Subcommittee on Guarantee of Fundamental Human Rights (First Meeting)

Thursday, February 14, 2002

Meeting Agenda

Matters concerning the guarantee of fundamental human rights

After a statement was heard from Prof. MUNESUE Toshiyuki concerning the above matters, questions were put to him; this was followed by discussion among the members.

Informant

Members who put questions to Prof. MUNESUE

Main points of Prof. MUNESUE's statement

1. General characteristics of the guarantee of human rights in the Constitution of Japan (interpretation and application)

>> The existing Constitution combines the ideals of classical Western liberalism with provisions on social rights characteristic of the twentieth century, and it therefore contains contradictions that arise between these two.

>> Where economic freedoms are concerned, economic policies have featured active government regulation instead of laissez-faire, and this has been accepted by the courts and by scholars.

>> Where spiritual freedoms are concerned, the Constitution has regarded these not in terms of civil liberties, but as something close to self-will whose existence predates the nation-state.

2. The "limits" of a constitution based on classical liberalism

a. Negative freedoms
>> The existing Constitution is founded on negative freedoms, or "freedom from the State." In modern society, however, freedoms cannot be secured substantially by means of laissez-faire alone.

b. Non-international character
>> The existing Constitution's guarantee of human rights is inward-looking, adopting the schema "the State versus the people."

c. Failure to address relationships between private persons
>> The existing Constitution is concerned only with eliminating human rights violations by the State against individuals. In relationships between private persons, e.g., between two individuals, or an employee and a company, the guarantee of human rights depends on law and civil suits.

3. Divergence from the Constitution's classical liberalism in its application

a. Economic freedoms
>> The existing Constitution takes as its ideal the condition of the free and self-determining individual postulated by liberalism, but during and after the era of rapid economic growth, economic freedoms were subject to active government regulation, and this was accepted by the courts and by scholars. As a result, there developed a climate of tolerance toward facile regulation of economic freedoms, and the liberalism which was the original intent of the Constitution has never been realized.

b. Spiritual freedoms
>> The people, on whom democracy depends, should fully exercise such spiritual freedoms as the freedom of expression in their capacity as citizens, but there has been a tendency in the past to see only a weak correlation between spiritual freedoms and democracy. Also, the right of privacy should be seen as fundamental to spiritual freedoms, and not as antagonistic to the freedom of expression.

4. Issues concerning the Constitution of Japan (interpretation)

a. The need for positive freedoms as ideals
>> In modern society, the classical negative freedoms are not enough by themselves to guarantee human rights. There is a need for "freedoms provided by the State," that is, for the State to actively guarantee certain freedoms, e.g., by putting infrastructure in place to guarantee the right of Internet access.

b. A shift from viewing State power as inherently bad to ensuring rationality of the system
>> The judiciary should stop thinking in terms of "the fewer restraints on human rights, the better"; instead, it should take the standpoint of guaranteeing the rational design of the system (the rationality of policy goals) and should exercise control over the Diet's legislative discretion.

c. The need for compound human-rights ideals as a means to ensure respect for individual dignity
>> We need to develop a modern, compound concept of human rights that transcends the classical categories. Examples that could be cited include the right to Internet access, environmental rights, and the right to seek public disclosure of information (the right to know).

d. The need for liaison between international and domestic guarantees of human rights
>> There is a need to ensure liaison between international and domestic guarantees of human rights, and to incorporate the guarantees of the International Covenants on Human Rights and related agreements into domestic law. In so doing, we should make explicit provision for protection of the socially disadvantaged in the Constitution, thereby applying a brake to excessive internationalization in the human rights sphere.

e. The need for human rights provisions applicable to human rights disputes between private persons
>> There is a need for human rights provisions that apply not only to the relationship between the State and the people, but also to relationships between private persons. In addition, we should widen our field of view to include not just the dualistic, vertical relationship between the State and the people, but also the three-sided relationship of the State, civil society, and the individual.

Main points of questions and comments to Prof. MUNESUE

MATSUSHIMA Midori (Liberal Democratic Party)

>> Viewing the Constitution's human rights provisions from the perspective of women in the family, it seems to me that there is a problem in the existing system of inheritance, where a woman who takes care of an ailing mother- or father-in-law for many years is not entitled to any share of that person's estate. Would you agree?

>> What is your view of the relationship between the news media and privacy protection, and of the present situation in which the human rights of victims receive less consideration than those of perpetrators?

>> What was the reason for the government's implementation of economic controls such as production adjustment in the postwar period? It seems to me that it was not done from the viewpoint of protecting the weak. Would you agree with this?

OIDE Akira (Democratic Party of Japan and Club of Independents)

>> With regard to the reason for implementation of economic controls by the bureaucracy in the postwar period, was it not because individualism did not take root in this country?

>> At a time when the very survival of the global environment is threatened, is there not a need for a global environmental viewpoint in our constitutional debate?

>> Do you agree that the Constitution has not functioned adequately in eliminating discrimination? Also, what are your views regarding "affirmative action"?

>> You advocate that the ideal form of the three-way relationship between the State, civil society, and the individual should be stipulated in the Constitution, but what is meant in this case by the concept "civil society"?

OTA Akihiro (New Komeito)

>> I suggest that the modern European view of humanity on which the Constitution is based, in which the dignity of the individual is central, is not consistent with the traditional Japanese view, whose main influences are Confucianism and Buddhism, and which sees human beings as bound by ties to the community, to history, to the family, and so on. Would you agree with this?

>> Is it possible to establish concrete standards to reconcile opposites such as privacy protection and freedom of the press?

TAKEYAMA Yuriko (Liberal Party)

>> Why have the original ideals of the Constitution with regard to economic freedoms not been widely accepted? Also, why has active bureaucratic regulation, which conflicts with those ideals, been regarded positively?

>> What kind of constitution do you think is appropriate? What do you think of an approach that would include the good old Japanese traditions, would make personal responsibility and self-determination a corollary of economic freedoms, and would also incorporate information disclosure, environmental rights, and so on?

>> What do you think of conducting deliberations on the future of the Constitution, not on the basis of the existing Constitution, but with a clean slate?

HARUNA Naoaki (Japanese Communist Party)

>> I believe that the things we are trying to protect by means of the so-called "new human rights," such as environmental rights and the right to privacy, are basic values that are already guaranteed by the Constitution in the form of the dignity of the individual, and that what matters is not how we express them in the text but how we protect them. Do you agree with this?

>> I agree that, in guaranteeing human rights, not only "freedom from the State" but also "freedoms provided by the State" are necessary, and from that viewpoint I believe that State regulation and intervention may be necessary in, for example, cases of human rights violations against company employees, rather than leaving such cases to be settled between labor and management. What is your view of this?

>> What is your response to the fact that, although the contents of the International Covenants on Human Rights have been incorporated into the present Constitution, the United Nations has stated that they have not been given concrete form in its application?

KANEKO Tetsuo (Social Democratic Party)

>> I believe that the main aim of the guarantee of fundamental human rights is State protection for the freedom of the individual, and that, in establishing this, we should give central consideration to protecting the socially disadvantaged by, among other means, guaranteeing social rights. Do you agree with this?

>> Recently, I think there is a tendency to emphasize the viewpoint of the public welfare in relation to the guarantee of human rights. What is your view in this regard?

INOUE Kiichi (New Conservative Party)

>> I believe that there are inherent limits to fundamental human rights. Would you agree with this? Also, would it be correct to say that, judging by the fact that the content of the "public welfare" is defined by legislative measures in the Diet, it is the will of the Diet that determines what constitutes the public welfare?

>> If the Constitution is revised, what new provisions should be made regarding fundamental human rights?

KONDO Motohiko (Liberal Democratic Party)

>> You expressed the view that the ideal form of the three-sided relationship between the State, civil society, and the individual should be stipulated in the Constitution, but could you explain the specific contents of "civil society" in this instance?

>> You commented that Japan has had an "invisible constitution," but did you mean that the Constitution of Japan was being applied in ways unrelated to its original intent, or that there were two separate constitutions, one expressing actual intentions and the other the official position?

KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> You take a positive view of direct democracy in national government, but on what basis do you think the people make decisions in, for example, a national referendum?

>> In light of my past experience working in the mass media, I fear that, even though the people base their political judgments on media coverage, the media today put entertainment first in their reporting and do not always convey the facts accurately. As an advocate of the introduction of direct democracy, how do you evaluate this situation?

Main points of comments made by members of the Subcommittee (in order of presentation)

NAKAYAMA Taro, Chairman of the Research Commission (Liberal Democratic Party)

>> Recently, there has been a great deal of conflict within families. In creating a new constitution, how should we view the ideal form of the family and the individual?

> MATSUSHIMA Midori (Liberal Democratic Party)

>> The beauty of traditional family customs is invoked to justify, for example, expecting a person to look after an elderly parent without reward. I believe that we should seek economic rationality rather than "beautiful family customs," and that a system where those who did none of the hard work inherit equally is a system that does not reward effort.

> NAKAYAMA Taro, Chairman of the Research Commission (Liberal Democratic Party)

>> I think that when it is a question of seeking economic rationality in inheritance, wills become important. What is your view of this?

> MATSUSHIMA Midori (Liberal Democratic Party)

>> I think that a system centered on gifts made during one's lifetime would be more reliable than one centered on wills.

HARUNA Naoaki (Japanese Communist Party)

>> Some people argue that the so-called "new human rights" should be explicitly provided for in the text, but Article 97 of the present Constitution calls on this and future generatios to hold and develop fundamental human rights fully through flexible interpretation of Article 13, Article 25, and similar provisions, even in relation to matters that were not foreseen when the Constitution was enacted.

KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> If the Constitution is not revised, which articles would guarantee the human rights of foreign nationals?

> HARUNA Naoaki (Japanese Communist Party)

>> Even in the absence of provisions that directly stipulate those rights, I believe it is possible to guarantee them by interpretation and application.

KANEKO Tetsuo (Social Democratic Party)

>> I believe that the human rights provided for in the Constitution are merely the minimum that should be guaranteed, and that this can be extended by means of laws. Environmental rights could have been guaranteed by law, but the lawmakers neglected to do so. It is wrong to call this a defect of the Constitution.


MOTEGI Toshimitsu (Liberal Democratic Party)

>> In view of the destructive effect that rapid scientific and technological development has had on the environment, there is a need to give thought to the Constitution in keeping with the changing times.

>> There is a need to think about not only the relationship between the State and the individual, but also that of the individual within the family.

MATSUSHIMA Midori (Liberal Democratic Party)

>> I believe that we must eliminate anomalies in the existing system such as the situations that arise where, even though registration of a marriage between a Japanese and a foreign national is accepted, the foreign spouse cannot enter the country.



KOBAYASHI Kenji (Democratic Party of Japan and Club of Independents)

>> It is only proper that the State guarantees human rights, but it should also be recognized as only proper that the people protect the nation and the earth.



OIDE Akira (Democratic Party of Japan and Club of Independents)

>> The Constitution's ideal of individualism has remained unrealized for many years, but I think it would be appropriate to interpret the Constitution in such a way as to return to its original intent and thus, for example, to allow the optional use of separate surnames by married couples, and also dual citizenship.



HANASHI Nobuyuki (Liberal Democratic Party)

>> Environmental problems are not just domestic but global in scale. In my view, one reason why we should establish explicit environmental provisions in the Constitution is that this would enable Japan to provide global leadership on environmental issues.

>> I think there is also a need to discuss the ideal form of the family.