Business law essay

3 BUSL377 Week 3 Tutorial Class Activity This Class Activity is adopted from the case: 2004 (Gyo -Tsu) No.328 (Judgment of the Supreme Court on 27 February 2007). The Judgment (in English) can be found online at:

. Information for the Section (Background information on ‘Kimigayo ’) is from: Jun Hongo, “Hinomaru, ‘Kimigayo ’ express conflicts both past and future ”, Japan Times , 17 July 2007; Jun Hongo, “Teachers win lost pay over ‘Kimigayo ’”, Japan Time s, 8 February 2008. There are some modifications in the facts from the real case . The year “20 10” in items 1, 3 and 7 was “1999” in the real case. The year “ 200 6” in item 2 was “1995” in the real case. Judgment in the real case: (majority of 3; one Jus tice concurr ed with the majority opinion but with supplementary explanation on reasons; one Justice had a dissenting opinion) The main points of the majority opinion are as follows: a. It was only the Plaintiff’s personal view of history or view of the world concerning the role of “Kimigayo” in Japan in the past. b. It was only her personal belief in social life deriving from the view mentioned in (a). c. Her refusal to play the piano accompaniment “cannot be regarded as being inseparably connected ” with her view o f history or view of the world. d. The Official Orders requiring the Plaintiff to play the piano accompaniment does not deny the Plaintiff her view of history or view of the world. e. At the time when the Official Orders were given in this case, “it was well kno wn that “Kimigayo” was widely sung as the national anthem ” at enrolment and graduation ceremonies in public elementary schools. f. Therefore, seen objectively, the act of playing the piano accompaniment for the singing of “Kimigayo” at an enrolment ceremony “ is the duty that a teacher is generally supposed and expected to perform”. g. It is difficult to regard the teacher’s playing the accompaniment as “externally [manifesting] that she has a particular thought”. h. The Official Orders were not to force the teacher to have any particular thought , or prohibit her to have any particular thought, or compel her to say that she has or does not have a particular thought. i. The Orders cannot be deemed to force the Plaintiff “to teach a one -sided thought or idea to children ”. j. Art.15 para.2 of the Constitutions + Art.30 of the Local Public Service Act + Art.32 of the Local Public Service Act : the Plaintiff, as a music teacher of an elementary school, “was in a position to obey laws and regulations etc. as well as official orders ”. k. The Plaintiff was in fact given official orders by the school principal. l. The performance of the singing of the national anthem in an enrolment ceremony with an accompaniment on the piano played by a music teacher conforms with the provisions in Chapter 4 (II -D(1) and III -3) of the Courses of Study for Elementary Schools ( Public Notice of the Ministry of Education No.24 of 1989). 4 m. Also, the elementary school in question has performed the singing of “Kimigayo ” in enrolment ceremonies with music teachers ’ piano accompaniment. The official orders therefore cannot be considered as “unreasonable in terms of their purpose and contents ”. n. Taking into consideration the points mentioned above, the official orders issued by the school principal to the Plaintiff canno t be considered as “contrary to Art.19 of the Constitution as infringing the Plaintiff ’s freedom of thought and conscience ”. Dissenting opinion (Justice Tokiyasu Fujita):  The true question is not: • Whether or not the Principal’s order would result in pr ohibiting the teacher from having a particular view of Kimigayo • Whether or not the order will compel her to confess about her own view of the history  The true question is: • Whether or not it is permissible to force her to play the accompaniment on the piano in the ceremony despite the fact that it is very painful for her in light of her belief  The substance of her “thought and conscience” may include • Not only her view of history (containing the negative view of Kimigayo) • BUT ALSO • The negative view of a publi c organisation’s practice in forcing all participants of a public ceremony to act in union on singing Kimigayo even if it is against their will; or • The belief/idea that one should not take part in such act  If such is the case, the question in this case sho uld be: whether or not forcing a person to conduct an act against such belief/idea is unconstitutional  Public officers are servants of the community  Their human rights should be subject to constraint to some extent HOWEVER a balance should be made between the public interest (to be realized by the Principal’s order) and the necessity to protect the teacher’s “thought and conscience”  The ultimate goal of school administration should be “to realize the interest for children to receive education”  This does not directly leads to the conclusion that it is necessary to force a music teacher to play an accompaniment on the piano for Kimigayo in an enrollment ceremony  Presuming that instructing children to sing Kimigayo in enrollment ceremony is an interim goal to achieve so as to achieve the ultimate goal of realizing the public interest of children receiving education, this does not necessarily mean that it is indispensable to oblige a music teacher to play an accompaniment on the piano for Kimigayo  Regarding “main taining order and discipline in the enrollment ceremony”, the music teacher did not suddenly refuse to play; she had not intended to disturb the ceremony by force; she had repeatedly made her request; the Principal could have predicted her avoidance to pla y and in reality had prepared a tape in advance; he was able to have the ceremony proceeded without particular problems.  Regarding “securing the Principal’s right of control”, when his order is likely to restrict fundamental human rights, it should be ques tioned whether the principal’s exercise of his right of control is more important than protection of the public officer’s (the teacher’s) human rights  More detailed examination should be made to accurately identify the substance of the teacher’s “thought a nd conscience” Subsequent Supreme Court decisions confirmed again that official orders requiring teachers to stand and sing the national anthem etc. did not violate Article 19 of the Constitution.