Top court rules against harsh penalties in Kimigayo case

January 17, 2012


The Supreme Court said strict penalties should not be imposed against public teachers who refuse to stand for the singing of the Kimigayo anthem or the raising of the Hinomaru national flag at school activities.

The top court’s decision on Jan. 16, in which it rescinded a pay cut and a suspension of work, was the first time it set down standards on disciplinary action in such cases. It is expected to have an effect on how the Osaka prefectural government enforces an ordinance requiring all public school teachers to stand and sing Kimigayo, which was legally defined as Japan's national anthem in 1999, at school activities.

"While warnings can be considered within the limits of discretionary power, there is a need to consider carefully the implementation of pay cuts and work suspensions," the ruling by the First Petty Bench said.

The Supreme Court ruling covers three cases submitted by 171 current and former teachers at public schools in Tokyo. The lawsuit demanded the rescinding of the Tokyo metropolitan government’s disciplinary measures--168 warnings, one pay cut and two suspensions from work--against teachers who remained seated during the singing of Kimigayo and the raising of the Hinomaru.

Many teachers around the country have refused to stand for Kimigayo and the rising-sun flag because they can be considered symbols of Japan’s military past.

The Tokyo District Court and the Tokyo High Court had handed down conflicting rulings in the cases.

While the Supreme Court recognized the discretionary power of the Tokyo metropolitan government to hand down disciplinary measures, it also placed limits on excessive disciplinary measures that could be based on such reasons as an individual's views of history and the world.

The First Petty Bench left untouched the warnings given to the 168 teachers, saying, "There are no direct disadvantages for the teachers from the standpoint of work responsibilities and salary."

But the court rescinded a one-month work suspension for a teacher who did not stand for the anthem on three separate occasions over a two-year period as well as the pay cut given to one teacher.

Pay cuts and work suspensions place teachers at a disadvantage not only in terms of salary, but future promotion prospects, the ruling said.

"There is a need for specific circumstances that would make the measures appropriate by considering not only the past record of disciplinary measures but also from the standpoint of balance between the disadvantages to the teacher and the need to maintain order,” the petty bench ruled.

However, the top court left standing the three-month suspension for a second teacher who interfered with the raising of the Hinomaru at graduation ceremonies and distributed to students a document that criticized the principal's response.

The plaintiffs had also sought compensation for damages, but the Supreme Court rejected those claims for all but the one teacher whose work suspension was rescinded. The top court ordered the Tokyo High Court to reconsider the compensation request.

The ruling was the majority opinion of four of the five justices on the First Petty Bench.

Justice Koji Miyakawa, originally a lawyer, issued an opposing ruling that said in part: "Not standing is an act of conscience and is completely different from ordinary illegal or delinquent acts. Even the warnings are too strict since there was no interference in the ceremony itself."

While going along with the majority opinion, Justice Ryuko Sakurai criticized the Tokyo metropolitan government's disciplinary measures as being too mechanical. Under those regulations, a warning was issued for not standing once, a one-month pay cut for not standing twice, a six-month pay cut for not standing three times and a work suspension for refusing to stand on four occasions.

In a ruling last year, the Supreme Court decided that orders given by school principals to other teachers to stand and sing the anthem did not constitute a violation of the constitutional guarantee of freedom of thought and conscience.

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Supporters of the plaintiffs hold up banners about the Jan. 16 ruling by the Supreme Court. (Toshiyuki Tsunenari)

Supporters of the plaintiffs hold up banners about the Jan. 16 ruling by the Supreme Court. (Toshiyuki Tsunenari)

  • Supporters of the plaintiffs hold up banners about the Jan. 16 ruling by the Supreme Court. (Toshiyuki Tsunenari)

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