A Victory for the Minority—In a Land of Uniformity
BY AWAKE! CORRESPONDENT IN JAPAN
SEVEN television cameras as well as dozens of reporters were waiting for the young plaintiff to appear in the Osaka High Court Press Club when 19-year-old Kunihito Kobayashi and his parents entered the conference room with broad smiles on their faces. Camera flashes were frequent in the room as they answered reporters’ questions.
“I am very happy to have received an impartial judgment for my case,” said Kunihito. “I would like to see a world where anyone can be admitted to, promoted in, and graduated from any high school regardless of his or her religious beliefs.”
The Osaka High Court had reversed the decision of the lower Kobe District Court and granted Kunihito what he had been seeking, the right to receive an education regardless of his religious beliefs.
The Issue
What was at issue in this lawsuit was his expulsion from the Kobe Municipal Industrial Technical College (called Kobe Tech for short) for not participating in kendo (Japanese swordsmanship) drills, for religious reasons. Following the decision of the Osaka court revoking the school’s actions in denying his promotion and then in expelling him, Kunihito expressed his wish to resume his study in electrical engineering. The first three years of this five-year college are equivalent to three years of high school.
Kobe Tech had insisted that Kunihito take kendo drills as a part of his physical education class. However, because he was one of Jehovah’s Witnesses, his Bible-trained conscience did not permit him to participate in martial arts drills. For the reporters at the press conference, Kunihito opened his Bible and explained his stand: “They will have to beat their swords into plowshares and their spears into pruning shears. Nation will not lift up sword against nation, neither will they learn war anymore.”—Isaiah 2:4.
Why, then, did a young student have to turn to the law to secure freedom of religion and the right to be educated? Professor Koji Tonami of Tsukuba University observed: “There can be unexpected restrictions laid upon the faith of believers as a result of apathy and lack of understanding.” Although the government or community may not intentionally oppress a religion, there may be cases where religion is unwittingly suppressed.
Why were such “unexpected restrictions” imposed upon the right of the minority? “Because the Japanese society has esteemed a social system that forces the minority to conform to the majority,” answers Professor Hitoshi Serizawa of Aoyama Gakuin University. The pressure to conform to society as a whole is indeed strong in Japan.
It is not easy for young ones to be in a school system that ostracizes those who are different. This, however, is not just a matter of concern for a religious minority. Let us follow the case from its beginning and see what was at issue and how this decision affects the general public.
Establishing the Right of the Minority
Until 1990, Kobe Tech did not require its students to take martial arts. But after the completion of a gymnasium with a martial arts drill hall, the school started to require kendo drills of its students. In 1990 the physical education faculty of the school took a tough stand toward Jehovah’s Witnesses who entered Kobe Tech at the age of 16. At their petition to be exempted from kendo drills, one teacher said: “Quit school if you can’t do what the school tells you to do!”
For the Witness youths who stood firm for their belief, the prospect of being promoted to the next grade was bleak. Another teacher said: “You won’t get any credit even if you work hard in other [physical education] events.” Five students stuck to their belief in the Bible’s teaching by not taking the sword even if it was made of bamboo. Three of them were baptized Witnesses of Jehovah, and two were unbaptized, but all affirmed their belief in the Bible. They were willing to accept whatever alternative activities the teachers would require of them.
As a result of their stand, they were denied promotion to the next grade. When the next school year started in 1991, the physical education teachers gathered the five students who refused to participate in kendo drills and nine freshmen who shared the same belief and said: “You’re going to have to get ridiculously high marks if you want to be moved up a grade. Hardly any of you will get such marks.” The teachers further told them: “This is not compulsory education. [In Japan, compulsory education is from the first grade through the ninth grade.] We can tell you to ‘get out of here.’”
The five students filed a suit against the school in the Kobe District Court contending that the school’s action infringed upon their constitutional rights of freedom of worship and to receive an education. At the same time, the five students petitioned the Kobe District Court and then the Osaka High Court to stop enforcement of the action denying promotion so that they could take lessons while the case was being heard. However, the petitions were denied by both courts.
Two of the five students were again denied their credits for physical education for the following school year and were threatened with expulsion. As a result, one of them quit school upon the school’s persuasion. The other refused to accept the school’s suggestion that he quit. That student, Kunihito Kobayashi, was expelled from the school.
The school rules stated that a student who failed a grade twice should be subject to an immediate expulsion as “one who is inferior in learning with no prospect of graduation.” But was Kunihito “inferior in learning”? Even including physical education, which, because of the kendo issue he failed with a score of 48 points out of 100, his average for all subjects was 90.2 points. He was at the very top of his class of 42 students! He was well behaved and was willing to learn.
Petitions were made to the Kobe District Court and then to the Osaka High Court to stop the enforcement of this expulsion action. But both courts denied the petition.
The District Court’s Decision
On February 22, 1993, almost two years after the five students filed the lawsuit, the Kobe District Court handed down its decision in favor of the school. “It cannot be denied that the plaintiffs’ freedom of worship was somewhat restricted by the school’s requirement to participate in kendo drills,” admitted the presiding judge, Tadao Tsuji. But he concluded that “the actions taken by the school did not violate the constitution.”
The students promptly appealed the case to the Osaka High Court. The district court decision, however, disturbed many a thinking mind. One person expressed himself in the readers’ column of the Mainichi Shimbun newspaper and said: “The decision this time centered around the judgment that ‘it infringes on religious neutrality to tolerate nonparticipation in kendo lessons on religious grounds.’ However, neutrality means not taking sides with either party at issue. And when it comes to religious neutrality, what is at issue is protecting the faith of the minority against the majority. Therefore, this decision virtually denies freedom of religion, and the court itself has infringed on religious neutrality.”
Many were alarmed and were moved to give their opinions. Dr. Takeshi Kobayashi, a professor of Constitution at Nanzan University, sent his opinion on this case to the Osaka High Court and said: “This case in dispute is definitely asking the courts of our country how they will handle the challenge of protecting the rights of the minority. . . . The college, under the veil of the separation of religion and the State as well as the neutral stand of public education, flatly refused to tolerate the religious stand of a minority on the basis of the common view of the majority. The lower court decision blessed such actions as being lawful and constitutional. However, even if the beliefs of a minority may not be understood from the viewpoint of what is commonly accepted as religious, if such beliefs are sincere, they must be respected. The court is especially required to judge with the awareness of being the ultimate defender of the minority.”
Another law specialist, Professor Tetsuo Shimomura of Tsukuba University, said: “What is disturbing in this case is the still deep-rooted tyrannical tendencies on the part of the school.” He said in a television interview that it reveals a shortcoming on the part of educators to oust a student without giving him any alternative measures and reveals a lack of consideration for the welfare of students.
On February 22, 1994, the Kobe Bar Association made an official recommendation to the principal of Kobe Tech to reinstate Kunihito. It declared that the school’s action in denying promotion for Kunihito and in expelling him were infringements on his freedom of worship and his right to receive an education.
Impartial Decision
While the appeal hearings were proceeding, the four plaintiffs other than Kunihito decided to drop their case. This was because three had already been promoted to the next grade and one had been forced to quit. This resulted in the point of dispute being focused on the school’s handling of Kunihito.
The four ex-classmates of Kunihito, however, gave him moral support by always trying to be at the hearings. By saving his meager earnings from his part-time job, the student who was forced to quit school donated a total of 100,000 yen to help Kunihito keep up the legal battle.
On December 22, 1994, Kunihito together with the other students awaited the words of Chief Judge Reisuke Shimada of the Osaka High Court.
“The original decision is revoked,” ruled Judge Shimada.
Judge Shimada, in his epoch-making decision, ruled that Kunihito’s reason for refusing kendo drills was sincere. The judge stated that as an educational institution open to the public, Kobe Tech has the obligation to give educational consideration to its students. He also stated that the disadvantage to Kunihito for refusing to take kendo drills was extremely great and that the action to expel him was none other than robbing him of all opportunity to receive an education.
Judge Shimada ruled that the school was to provide for alternative measures. Providing such alternative measures, he said, is in no way promoting or assisting the appellant’s religion, nor does that oppress other students. “There is no evidence on the part of the Appellee [the school] to have carefully considered the alternative measures,” the judge stated. “Rather, . . . the Appellee stubbornly maintained the policy of not tolerating the refusal of kendo drills and did not even start to consider the possibilities of providing alternative measures.”
How the Decision Affects You
Why should you be interested in this victory of a young man belonging to a minority group? In his book The Court and the Constitution, former Watergate special prosecutor Archibald Cox asked a similar question, about Jehovah’s Witnesses in the flag-salute issue in the United States: “Why should we worry about the spiritual liberty of that tiny minority?”
In answering this question, Cox said: “Part of the answer lies in the premise of individual dignity on which our society rests, a dignity belonging to both orthodox and nonconformist. Part lies in the awareness that if the State may silence the speech of Jehovah’s Witnesses. . . , our own may be next.”
Professor Takeshi Hirano of the Ryukoku University concurred with Cox and said this about the kendo case: “Thinking people consider that they owe the freedom of worship as enjoyed in the United States now to Jehovah’s Witnesses, who fought for their rights in many court cases. In our country [Japan] too, it is hoped that freedom of worship will be established and enhanced through cases like this one.”
Jehovah’s Witnesses have spared no effort in legally defending their beliefs, and they have contributed greatly to the establishment of basic human rights in the 20th century. In many countries Jehovah’s Witnesses have spearheaded legal battles championing the patients’ right to informed choice, the people’s right to decide how to show respect for the national flag, and the individual’s right to express his own beliefs to others. The victory at the Osaka High Court adds another chapter to the record of Jehovah’s Witnesses’ contributions to the establishment of the rights of the minority.
Respecting Others With Different Values
In addition to the benefit of promoting human rights, the issue of tolerating the beliefs of the minority has a bearing on your life in another way. Professor Kaname Saruya of the Komazawa Women’s University referred to this case and said: “Freedom of religion that is recognized by the constitution was ignored just because of [the student’s] being heterogeneous. The exclusion of what is heterogeneous is widespread in Japan.”
In today’s society the pressure to root out the heterogeneous, or what is different from the norm, is very strong. Bullying, so prevalent in schools in Japan as well as in other countries, is an example of this tendency to ostracize what is different from the community. Commenting on the problem of school bullies, Hiroshi Yoshino, the superintendent-general of the Metropolitan Police of Tokyo, said that according to a survey conducted by the National Research Institute of Police Science, an overwhelming proportion of the reasons for bullying, from the bullies’ side, involved personalities and actions of the bullied that were different. He concluded: “I think a morbid element hidden deep down in the Japanese society, that of rejecting idiosyncrasies or what is heterogeneous physically and mentally, is now spouting out.”
The tendency to exclude what is different from society is seen everywhere, not just in Japan. Yet the capacity to tolerate different values is the key to peaceful coexistence. In this regard an editorial in the Asahi Shimbun stated that the decisions of the Kobe District Court and the Osaka High Court “made a stark contrast.” “The two decisions,” said the newspaper, “seem to symbolize two ways of thinking,” one of management-oriented tyranny and the other of tolerating different values.
Are you ready to tolerate different values? Are you willing to look into the validity of the stand of others? Interestingly, Archibald Cox, mentioned earlier in this article, added another reason for concern about the minority: “Part lies in the awareness that some far-out minority may hit upon the truth—a truth postponed or forever lost by its suppression.”
Apparently, Kobe Tech is not interested in the truth that they might have suppressed, nor have they shown a tolerant view. Rather, they have appealed the case to Japan’s Supreme Court. How will the Supreme Court rule on this case? We have to wait and see.
Picture on page 14]
Kunihito (center) and the four other original plaintiffs