In a series of cases over this past month, each of the three benches of Japan’s Supreme Court ruled that it is constitutional for school principals to order teachers to stand and sing the national anthem (the Kimigayo) at school ceremonies. In doing so, the Court definitively rejected the claim that such requirements violated the freedom of thought and conscience guaranteed by Article 19 of the Constitution of Japan. The long-running dispute is the culmination of a decade of renewed focus on the national anthem, after the Diet passed the National Flag and Anthem Law in 1999. Since then, there has been a wave of local government requirements to teachers to stand and sing the Kimigayo at school enrollment and graduation ceremonies. Teachers who refused were subjected to discipline, including suspensions, salary cuts, and failure to rehire after mandatory retirements. Acoording to the government, some 1,239 teachers and school staff nationwide were disciplined or warned about failure to comply from 1999 to 2009.
The three cases had different rationales, but came to the same conclusion, squarely following a 2007 case in which the Court found it constitutional to require a teacher to play piano to accompany the kimigayo. In one of the cases this month, a group of Tokyo teachers disobeyed an order to stand during the national anthem between 2003 and 2005, and were subsequently not rehired after retirement (as was customary for staff in good standing). The teachers had won a judgement at the District Court, but lost at the Tokyo High Court. Notable in this case was the dissent by Justice Koji Miyakawa, a former practicing lawyer, who argued for a kind of strict scrutiny of the administrative decision. The majority found that, although there had been some infringement on freedom of thought and conscience, it was reasonable given the “necessity and rationality” of the obligation.
In a concurring opinion to the third Petty Bench decision, the presiding Justice cited international sources: “In the international community, it is common sense that people should pay respect to other nations’ national flags and anthems. For [children] to acquire this sentiment, it is necessary [to learn] respect for their own country’s national flag and anthem first.” This last point strikes me as a thin and weak rationalization. Surely there is no international consensus on this point, and we have many examples of people disrespecting other countries flags.