Asia Centre

Firstly, Japanese “orphans”, who were abandoned by their government in Manchuria after the defeat, won a case in the Kôbe district court on December 1^st, although they lost another in the Tôkyô district court on January 1^st. Two thousand of the two and half thousand orphans who have returned to Japan have filed lawsuits in 15 Japanese courts.

The Kôbe district court ordered the government to pay compensation of 468.6 million yen to 61 of the 65 plaintiffs (four saw their request denied), saying that the government had an obligation to repatriate its citizens and promote their reintegration into Japanese society. Many of the Japanese concerned had lost their parents during the war and been placed in Chinese families before returning to Japan nearly forty years later. Some had taken out Chinese citizenship in the meantime.

In July 2005, the Ôsaka district court had rejected a similar complaint, and on January 30^th 2007 the Tôkyô district court in turn rejected a request for compensation made by 40 plaintiffs. For the presiding judge, Katô Ken’ichi, the suffering endured by these people is not imputable to the government, which had no obligation to resettle them quickly. The Prime Minister has nonetheless instructed the Health Minister, Yanagisawa Hakuo, to look at new measures of support.

Various associations became concerned about the fate of these people following the normalisation of Sino-Japanese relations, and the government began to organise their return from 1981. In 1994, a law was passed outlining assistance arrangements for the repatriation and autonomy of those returning, to be implemented both centrally and locally.

On February 8^th, the Supreme Court ordered the Hiroshima district to duly compensate the victims of the atomic bomb, even when they were no longer living in Japan. Some of these survivors had settled in Brazil, others were living in South Korea.

Survivors of the bomb have a right to a monthly pension of 34,000 yen by virtue of the Law on the Protection of Survivors of the Atomic Bomb (Hibakusha Engohô). In 1974, a circular of the Ministry of Health had restricted the right to compensation to those survivors who were resident in Japan. This circular, scrapped in 2003, was discriminatory, given that it excluded not only Japanese citizens living abroad, but also foreigners who had survived the nuclear bombs of Hiroshima and Nagasaki. Three hundred people are thought to have had their plea for compensation rejected by virtue of the application of this decree.

The victims wanted to assert their rights retrospectively for the period 1974-2002. The local government of the district of Hiroshima, however, cited a clause in the law on local bodies (Chihôjichihô) which imposed a five-year time limit for any claim holding local bodies as the responsible party, and thus refused to pay for the period prior to 1997. The Supreme Court forced it to.

Finally, on February 27^th, the Supreme Court handed down a decision concerning the presence of the national anthem in schools. In 1999, a law was passed which turned the first stanza of the Kimigayo into the national anthem, and made the Hinomaru the national flag. Since 1989, the Tôkyô education board, in particular, had required schools under its jurisdiction to play the national anthem at ceremonies marking the opening and close of the school year. In 2003, it gave notice of its intention to sanction teachers who did not conform to its directives. Three hundred teachers were accordingly reprimanded by the board.

In September 2006, some of these teachers had won a legal case. The Tôkyô district court had fined the government of Tôkyô 12.03 million yen to be paid in compensation to 401 teachers (30,000 yen per teacher) on the grounds that forcing anyone to sing the national anthem in front of the national flag constituted a violation of an individual’s freedom of conscience. The education board’s regulations requiring this and accompanying it with sanctions went beyond the law and had to be withdrawn. The government of Tôkyô announced that it would appeal against the ruling and, in consequence, the matter is still before the courts.

In its decision of February 27^th, the result of an action initiated in 2004, the Supreme Court ruled in favour of the government of Tôkyô, yet without thereby offering any solution beyond the cases at hand.

A female music teacher had refused to play the national anthem when asked to do so by the principal of the primary school at which she was teaching, and so was duly reprimanded by the education board. In her lawsuit, the teacher invoked her freedom of conscience.

However, the court found that the principal’s instructions did not infringe the teacher’s freedom of conscience. She was not required to profess opinions that were different from her own or to adhere to any particular opinion for that matter; besides which, playing the piano in public was consistent with her duties.

The court also referred to the law on school education (Gakkôkyôiku Hô), according to which (art. 19.2) primary school education, by explaining both the traditions and recent situation of the territory and nation should develop the understanding of pupils and imbue them with a spirit of international cooperation. The principal’s instruction did not run counter to international perceptions.

In a dissenting opinion, Judge Fujita Tokiyasu considered that the teacher could legitimately feel that her freedom of thought had been violated.

The order to accompany the national anthem on the piano does not therefore infringe the freedom of thought and conscience of a music teacher. Yet the Court did not make a pronouncement on the question of whether the order to sing would be regarded as an infringement on the freedom of conscience of a history teacher, for example.

The ruling on “the incident of the second public primary school”

In March 2000, the principal of the primary school concerned held the first ceremony subsequent to the vote and the entry into force, in August 1999, of the law on the anthem and the flag. He had taken the decision to raise the flag, and a police contingent had been put in place in anticipation of events possibly getting out of hand, but the teachers found themselves locked out of the school. After the ceremony, the children and their families complained to the principal. The episode could well have been without any follow-up, but the Sankei of April 5^th carried the sensational headline, “Thirty children let down the flag”. The education board and local assembly took charge of the matter. The main teachers were given a rebuke on account of their collective protest to the principal before the ceremony. The teachers then instituted proceedings calling for this reprimand to be quashed.

The tribunal judged that the teachers should have obeyed the principal. What is the significance of this ruling? The dispute did not oppose the teachers and the principal over the issue of the flag-raising. The teachers had requested that they be allowed to wear a pale blue “peace ribbon” during the ceremony, without any writing on it. In consequence, the rebuke did not reprimand the teachers’ behaviour in itself, but rather their attitude which was opposed to the raising of the flag. What remains in abeyance is the freedom of conscience and thought of the teachers, and the capacity of the justice system to protect    their basic rights.

The “preventive case of opposition to the flag and anthem”

In June 2003, after Ishihara Shintarô’s reelection as governor of Tôkyô, an office of ceremonies marking the beginning and end of the year in public schools was set up within the education board of the city of Tôkyô. Shortly thereafter, memorandum 10.23 was circulated for the attention of the teaching staff, making it compulsory for everyone ”at ceremonies, to turn towards the flag raised to the appointed spot, and to sing the national anthem in unison”.

Attitudes to the national flag and the national anthem express a national vision. It must be remembered, however, that our flag and anthem did not change after the defeat, and their history is intimately bound up with that of imperialism with which the present Constitution broke. They are also symbols of the thinking of the imperial nation, militarism, the anti-foreign movement and absolutism. A questionable historical view is being expressed by means of these symbols.

Ruling 9.21 of the 36^th chamber of the civil court came out of a lawsuit instigated preventively by 401 teachers, in the absence of any action causing them actual harm. The tribunal allowed that individual thinking in relation to the flag and the national anthem did fall under the category of freedom of opinion guaranteed by article 19 of the Constitution. The ruling stipulates that ”the undeniable, historical truth is that our country’s flag and anthem were an element of imperialist and militarist thought from the Meiji period until the Second World War; even today, some of our fellow countrymen consider that, from a religious or political perspective, the flag and the anthem are not neutral in terms of values”. The ruling found that memorandum 10.23 and the order based on it to be upstanding during the singing of the national anthem, to sing, and if need be to accompany the anthem on a musical instrument were contrary to article 19 of the Constitution.

The Supreme Court did not follow the path opened up by the district court in its February ruling, which was subsequent to the article.