Force, Flaws, and Protectability: Japan's Supreme Court on the Shinjuku Walkway Standoff

What happens when a public works project clashes with civil protest? When a city government's plan to redevelop a public space meets the resistance of those who occupy it, a host of complex legal questions arise. Is the city's work a "coercive public duty," obstruction of which requires a high level of violence to be criminal, or is it merely "business," which can be obstructed by less forceful means? And if the city's own actions are legally flawed—for instance, if they bypass formal administrative procedures—can the law still protect that work from being obstructed?

These questions were at the center of a major decision by the Supreme Court of Japan on September 30, 2002. The case involved a tense standoff between the Tokyo Metropolitan Government, homeless individuals living in a public passageway, and their supporters. The Court's ruling provided influential answers on how to define a public duty and, crucially, on when a government operation with potential legal defects is still "protectable" under criminal law.

The Facts: The Shinjuku Walkway Standoff

[cite_start]The case began with the Tokyo Metropolitan Government's (TMG) plan to install a moving walkway in a busy underground public passageway in Shinjuku to improve accessibility. [cite_start]The passageway, however, was home to approximately 200 homeless individuals who were living in makeshift cardboard shelters without any legal right to occupy the space.

[cite_start]In preparation for the construction project, the TMG took several steps. [cite_start]It established temporary shelters to house those who would be displaced, offering food, clothing, health check-ups, and job assistance. [cite_start]It also conducted three rounds of outreach activities over a month, notifying the residents of the impending project and encouraging them to vacate the area voluntarily.

[cite_start]When the day came to begin the "environmental improvement project," the TMG was met with organized resistance. [cite_start]The two defendants in the case, in an effort to forcibly block the project, instructed numerous homeless individuals to construct a barricade using heavy cement planter boxes and plywood. [cite_start]They then organized a sit-in with about 100 people behind the barricade to prevent TMG officials from entering the work area. [cite_start]The protestors threw eggs and fireworks, sprayed fire extinguishers at the officials and their security guards, and chanted "Go home, go home!".

[cite_start]After issuing repeated warnings, police officers intervened. [cite_start]They began to physically remove the protestors one by one, escorting them to a nearby park. [cite_start]Once the area was cleared, the TMG officials began their work. [cite_start]They persuaded the few remaining individuals to leave voluntarily and then proceeded to dismantle and remove all the abandoned cardboard shelters. [cite_start]Any valuables found were stored, with information on how to reclaim them posted on a notice board. [cite_start]The defendants were subsequently charged with forcible obstruction of business under Article 234 of the Penal Code.

[cite_start]The defendants' appeal raised two critical legal arguments: first, that the TMG's work was a "coercive public duty," not a "business," and second, that the TMG's actions were legally flawed and therefore not entitled to protection under the criminal law.

First Question: A "Business" or a "Coercive Public Duty"?

Japanese law distinguishes between the crimes of "obstruction of business" and "obstruction of performance of public duty." [cite_start]The latter requires a higher threshold of "assault or intimidation" to establish the crime. [cite_start]The established legal test, known as the "coercive force" test, holds that a public duty is only excluded from the definition of "business" if it is a "coercive, authoritative public duty"—that is, a duty that has the inherent legal power to overcome resistance.

[cite_start]The defendants argued that the TMG's project, especially since it involved the police forcibly removing people, was exactly this kind of coercive duty. [cite_start]The lower courts struggled with this question. [cite_start]The trial court agreed with the defendants, finding that the TMG's actions had the same effect as a formal coercive action and that the presence of police made it a coercive public duty. [cite_start]The High Court disagreed, artificially separating the TMG's "persuasion" efforts from the more contentious shelter removal and police actions, and found the persuasion part to be non-coercive.

[cite_start]The Supreme Court rejected both lower court approaches as flawed. [cite_start]It defined the obstructed activity holistically as "the environmental improvement project, which consisted of persuading the homeless individuals... to voluntarily vacate, and after their voluntary departure, removing the cardboard shelters...".

[cite_start]The Court then declared, without extensive reasoning, that this entire project was "not a coercive, authoritative public duty" and therefore qualified as a "business" under the obstruction statute. [cite_start]It added that this conclusion holds true even in cases where shelters were removed against the will of their owners after the owners had been forcibly removed by police. [cite_start]By not giving a detailed reason, the Supreme Court implicitly rejected the trial court's logic that the presence of police automatically makes a civil government project "coercive." [cite_start]It established that the actions of the police, as a separate entity, do not define the legal character of the TMG's work.

Second Question: Was the City's "Business" Legally "Protectable"?

[cite_start]The defendants' second major argument was that the TMG's actions were illegal and therefore not a "business" that the law should protect. [cite_start]They contended that the TMG should have used the formal, lengthy procedures of the Administrative Execution Act to remove the shelters, and that by bypassing this law, the TMG's project was legally flawed.

[cite_start]The concept that a business or activity must be worthy of legal protection (hogo-sei) to be covered by the obstruction of business statute is well-established. For example, an entirely illegal enterprise might not be protected. [cite_start]However, not every minor legal flaw strips an activity of its protection.

[cite_start]The Supreme Court conducted a detailed analysis and concluded that the TMG's project was legally protectable. [cite_start]It did not apply the standards used for private businesses (e.g., whether the business was "peacefully conducted"). [cite_start]Instead, it created a more tailored balancing test for public duties. The Court weighed several factors:

• [cite_start]On the TMG's side: The project was based on a clear public purpose (improving a major public thoroughfare). [cite_start]Furthermore, using the formal Administrative Execution Act procedures would have been highly impractical and likely ineffective, due to the difficulty of identifying specific individuals to serve with removal orders among a transient population.
• [cite_start]On the homeless individuals' side: They were illegally occupying the public passageway. [cite_start]The property they lost (cardboard shelters) was of minimal financial value. [cite_start]Crucially, the TMG had taken steps to mitigate the harm to their right to habitation by establishing temporary shelters and support systems, and had provided ample advance notice so the action was not a surprise.

[cite_start]Balancing these considerations, the Supreme Court concluded that the TMG's decision to remove the shelters without resorting to the formal, impractical legal process was based on "unavoidable circumstances" and did not have "such a legal flaw as to lose its protectability" under the criminal law.

Conclusion: A Pragmatic Approach to Public Projects

The Supreme Court's 2002 decision in the Shinjuku walkway case provides a clear, if complex, framework for analyzing the obstruction of controversial public projects. It affirms two key principles. First, a civil government project does not automatically become a "coercive public duty" simply because police are present and use force to quell illegal protests against it. The nature of the project itself, not the surrounding security operations, is what matters.

Second, and more importantly, the ruling establishes a nuanced test for the legal "protectability" of a public duty. It acknowledges that government actions can have procedural flaws, but these flaws do not automatically render the action "unprotectable" from criminal obstruction. The courts must instead conduct a balancing test, weighing the public purpose and practical realities against the rights of the affected individuals and the severity of the legal defect. In this case, the TMG's good-faith efforts to mitigate harm and the impracticality of the formal legal process were enough to ensure its project remained under the protection of the law.