Fourth Meeting

Thursday, November 29, 2001

Meeting Agenda

1. Report on Nagoya Open Hearing (held November 26, 2001)

Reporter: Acting Chairman, KANO Michihiko (Democratic Party of Japan and Club of Independents)

2. Matters relating to the Constitution of Japan (A Vision for Japan in the 21st Century)

After statements were heard from Prof. MUSHAKOJI Kinhide and Prof. HATAJIRI Tsuyoshi concerning the above matters, questions were put to them.

Informants

Members who put questions to Prof. MUSHAKOJI

Member who put questions to Prof. HATAJIRI


Main points of Prof. MUSHAKOJI's statement:

1. Issues Pertaining to Human Rights Protection in Japan

1.1 Issues and Problems Identified by United Nations

>> Referring to Japan in its concluding observations issued in March 2001, the United Nations Committee on the Elimination of Racial Discrimination expressed its concern about discrimination affecting ethnic minorities and others in Japan, including South Korean and North Korean residents of Japan, the Ainu people, and the Burakumin.  The government of Japan responded that these comments were not appropriate in light of the interpretation of the International Convention on the Elimination of All Forms of Discrimination. However, it is obvious that the question of human rights goes beyond arguments concerning the interpretation of existing standards and conventions. What is important is to appreciate the "spirit of the law" which underscores the process of formulating these standards and to base one's interpretations of the standards on the "spirit of the law."

1.2 The Root of the Problem -- Self-Centeredness of the Nation

>> Human rights protection in Japan is provided within a framework which is narrowly focused on the average Japanese person. Consequently, the human rights of members of minority groups tend to be neglected. The number of foreign residents in Japan has increased in recent years, and there is a need to approach the question of human rights protection with a full awareness of the process of globalization.
 

2. Legal Principles and Concepts of Nationhood Underlying Human Rights Laws

2.1 Japanese Concept of Pure-Blooded Nation

>> When Japan opened its doors to the world in the Meiji Era and faced the powers of the West, the concept of Japan as a "divine nation" of ethnically homogeneous Yamato people was used to bring the people together and to maintain the independence of the nation. Japan's subsequent development was based on this foundation of unity and independence. On the other hand, to maintain the unity of the middle classes, "Burakumin" were labeled as the lowest level of people and targeted for discrimination.

2.2 Tolerance of Diversity a Prerequisite for Human Rights Protection

>> With increased globalization, growing numbers of foreign citizens are residing in Japan. The spirit of "respect for harmony" enunciated by Prince Shotoku signifies harmony with other ethnic and racial groups. However, we Japanese have pursued the "respect of harmony" only among ourselves. Japan should return to Prince Shotoku's principle of "harmony."  The "right to live in peace" established in the preamble of the Constitution applies not only to the Japanese people. Mindful that this constitutes a right shared by all peoples of the world, it is necessary for us to think about what it means to be in "harmony" with many peoples and races.
 

3. Human Security and the Right to Live in Peace

>> The government is calling on the international society to pursue the guarantee of "human security." But the same position must be advocated within Japan where many foreign citizens are living. The same call must go out in Japan for the preservation of human security and the right to live in peace and to be free of fear and want as it applies to all of humanity. In view of the spirit of "respect for harmony" underlying the Constitution of Japan, we must establish the right to live in peace and the right to human security while giving due consideration to the safety of minorities.
 

Main points of questions put to Prof. MUSHAKOJI

MORIOKA Masahiro (Liberal Democratic Party)

>> There is a tendency among developing countries to view the economic assistance given to them by the advanced countries as naturally deserved compensation for past imperialistic domination. I feel that our taxpayers cannot accept this line of thinking as a reason for continuing our ODA and other assistance programs. What is your view on this matter?

>> All countries assign the highest priority to their own national interest when taking any course of action. You have criticized Japan for its "self-centeredness." However, do you not feel that, in certain respects, this is unavoidable?

>> What we have seen in postwar Japan is the worship of economic success, uncontrolled egoism, the devastation of education and a marked increase in crime. To me, these phenomena indicate that the Japanese people have lost their spiritual backbone. What is your view?

>> The Self-Defense Forces and the Japan-U.S. Security Treaty have ensured Japan's postwar peace, and I believe that these obviously conform with the provisions of Article 9. I find it highly undesirable that considerable debate persists among the public regarding this point. What is your view on this matter?

>> The concept of "human security" that you have mentioned does not appear in the Constitution. How would you describe the relation between the two?
 

HOSOKAWA Ritsuo (Democratic Party of Japan and Club of Independents)

>> As you have explained, minorities remain exposed to discrimination. In order to eliminate this, I believe it is important to enact laws prohibiting discrimination. What measures do you think can be taken to facilitate and add to the effectiveness of this process?

>> I am in agreement with your position of "from national security to human security." However, I do not think that it is realistic to consider these to be mutually exclusive. What are your views on the relation between these two forms of security?

>> U.S. military action in Afghanistan following the recent terrorist attacks contravenes the principles of "human security." On the other hand, you cannot summarily reject actions taken to eradicate terrorism. What are your views on the U.S. military action?
 

UEDA Isamu (New Komeito)

>> Opinions vary on whether to open wide the gates to foreign workers. Some are positively in favor. But more cautious voices argue that Japanese society has not been prepared for accepting foreign workers and that greater influx will lead to turmoil. What are your views concerning immigration control in the future?

>> You have advocated cutting the UN budget for peace-keeping activities and reallocating these funds to social development projects. Do you not think that UN peace-keeping activities have a positive impact on human security?
 

FUJISHIMA Masayuki (Liberal Party)

>> Do you consider human rights to be an absolute or a relative value?

>> As a racially homogeneous nation, don't our views of human rights differ from the views of the United States which is a racially diverse nation?

>> Suppose a conflict arises between "human security" and "national security." Do you not think that ultimately preference must be given to the latter?
 

SHIOKAWA Tetsuya (Japanese Communist Party)

>> U.S. military action in Afghanistan has killed and injured civilians and created waves of refugees. Refugee relief is in total agreement with the principle of the Japanese Constitution which ensures the right to live in peace. In your opinion, what kind of refugee relief measures are required?

>> Japan certainly will not find itself isolated in the international community if it claims that it cannot participate in military action for the resolution of international conflicts because of constitutional strictures on the use of force. On the contrary, don't you think that such a position will be met by international appreciation? What kind of relation do you think should exist between Japan and the United States?

>> I believe that Japan's failure to admit that it conducted wars of aggression and to accept its war responsibilities has generated distrust among neighboring Asian countries and also led to discrimination against foreign nationals. What is your view on this matter?
 

UEDA Munenori (Social Democratic Party)

>> The emperor system exists on the other end of the scale which places the "Buraku" at the lowest end of society. Assuming this, what meaning does the emperor system have for Japan? Is it not necessary for us to discuss the future form the emperor system should take?

>> When discussing the Constitution, I believe there is a certain taboo concerning any discussions pertaining to the form of government. Do you not feel that this comes from the fact that the spirit of the Constitution has not properly permeated Japanese society?

>> There are various types of discrimination, such as discrimination against the Burakumin and the Ainu people. Do you not believe that separate laws will be required to eliminate each specific form of discrimination?
 

MATSUNAMI Kenshiro (Conservative Party)

>> The abolition of the death penalty is a human rights issue which I believe needs to be debated in the future. What are your views on the abolition of the death penalty?

>> If the death penalty is abolished, life imprisonment may be considered as an alternative punishment. Given that life imprisonment differs from the system of indefinite incarceration which allows for parole, what are your views on life sentences?
 

UDAGAWA Yoshio (21st Century Club)

>> The preamble of the Constitution contains indications of the "spirit of harmony," which you have mentioned, and the doctrine that all people are born good. However, such idealistic expressions will not suffice in protecting the nation. Do you not believe that we need to create a Constitution which conforms to reality?

>> Problems of discrimination are gradually declining and are being eliminated. In this environment, there is the problem of the abuse of affirmative action and preferential treatment which can be called "privileged discrimination." Do you not think that "privileged discrimination" should also be viewed as a form of discrimination?


Main points of Prof. HATAJIRI's statement:

Introduction

>> I wish to express my views on the "establishment of a Constitutional Court without recourse to a constitutional amendment."
 

1. Defining the Problem

>> The Supreme Court's process of judiciary review has been frequently criticized for being excessively passive and suffering from "blockage."

>> There are three possible methods for resolving this problem: [1] review the operation of the current system, [2] revise the current system through legislative revision, and [3] establish a Constitutional Court through a constitutional amendment.
 

2. Discussions and Criticisms Concerning a Constitutional Court

>> In November 1994, the Yomiuri Shimbun published its proposals for a constitutional amendment. Discussions on a Constitutional Court began at this time as the Yomiuri proposals contained this idea.

>> Those arguing in favor of the introduction of a Constitutional Court cite the following points: [1] to break through the current "blockage," it is necessary to revise the current system; [2] the establishment of a Constitutional Court will facilitate speedy and appropriate judgments on constitutional matters; and, [3] under the current system, lower courts cannot be expected to act positively on constitutional issues.

>> Those arguing against the introduction of a Constitutional Court cite the following points: [1] facile approaches to systemic reform are dangerous; [2] speedy judgments affirming constitutionality will clearly underline the function of the courts in upholding the status quo; [3] the concentration of the right of judiciary review in the Constitutional Court will undermine judgments made by the lower courts based on a high awareness of human rights; and, [4] the "transfer of the political process to the judiciary" will weaken the system of parliamentary democracy.
 

3. Towards Systemic Reform

>> There are pros and cons to the introduction of a Constitutional Court. However, it is not possible to completely reject either position. It is therefore necessary to design a system which most closely conforms to arguments of both sides.
 

4. An Available Option

>> Having considered this matter, I would like to propose a revision of the laws concerning the judiciary which would not require a Constitutional amendment. My proposals can be outlined as follows: [1] establish within the Supreme Court a "Constitutional Department of the Supreme Court" to deal exclusively with constitutional matters; [2] Constitutional judges would be appointed by the Cabinet on the recommendation of a "Judiciary Appointments Committee;" and, [3] the following procedures would come into force if a law being applied to a specific case is judged to be unconstitutional by a general court: court proceedings would be suspended and transferred to the "Constitutional Department of the Supreme Court" which would then examine the constitutionality of the law, after first having determined whether the law in question is of material importance to the specific case in question.


Main points of questions put to Prof. HATAJIRI

IMAMURA Masahiro (Liberal Democratic Party)

>> Article 41 of the Constitution states that the Diet is the highest organ of state power. What is your understanding of the relation between the Diet and the judiciary?

>> When a law is judged to be unconstitutional, you have suggested that the case should be transferred from the lower courts to what you have called the "Constitutional Department of the Supreme Court." What would be the procedures for making this transfer? In your opinion, would the judiciary review of treaties also be referred to the "Constitutional Department of the Supreme Court?"

>> It is said that the German Constitutional Court functions to sustain the federal system by coordinating the powers and authority of individual states. Since Japan does not have a federal system, what purpose would be served by creating a Constitutional Court?

>> Germany has amended its Constitution more than forty times. Can this be attributed to the existence of a Constitutional Court and its frequent decisions on unconstitutionality?
 

NAKAMURA Tetsuji (Democratic Party of Japan and Club of Independents)

>> I believe that enactment of your proposal is worthy of being considered. However, the primary authority to interpret the Constitution lies with the legislature which represents the people. It seems obvious to me that laws enacted by the Diet are based on the presumption of constitutionality. What is your view on this matter?

>> I believe there is a need to disclose to the public the transfer of a case from the lower courts to the "Constitutional Department of the Supreme Court." What is your view on this matter?

>> Article 76 paragraph 3 of the Constitution provides for the independence of all judges. In fact, however, it appears that sometimes judges avoid declaring a law unconstitutional because they fear the impact of such a decision on their personal evaluation. Furthermore, it seems that lower courts find it very difficult to pass judgments that differ from that of the Supreme Court. How would these matters be affected by the introduction of the system that you have proposed?

>> In your proposal, constitutional judges would be appointed by the Cabinet on the recommendation of a "Judiciary Appointments Committee." Specifically, what form would such a committee take?
 

OTA Akihiro (New Komeito)

>> You have mentioned that there has been considerable criticism of the passive nature of the existing process of constitutional review. Nevertheless, there has been a considerable number of cases during the more than 50 years that we have had the Constitution. Therefore, even if a Constitutional Court is created, is it not true that the need for decisions on constitutionality is actually quite limited?

>> The German Constitutional Court was created to check the powers of the legislature in light of Germany's historical experience whereby the Constitution was weakened and impaired by the Nazi regime. Do you think it really necessary for countries like Japan and the United States to have a Constitutional Court, when they have appropriate systems for checks and balances among the three powers?

>> You have advocated the creation of a "Constitutional Department of the Supreme Court." Is this in response to criticisms that court cases take too long to complete, and that there is a need to create a system through which the judiciary is brought face to face with constitutional issues?

>> Concerning differences in the weight of individual votes in elections, in your opinion, what is the maximum tolerable differential?
 

TSUZUKI Yuzuru (Liberal Party)

>> Court cases are increasingly taking a long time. Suppose something is judged to be unconstitutional, such as the allocation of Diet seats. What would be the impact of such a judgment?

>> In certain instances, the Supreme Court has avoided making judgments on constitutional matters on the basis of the theory that such actions are an "act of state." If the Constitutional Court avoids judgments on constitutional matters for the same reason, what difference would the creation of a Constitutional Court make?

>> The creation of a "Constitutional Department of the Supreme Court" may undermine Article 76 paragraph 2 of the Constitution which forbids the establishment of any extraordinary tribunal. What is your view on this matter?

>> In your opinion, how should judges be appointed to the "Constitutional Department of the Supreme Court?" What do you think of the idea of empowering the "Constitutional Department of the Supreme Court" to act also as a court handling administrative matters?
 

YAMAGUCHI Tomio (Japanese Communist Party)

>> The old Meiji Constitution did not contain provisions for constitutional review. I believe that this provision was included in the present Constitution as part and parcel of the incorporation of the basic principles of peace and democracy in the Constitution. How was the issue of judiciary review considered in the process of formulating and adopting the present Constitution?

>> In the Naganuma Case, the constitutional issue was defined by lower court rulings of unconstitutionality. I believe the values incorporated in the Constitution were realized through a process in which rulings of unconstitutionality were accumulated. What is your evaluation of this matter?

>> You have advocated creating a "Judiciary Appointments Committee" that would play a role in the selection of the judges serving in the "Constitutional Department of the Supreme Court." Am I correct to assume that the purpose of this Committee is to ensure fairness and neutrality in the appointment of judges?

>> What are some of the constitutional issues that must be considered in connection with your proposal for creating a "Constitutional Department of the Supreme Court?"
 

KANEKO Tetsuo (Social Democratic Party)

>> It has been said that the judiciary has remained very passive and is suffering from "blockage" in the exercise of its right to constitutional review. What problems exist within the current system that have led to this situation?

>> What is your opinion concerning problems in the current system for the appointment of judges?

>> It seems to me that countries which have adopted Constitutional Courts have been able to create a keener awareness of constitutional issues among the public through a system for constitutional complaint. What do you think of including a system for constitutional complaint in your proposal?
 

MATSUNAMI Kenshiro (Conservative Party)

>> Concerning the problem of the apportionment of Diet seats: If the courts rule the current apportionment to be unconstitutional, and if the House of Representatives is dissolved before the unconstitutional apportionment of seats has been rectified, we are led into a situation in which people will be casting their ballots in an unconstitutional situation. What is your view on this matter?

>> Do you not think that a Constitutional Court should be created through a constitutional amendment?

>> Concerning the establishment of a Constitutional Court as included in the Yomiuri Shimbun's proposals for constitutional reform published in 1994, I believe that the Yomiuri proposal contains many problems pertaining to such issues as the appointment of judges and the procedural requirements for filing suit for constitutional complaint. What is your evaluation of these points?
 

UDAGAWA Yoshio (21st Century Club)

>> Let us assume that Japan did in fact have a Constitutional Court during the past fifty years. How many cases do you think would have been brought before the Constitutional Court during this period?

>> In the context of your proposals, what would be the relation between the existing courts and the "Constitutional Department of the Supreme Court?"

>> In my opinion, from the perspective of providing speedy and appropriate human rights protection, we need to enact revisions to ensure the appropriate exercise of the right of constitutional review. What views do people in the academic world hold on this matter?