Supreme Court Activists fined for peace fliers in SDF housing
Saturday, April 12, 2008
By JUN HONGO
Staff writer
The Supreme Court on Friday fined three peace activists a combined ¥500,000 for trespassing on a Self-Defense Forces housing compound in western Tokyo and distributing antiwar leaflets.
In upholding a lower court verdict of illegal intrusion, the Supreme Court's Second Petty Bench, led by Justice Isao Imai, ruled the activists violated the rights of the residents by passing out the fliers.
Freedom of speech "must be respected as an exceptionally significant right" but is "not granted as an absolute and unlimited privilege," the court ruled.
The court said the trespassing "was not to be considered merely as a minor violation of the law" because the manager of the compound had repeatedly reported the intrusion to police.
The activists said the verdict violated their constitutional rights.
"I feel that this is a crisis for Japan and its democracy," Nobuhiro Onishi, 34, told reporters. The verdict may dissuade other activists from speaking out against the government, he said.
Onishi was fined ¥100,000, while Sachimi Takada, 34, and Toshiyuki Obora, 50, were each fined ¥200,000.
The trio entered the SDF's Tachikawa housing complex in January and February 2004 and distributed antiwar leaflets urging SDF personnel and their families to oppose the deployment of troops to Iraq.
All three acknowledged entering the complex but said they were exercising their constitutional right to free speech. They were held in detention for 75 days after their arrest in April 2004.
Although the eight-building complex is partially fenced and posted with warnings against entering without permission, commercial leaflets are routinely delivered to mailboxes there, according to the three activists.
They were acquitted in December 2004 by the Tokyo District Court, which ruled that they had trespassed but the act did not deserve punishment.
Then the Tokyo High Court in December 2005 overturned that ruling on grounds that while the Constitution guarantees freedom of speech, it does not grant the right to enter property against the residents' will.
EDITORIAL: Ruling restricts free speech
Sunday, April 27, 2008
The Supreme Court's Second Petit Bench on April 11 found three antiwar activists guilty of trespassing when they entered a housing compound of the Self-Defense Forces in Tachikawa, Tokyo, in January and February 2004 to distribute leaflets urging SDF personnel and their family members to oppose the deployment of SDF units to Iraq. The three were fined a total of ¥500,000. Because the ruling will intimidate people planning to distribute leaflets, an important means of expressing one's opinion, it could restrict the freedoms of speech and expression, cornerstones of democratic society.
The three entered the partially fenced eight-building compound despite the presence of signs warning against entering without permission and placed the leaflets in the mailboxes of residential units. At that time, as now, public opinion was divided over the government's decision in December 2003 to dispatch SDF troops to Iraq. In January 2004, SDF members began arriving in Iraq. The investigative authorities' actions against the trio was unusual. After their arrest in February 2004, they were detained for 75 days. Amnesty International declared the three to be "prisoners of conscience."
Public prosecutors demanded six months' imprisonment for them for trespassing. In December 2004, the Hachioji branch of the Tokyo District Court acquitted the trio, saying that although their actions constituted trespass, the degree of infringement on the residents' privacy was small and their violation was not grave enough to merit punishment. The branch also pointed out that the distribution of the leaflets falls into the category of political expression, which is guaranteed by the Constitution.
But in December 2005, the Tokyo High Court found the trio guilty of trespassing and fined two of them ¥200,000 each and another ¥100,000. It said that the trio had no right to enter the compound and ignore the will of the compound's manager. It also said that the trio repeatedly distributed leaflets despite protests by residents, and therefore the damage suffered by the residents was not light.
In a ruling supported by all three justices present, the Supreme Court's Second Petit Bench accepted that freedom of expression must be respected as an especially important right in a democratic society and that the defendants' acts of distributing political leaflets constituted exercise of the freedom of expression. But referring to Article 21, Section 1 of the Constitution, which says, "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed," the petit bench said that it does not give an absolute and unlimited guarantee to the freedom of expression and instead allows necessary and rational restrictions on it for the sake of public welfare.
The petit bench said that entering the housing compound against the will of its manager infringes on the manager's right to manage the compound. It noted that since the compound had signs prohibiting entrance by non-residents and the manager submitted a damage report to the police every time the defendants entered the compound, it could not be said that the defendants' infringement on the legal interests of the residents was extremely light. The Supreme Court said that a means of expressing one's thought cannot be allowed if it unjustly infringes on others' rights. Thus it upheld the high court's guilty sentences.
The top court declared that the issue was not the constitutionality of punishing defendants in connection with what they express, but rather how they express it. What the court should realize, however, is that if it places stringent restrictions on methods of expression, the end result will be the suppression of expression itself. The justices should realize that residents who retrieve leaflets from their mailboxes do not have to meet the people who deliver them, and that if they do not like the leaflets they can simply throw them away.
The ruling also pointed out that the compound is not a place for ordinary citizens to enter freely and said that the defendants infringed on the peace of the manager and residents. But it did not say what concrete damage was suffered by the manager and residents as a result of the defendants' actions.
Although the ruling refers to the damage reports that the manager submitted to the police, it ignores the fact that the police assisted in preparing the reports. In fact, the police played an active role from the start. About two months before the arrest of the three, they reportedly asked the SDF to cooperate so that they could arrest those who delivered the leaflets on the spot. It is reported that the police later asked the SDF to submit damage reports and identify those who delivered the leaflets. According to the defendants, non-residents routinely enter the compound to deliver commercial leaflets, and the police have never taken action against them. It is therefore not unreasonable to believe that the police selectively targeted the activists. The Supreme Court regrettably chose to ignore this.
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THE ZEIT GIST
Tachikawa Three claim ruling marks 'crisis for Japan and its democracy'
May 20, 2008
Rightwingers cheer as trio's convictions for distributing fliers at SDF housing upheld
By DAVID McNEILL
Special to The Japan Times
Prisoners of conscience, communists, antiwar activists, martyrs for Japan's tottering pacifist Constitution: Toshiyuki Obora, Nobuhiro Onishi and Sachimi Takada have been called many things since February 2004, and worse besides.
Toshiyuki Obora and Nobuhiro Onishi of the Tachikawa Tent Village pose in the antiwar group's cluttered office
Tried, convicted: Toshiyuki Obora (left) and Nobuhiro Onishi of the Tachikawa Tent Village pose in the antiwar group's cluttered office. DAVID McNEILL PHOTO
In the world of rightwing bloggers, they represent the dying strains of a 60-year-old refrain: No matter how the world changes, Japan must stay out of international conflict and remain true to a yellowing document written under U.S. Occupation in 1947.
For others, including supporters who contributed ¥3-4 million to their legal fees, they are the stubborn keepers of the antiwar flame — the personification of pacifist ideals in the face of huge odds.
This epic struggle received scant attention, however, in a Supreme Court ruling last month that convicted the three of trespassing in a Tachikawa Self-Defense Force housing compound, says Obora.
"We didn't expect much from the verdict, but we thought the judge would at least deal with the implications of the case. After all, the legal ramifications of criminalizing the distribution of leaflets are so enormous."
On April 11, Justice Isao Imai ended the four-year legal battle between the state and the activists when he ruled that they broke the law by putting antiwar fliers in the postboxes of SDF members in February 2004.
At a press conference after their conviction, Onishi called the decision "a crisis for Japan and its democracy."
The arrest of the three, after decades of antiwar campaigning by their tiny group the Tachikawa Tent Village, was taken as a sign by other activists that the authorities had upped the ante against their ideological enemies in the wake of the U.S. invasion of Iraq.
Then Prime Minister Junichiro Koizumi sent a small contingent of SDF troops to Iraq in January 2004 despite a constitutional provision prohibiting the use of force to settle international disputes. It was the first deployment of Japan's military to a war zone since 1945.
The Tachikawa fliers demanded that the troops and their families oppose the SDF dispatch and said: "Bush and Koizumi Are Not Going to the Front!"
Bordering an SDF base on the outskirts of Tokyo, the compound has no gates or permanent security and is visited daily by commercial hawkers.
Buddhist priest Yousei Arakawa was subsequently arrested in 2004 for distributing flyers at a Tokyo apartment building and held for 23 days without trial. Civil servant Akio Horikoshi was also convicted in 2006 for distributing Communist Party newspapers to homes in the city.
Amnesty International dubbed the Tachikawa Three Japan's first "prisoners of conscience" in 2004, when they were detained for 75 days before release on bail. The Tokyo District Court acquitted them the same year, ruling that any injury to the residents was trivial and more than offset by the importance of protecting freedom of speech.
In December 2005, the Tokyo High Court overturned that ruling and declared Obora and his colleagues guilty of illegal intrusion. Justice Imai added a legal full-stop to that trespassing conviction, fining the activists a total of ¥500,000 for "violating the rights" of the SDF residents.
The Supreme Court recognized that "in a democratic society freedom of speech must be respected as an especially important right," but said it must not be used to "improperly violate the rights of others," adding that the SDF compound had repeatedly called the police to complain about the intrusions.
Was the court right that the activists had "disturbed the tranquillity of the personal lives" of the compound residents? Obora believes the verdict entirely misses the point.
"You can read the judgment over and over and still not understand what that means," he says.
"All we did was post fliers, the same as 'soba' restaurants or pizza delivery shops and other services. Why are those people not arrested? Because we were posting antiwar leaflets. In other words, political messages are the problem.
"But what if we were distributing leaflets telling the SDF troops to keep going to Iraq? That would be fine, right?
"So we can only conclude that (the police) are selectively eliminating ideas they don't agree with."
The group has never denied that its fliers criticized the SDF dispatch or that this caused "discomfort" to some people, but says that this should not be the basis of a criminal charge.
"Look, it causes us discomfort to see fliers in the (conservative) Sankei newspaper. But that's no reason for us to call the police," says Obora. "It was a totally unjust and sloppy verdict," with no dissenting voices from the judges, delivered on "just 10 sheets of A4 paper."
Four years after the case began they remain stunned by their arrest.
"I mean, we've been doing this for 30 years," explains Obora, laughing bitterly. "For eight years we posted fliers in the compound at least once a month."
Phone calls by The Japan Times to the SDF housing complex were not returned, but on a visit there we found ads for local restaurants still being stuffed into postboxes, despite notices on the walls prohibiting them. Most residents refused to comment but one housewife, speaking anonymously through an intercom, said the flow of commercial fliers had not slowed since 2004.
The trial cost millions of yen and consumed the lives of Obora, 50, a cook at an elementary school, and Onishi and Takada, who are both 34 and work as home helpers with the disabled. Obora believes only support from work colleagues saved his job.
"If something good has come of the case it is that we are now known across the country and our support has grown," he says, although he admits the group still has just seven members that share a cramped makeshift office in Tachikawa. The office was raided by the police after their arrest.
Being convicted of a criminal offense has not dampened their taste for action. They attended an antiwar demo in Tachikawa last month where the small group of protesters — about 90, according to Obora — was almost outnumbered by special police.
"They must think we're very important," he laughs.
Years of activism have helped them weather the storm. Obora has been around the antiwar movement since the 1970s and Onishi has been campaigning since the first Gulf War in the early 1990s.
"I felt unhappy that America was preparing to fight wars way into the future, despite the end of the Cold War," he says, explaining why he joined up.
"Irrespective of the verdict," he says he intends to keep campaigning. "Now more then ever it is important to keep going."
The final conviction of the Tachikawa Three was welcomed by the conservative press and the Justice Ministry, which called last month's verdict "satisfactory." But there have been many dissenting voices. The dispatch of troops to Iraq "spurred the worst instincts of the country's authoritarian past," says Larry Repeta, professor of law at Tokyo's Omiya School.
"Japan's transformation into a peaceful and democratic society in the aftermath of World War II surely stands as one of the great success stories in democracy-building of all time. But the arrests, the detentions and the Supreme Court's summary action in upholding them are reminders that Japan's democracy remains a work in progress."