Blog of the International Journal of Constitutional Law

Japan update: Kimigayo lawsuits fail again

The Tokyo District Court rejected an attempt by Tokyo schoolteachers to nullify the punishments they received for refusing to participate in ceremonies involving the national anthem. This is consistent with the earlier Sup Court decisions we noted here as well a more recent decision by the Supreme Court in July that rejected similar appeals from Tokyo and Kitakyushu. The analytic issue this raises is what the plaintiffs hope to gain through what is apparently futile litigation. And the answer clearly lies in the realm of the symbolic. Even a losing lawsuit helps draw attention to the issue, and also may provide some moral closure to the teachers who seek to exercise their rights of freedom of conscience. Still, it would be interesting to know of systematic research into the phenomenon of lawsuits certain to lose, in Japan and elsewhere.


One response to “Japan update: Kimigayo lawsuits fail again”

  1. David Law Avatar

    It’s a good question. First, there’s the scenario where Japanese plaintiffs lose on procedural grounds but “win” in dictum. (“Gee, if you had standing, this would be an Article 9 violation, but you don’t have standing.”) Second, there’s the scenario where the Japanese court upholds a law but suggests in dictum that it ought to be revisited. So futile litigation can not only generate publicity, but also lead to (a) a moral victory, and/or (b) a ruling that doesn’t obligate the government to act but may shame it into doing so. So there’s futile, and then there’s “futile”. And at the very least, the government is forced to explain its actions publicly, and the court is forced to rationalize what the government has done.

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