case is often taken up as a leading case that precedes the present case. In rendering this precedent judgment, I agreed with the majority opinion that denied unconstitutionality of said official order in question. In the sections below, I will give some explanation on the relationship between my understanding of the majority opinion on said precedent case, and my dissenting opinion on the present case, pointing out the difference between these cases. 1. The subject person of the official order involved in the Piano Accompaniment Case judgment The subject person of the official order involved in the Piano Accompaniment Case judgment is a music teacher of a public elementary school. Music teachers in elementary schools are required to engage in teaching music as their specialized subject to children at classes for studying music, and also engage in giving instructions for club activities, and playing piano accompaniments or giving instructions in singing in various events held as school events, such as enrollment ceremonies, graduation ceremonies, sports festivals, and music festivals. These duties for which music teachers are required to display their abilities as music teachers in relation to school events, etc., in addition to giving music classes, are supposed to be performed within the curricula at elementary schools, and for this reason, these duties are included in the scope of basic duties that music teachers are supposed to perform. It follows that, in the Piano Accompaniment Case, by ordering the appellant, who was a music teacher, to play an accompaniment for the singing by all of the attendants of the enrollment ceremony, the school principal merely ordered the appellant to perform the duty that he/she should necessarily perform as a music teacher. 2. Music teachers' duties In the Piano Accompaniment Case, where the appellant was ordered to play piano accompaniment for "Kimigayo," the point in dispute was whether or not the appellant was allowed to refuse to play the piano accompaniment by reason that singing "Kimigayo" or playing a piano accompaniment therefor would infringe his/her freedom of thought and conscience. Music teachers of public elementary schools are supposed to play, on the piano, not only such musical pieces as those chosen for elementary school textbooks but also those not chosen for textbooks but generally played or sung on occasions of holding various events in public elementary schools, or to play a piano accompaniment for those musical pieces, and this work is included in the scope of their ordinary duties. Where it is decided that the singing of such one musical piece be included in the program of an event, a music teacher should play a piano accompaniment for the music when he/she is requested to do so, and if an official order is further issued to require him/her to play, he/she has the obligation to comply with the order. 3. Music teacher and freedom of thought and conscience The appellant in the Piano Accompaniment Case argued that singing "Kimigayo" or playing a piano accompaniment for it openly was contrary to his/her view of history or view of the world, and playing a piano accompaniment for "Kimigayo" infringed his/her freedom of thought and conscience. However, as stated in the majority opinion of the judgment on this precedent case, it is a well-known fact that "Kimigayo" was widely sung as the national anthem in enrollment ceremonies and graduation ceremonies of public elementary schools. Therefore, from an objective perspective, the act of playing an accompaniment on the piano for "Kimigayo" during the singing of the national anthem in an enrollment ceremony is the duty that a music teacher is generally supposed and expected to perform, and it is difficult to regard it as an act by which the teacher is recognized as externally expressing that he/she has a particular thought. In particular, where this act is to be performed under an official order, it would be further difficult to recognize the teacher as externally expressing that he/she has a particular thought. Consequently, such act of playing an accompaniment cannot be deemed to be covered by protection under Article 19 of the Constitution. In addition, in the case of music teachers of public elementary schools, even when it is contrary to their belief as musicians to play any of the musical pieces chosen for textbooks or those generally and widely played or sung in school events, etc., and the act of playing these musical pieces on the piano gives them psychological pain, since such piano performance is not for the purpose of their art but for the purpose of their duties, the act of making such performance should not be judged to constrain the teachers' freedom of thought and conscience, and therefore this act cannot be deemed to be included in the scope of protection under Article 19 of the Constitution. 4. Difference between the present case and the Piano Accompaniment Case judgment The Piano Accompaniment Case judgment related to the official order issued to require a music teacher of a public elementary school to play a piano accompaniment, which was included in the scope of his/her basic duties, whereas the Official Orders disputed in the present case were issued to the appellants, who intended to smoothly perform their basic duties as teachers of public junior high schools to attend the enrollment ceremony or graduation ceremony, incidentally to their duties, and in the latter case, the relationship between their noncompliance with such official orders and protection under Article 19 of the Constitution is questioned. This is the great difference between these two cases. III. Abuse of discretion In the present case, the reasons for final appeal exclusively center on the question of constitutionality of the Official Orders, and do not include arguments as to whether the issuance of the Official Orders by the school principals constitutes an abuse of the discretion vested in a school principal, or whether or not the imposition of the Disciplinary Actions by the Tokyo BOE against the appellants constitutes an abuse of its discretion. Since the point in dispute in this case was the relationship between the Official Orders and the appellants' freedom of thought and conscience, even where the Official Orders are acknowledged to be constitutional in relation to Article 19 of the Constitution, a question may arise as to whether or not the Official Orders and the Disciplinary Actions would constitute an abuse of discretion in relation to said Article. As I see it, this case may allow discussion from such perspective, so I will make some comments on this question, although it falls outside of the scope of violation of laws and regulations subject to review by this court. 1. Issuance of an official order and abuse of discretion Where principals of public junior high schools may issue official orders to teachers or other officials of the schools pursuant to the relevant laws and regulations such as the School Education Act, such official orders may vary in the qualitative level depending on their content. For example, some official orders should necessarily be issued on condition that sanction be imposed against violation thereof by means of a disciplinary action, because, for the purpose of administering the school affairs, it is absolutely necessary for teachers and other officials to act according to the official order and violation thereof could cause considerable interference with the administration of the school affairs. In other cases, considering the degree of importance or necessity of the act subject to the official order in the administration of the school affairs or in light of the necessity to have such act performed voluntarily by the person to whom the official order is addressed, guidance is usually preferred and would suffice, but still issuing an official order in place of guidance may not be considered to be illegal. Thus, there are various levels of official orders. When the principal of a public junior high school issues an official order to require the performance of an act for which it usually suffices to give guidance to the addressed person, this conduct raises an issue of an abuse of discretion. In particular, when the act subject to an official order directly relates to the addressed person's freedom of thought and conscience, the principal should be more careful about issuing an official order. 2. Violation of official order and sanction Among official orders that principals of public junior high schools may issue for the purpose of administering the school affairs, in the event that violation occurs with regard to official orders which can usually be replaced sufficiently by giving guidance to teachers or other officials but whose issuance is not considered to be illegal, if the principal takes disciplinary action only because of violation of such official order, this would, in principle, constitute an abuse of discretion, unless under circumstances such as that the details of the violation are so vicious that the violation cannot be allowed to pass without doing anything, or the violation results in causing considerable interference with the administration of the school affairs. This is all the more so when the act subject to the official order relates to the freedom of thought and conscience of the person to whom it is addressed. Next, even where it conforms with law to issue an official order and the issuance thereof is acknowledged to be necessary, if the content of the official order directly relates to the addressed person's freedom of thought and conscience, a disciplinary action should be taken with more care. In such case, if disciplinary action is taken only because of violation of the official order, without taking into consideration such factors as the necessity of the official order and the degree of necessity, the reason why the addressed person has violated the official order, the manner and extent of the violation, and the influence caused by the violation, an issue of an abuse of discretion would arise. When it comes to the Official Orders, the issue arising from them goes beyond the issue of an abuse of discretion because, as discussed in Section I, the Official Orders were issued to require the act of standing and the act of singing as an inseparable single act, and the part of the orders requiring the act of singing relates to the appellants' thought and belief. However, apart from this point, taking the standpoint of the majority opinion and looking only at the part of the Official Orders which functions as the "order to stand" during the singing of the national anthem, this order seems to have been issued for the purpose of administering the ceremonies such as an enrollment ceremony or graduation ceremony so that the ceremony will proceed in a well-ordered manner according to the predetermined program, and since it is desirable that these events will proceed in a well-ordered manner according to programs, this order is considered to be necessary and appropriate. However, even if the ceremony does not proceed completely in a well-ordered manner, as long as it is not considerably disordered, such situation usually does not interfere with the administration of the school affairs. On the other hand, considering that the reason why the appellants did not comply with the official orders issued thereto relates to their freedom of thought and conscience, in the process of determining whether or not the imposition of the disciplinary actions against them constitutes an abuse of discretion, a qualitative question arises as to how the appellants violated the official orders, and it is also questioned whether or not their violation of the orders caused any serious result, that is, how they interfered with the administration of the school affairs. IV. Conclusion As discussed in detail in Section I, the court of prior instance should have examined and judged on questions including whether or not the Official Orders required the appellants to "stand" and "sing" as an inseparable single act to be performed during the singing of the national anthem in the ceremonies such as the enrollment ceremony or graduation ceremony, whether the "order to sing" the national anthem could directly confront and infringe the core of the appellants' inner mind pertaining to their belief, or whether said "order to sing" does not directly confront such core of their inner mind but falls within the outer area of the core, and whether or not the infringement of such core can be deemed to be included in the scope of protection under Article 19 of the Constitution. I should say that, in spite of this, the court of prior instance made a judgment without fully exmaining these questions. For the reasons stated above, I believe that it is appropriate to quash the judgment in prior instance and remand the case to the court of prior instance for further examination on the questions indicated above.

Justice TAHARA Mutsuo Justice NASU Kohei Justice OKABE Kiyoko Justice OTANI Takehiko Justice TERADA Itsuro