Subcommittee on Guarantee of Fundamental Human Rights (Third Meeting)

Thursday, April 11, 2002

Meeting Agenda

Matters concerning the guarantee of fundamental human rights

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

Informant

Members who put questions to Prof. SAKAMOTO

Main points of Prof. SAKAMOTO's statement

Introduction

>> I will present my views from a position based on classical liberalism in the tradition of Adam Smith and F.A. von Hayek, among others.

>> The constitution is addressed to the state; it is not a norm of conduct for the citizenry.

1. The meaning of "human rights"

(a) A human right is a public right, which is not necessarily enforced by the courts.
>> A human right is a public right, which differs from a private right in that it is not necessarily enforced by the courts. Also, as a right, it should be a claim of an interest founded on a just basis (a just claim).

(b) The distinctions "state/civil society" and "public sphere/private sphere" underpin modern constitutionalism.
>> In modern constitutionalism, there is a strict separation between public law, which governs the public sphere, and private law, which governs the private sphere. Since the start of the twentieth century, the sharp distinction between public and private law has sometimes been disputed against the background of the doctrine of the social state, but the two should be clearly separated, and issues concerning private persons should be dealt with by private law.

>> The guarantee of civil liberties in the public sphere (the right to complain of governmental nonfeasance or to claim relief against nuisance from the state: freedom from the state) forms the nucleus of human rights. Freedoms exercised toward the state (e.g., the franchise) and freedoms provided by the state (e.g., social rights) are not human rights in the true sense.

2. The types of "fundamental human rights" referred to in Chapter III of the Constitution

(a) "Social rights" were incorporated in the constitutional code under the influence of the German doctrine of the "social constitutional state."
>> Under the influence of German jurisprudence, a four-part classification of fundamental human rights has gained acceptance in Japan. The four types of right are: civil liberties, beneficiary rights, the franchise, and social rights. This classification is not logical, however, as shown by the fact that civil liberties and social rights are inherently irreconcilable. It also omits many human rights and leaves the status of the "new human rights" unclear.

(b) Chapter III simply lists typical examples of fundamental rights, while also attempting to guarantee other fundamental benefits and protections of the law.
>> Unlisted fundamental benefits and protections of the law are understood to have been guaranteed initially as "unnamed rights," eventually becoming individually named "new human rights" through a process of social and economic change. In most cases, the textual basis for these rights is sought in the "right to the pursuit of happiness" stipulated in Article 13 of the Constitution.

3. Interpretation of the "right to the pursuit of happiness" in Article 13

>> The accepted view and judicial decisions are based on the "theory of a general guarantee of personal interests," which holds that only those legal benefits and protections that are essential to personal existence are guaranteed in the form of a right to the pursuit of happiness. But human rights are not guaranteed because human beings have personhood; instead, the relevant theory is that of "general freedom of action," which holds that people should have the general freedom to choose their actions in particular situations.

4. "New human rights"

>> As examples of "new human rights," we can cite: (i) the right of privacy; (ii) the right to control the use of one's image; (iii) the right of self-determination (personal autonomy); (iv) the right to one's name, or the right to maintain one's name; (v) environmental rights; and (vi) the right to know. It is possible to address each of these either (a) by legal disposition under private law, or (b) by enacting laws prescribing duties of the state. Thus, there is no great necessity to make these "fundamental human rights."

5. Points to be borne in mind in explicitly including "new human rights" in the constitutional code

>> If the state intervenes and seeks constitutional solutions for issues that could be left to private autonomy or spontaneous market transactions, it risks "human rights inflation," excessive government, and the statalization of society.

>> If a matter can be dealt with legally based on private rights or private law, it is hardly necessary to claim that what is at issue is a fundamental human right. Where such handling is not possible, the first priority should be to resolve the issue by enacting the necessary law.

>> For a "new human right" to be guaranteed in the Constitution, the following conditions are necessary: (a) it should have a high degree of precedence; (b) its denotation and connotations should be clear; (c) it should not improperly restrict the constitutional freedoms of other parties; (d) the other parties should be identifiable; (e) the scope of the other parties' obligations should be clear.

>> For example, provisions for "environmental rights" should go no further than stipulating the duties of the state. We should be wary of establishing as a right something whose substance remains unclear, like "environmental rights."

Main points of questions and comments to Prof. SAKAMOTO

ISHIBA Shigeru (Liberal Democratic Party)

>> It seems to me that the concept of the right of the state to defend itself is unclear; there is no institution that guarantees it, and, according to the government's interpretation, Japan possesses but cannot exercise the right of collective self-defense. What should we understand by the right of the state to defend itself?

>> The Constitution of Japan was influenced by the Bill of Rights, the French Declaration of Human Rights, and the United States Constitution. The idea behind each of these is that human beings possess human rights by virtue of their humanity (the doctrine of natural law), but is this appropriate?


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

>> You advocate that in order to introduce the principle of competition into the field of education, we should create a voucher system, in which vouchers for the purchase of educational services are issued to the public and students use them to attend the school of their choice. What do you see as the ideal form of the education system?

>> The international community today operates under global standards whose direction is set by the major powers. Under these conditions, is there not a risk that the Japanese Constitution, influenced by global standards, will no longer reflect our own history and culture?


OTA Akihiro (New Komeito)

>> You take the position that we must be wary about recognizing the so-called "new human rights" as rights under the Constitution. At present, is there anything that, in your view, should be made a "new human right"?

>> As I understand it, the Constitution of Japan has mutually incompatible aspects, having grafted together European modernity and Japanese tradition. Your position that the source of human rights should not be sought in natural rights seems to disagree with the approach of the Constitution, but should this be regarded as an example of the defects in the Constitution?

>> I believe that the environment connects us with one another, and that it is important to foster a sense of oneness with the environment. You argue that we should not make provision for environmental matters as "environmental rights," but is it not necessary to express the importance of the environment in the Preamble of the Constitution?


TAKEYAMA Yuriko (Liberal Party)

>> Properly speaking, "equality" means equality of opportunity, but the public mistakenly believes that it also means equality of results. How did this situation arise?

>> There have been recent incidents at public school graduation ceremonies where, as an assertion of their human rights, music teachers have refused to play the piano to accompany the singing of the national anthem. How do you evaluate this from the viewpoint of the relationship between human rights, the state, and civil society?

>> The importance of the "right to know" is often cited. I believe there is a need not only for a right to know on the part of the public, but also for a duty on the part of the state to make information available. What is your view in this regard?


HARUNA Naoaki (Japanese Communist Party)

>> What do you think are the special characteristics of the human rights provisions in the Japanese Constitution compared with those of the other Group of Seven countries?

>> Article 13 was once considered a general declaration, but since the 1960s it has come to be considered a guarantee of specific rights. What do you see as the background to this development?

>> I believe that the intent of Articles 13 and 25 has been given concrete embodiment in environmental rights through the efforts of citizens' movements. How are such citizens' movements evaluated in the academic world?

>> As one example of a clash between the Constitution and the law, I believe that the Communications Interception Law which came into force in August 2000 is inconsistent with certain provisions of the Constitution, especially Articles 21 and 35. What debate has there been among scholars in this regard?


HARA Yoko (Social Democratic Party)

>> The rights of the people should be provided for concretely by specific laws. For example, even if "environmental rights" were provided for in the Constitution, I think this would be meaningless unless the provisions were made concrete by enacting laws. What is your view in this regard?

>> Recently, it seems, information disclosure has come to include information related to personal privacy, but I believe that the contents of the right to privacy can vary depending on the circumstances. In your view, what are the contents of the right to privacy that should be guaranteed in the modern era?

>> Some people oppose the introduction of a system allowing married couples to use separate surnames, but I think that the right to choose one's surname is included in human rights under the Constitution. Also, I think that not allowing its introduction would hold back the creation of a diverse society. What are your views with regard to the introduction of such a system?


INOUE Kiichi (New Conservative Party)

>> Did you arrive at your classical liberalism as a philosophy of life or from your viewpoint as a scholar?

>> A bill concerning the protection of personal information is currently under consideration, and the relationship between the state and the media has become an issue. To what extent do you think the state should be allowed to regulate the media?

>> If we were to revise Chapter III of the Constitution, what revisions do you think would be desirable?


TSUCHIYA Shinako (Liberal Democratic Party)

>> The phenomenon of elementary and middle school students refusing to go to school or withdrawing from all contact with the outside world has become a social problem. I believe that we should revise the law to recognize independent "free schools" within the compulsory education system. What is your view of this?

>> With regard to your position that rights and other protections not provided for in the Constitution should be left primarily to disposition under private law, is this not tantamount to the exercise of legislative power by the judiciary, since accumulated judicial decisions establish norms?


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

>> You said that at present there are no rights that should be guaranteed in the Constitution as "new human rights," but do you think that no rights that should be so recognized will emerge in the future?

>> What is your view of the human rights issues involved in a case like that of the Jehovah's Witness who sued a hospital for giving her an unwanted blood transfusion, that is, a situation where the patient's right of self-determination and the doctors' duty or mission are in conflict?

>> As one form of the right of self-determination, is there a recognized "freedom to commit suicide"?

>> I think that, even without specific provisions in law, it is possible to exercise rights in such areas as requiring that incorrect information about oneself be corrected. Do you agree?


HIRAI Takuya (Liberal Democratic Party)

>> It is sometimes claimed that society today is a "society without norms," and that in order to restore society's norm consciousness in various areas, duties should be prescribed in the Constitution. What do you think of prescribing duties in the Constitution?

>> Do you think that the Constitution's human rights provisions are functioning effectively in terms of guaranteeing human rights against the "quasi-authority" of business corporations, the media, and so on?

>> Among the constitutions of other countries, many of the newer ones include "environmental rights" or "provisions concerning the environment." What is your view of this?

>> The concept of "justice" can become a behavioral norm of the state, as seen in the American military action in Afghanistan after the terrorist attacks. Depending on how it is used, it could become an all-powerful norm. What are your views with regard to "justice" becoming a behavioral norm?


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

HANASHI Nobuyuki (Liberal Democratic Party)

>> Recently, the proposed introduction of a system allowing spouses to use different surnames has been the subject of lively debate. A married couple's use of the same surname is a traditional institution nurtured in the course of Japan's long history, and in my view it should be preserved in the future because it forms the foundation of the family, which is a unit of society. Also, I believe that the use of separate surnames would lead to social disorder. I would like to hear the views of other members on the separate surname system.

TSUCHIYA Shinako (Liberal Democratic Party)

>> Not being able to use one's maiden name after marriage can have disadvantages both in Japan and overseas. Also, although allowing the use of separate surnames may benefit only a very small number of people, I believe that it should be introduced, even if it is only for the sake of a small minority.

> HARA Yoko (Social Democratic Party)

>> I do not say that married couples should use the same name, nor that they should use different names; I think either is acceptable. The important thing is that people should have a choice. Ideas about the family have changed over time. Some people oppose the use of separate surnames because they fear a breakdown of the family, but, as third parties, the breakdown of the family is none of their concern.


HANASHI Nobuyuki (Liberal Democratic Party)

>> I fear that the use of separate surnames might add to the disarray of Japanese society. In thinking about Japan in the twenty-first century, when the younger generation will play the central role, I am concerned lest this lead to a breakdown of society, because the family is the basis of human life.


HARA Yoko (Social Democratic Party)

>> There is a strong acceptance of the use of separate surnames among the younger generation. I would like older people to be aware of what the younger generation thinks.


TAKEYAMA Yuriko (Liberal Party)

>> It is the children who will have problems if the surnames of both spouses are not decided properly. We need to determine the basic principles clearly, referring to the examples of other countries.


NAKAYAMA Taro, Chairman of the Research Commission

>> Since children do not have the right to decide their own surname, we need to take their viewpoint in considering the system for the surnames of married couples. Depending on the system, a situation could arise where parents and children have different surnames. Among other things, we should also consider giving children the right to choose their surname.


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

>> If parents and children having different surnames is a problem, all we need to do is give the children the right to choose their surname. Also, it is wrong to reject the use of separate surnames on the grounds that only a minority wants it. It is the duty of the National Diet to pay attention to minority opinions.


HARUNA Naoaki (Japanese Communist Party)

>> The introduction of the separate surname system derives from the maturing and development of democracy.

>> "New human rights" have been recognized due to the people's efforts to realize the ideals of the Constitution. It is not necessary to stipulate them explicitly, because it is the intent of the present Constitution to guarantee human rights that are not explicitly stipulated by means of Article 13's "right to pursue happiness." What is needed in future is efforts to put the "new human rights" into practice.