Subcommittee on Guarantee of Fundamental Human Rights (Fourth Meeting)

Thursday, May 23, 2002

Meeting Agenda

Matters concerning the guarantee of fundamental human rights

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

Informant:

Members who put questions to Mr. ITO

Main points of Mr. ITO's statement

1. Are the constitutional provisions for fundamental human rights sufficient as they currently stand?

(1) Standard interpretations and prototypes of provisions of "natural rights"

>> Fundamental human rights are inalienable rights that all individuals are born with as a matter of course, and constitute natural rights which precede the State. Prototypical statements of such "natural rights" are found in such documents as the Virginia Declaration of Rights, the U.S. Declaration of Independence, and the French Declaration of Human Rights.

(2) View of the individual on which "natural rights" are based

>> In my opinion, the concept of "natural rights" is premised on the concept of "humanity under God." This connotes an awareness of an "obligation to God." In fact, the provisions originally adopted by various countries contained the principle of "rights based on the presupposition of obligations."

>> In comparison, the Japanese Constitution presupposes an "abstract individual" which denies the existence of a communal background. What is missing here is the perspective that "individuals may commit acts of evil." Also missing is the argument of "self-regulation." However, thus far, these matters have not been discussed at all.

(3) Understanding of "rights" in historical context

>> In Britain, there is an experiential conception of rights that has evolved through the historical development of the State. This conception stands in conflict with the Lockean concept of "natural rights." What we see in the American Revolution is not so much the influence of "natural rights," but rather the influence of a positivist view of rights derived from the traditional conception of the "rights of British subjects."

(4) Should the Japanese Constitution be understood to provide for "natural rights"?

>> For the following reasons, I believe the Japanese Constitution does not provide for "natural rights:" (a) Chapter III prescribes the rights and duties of the people, and not of the individual; (b) Article 12 refers to the "freedoms and rights guaranteed to the people by this Constitution," whereby it can be interpreted that such rights are guaranteed only through the existence of the State and the Constitution; (c) the Constitution prescribes social rights and other rights that presuppose the existence of the State.

(5) How should "rights" be viewed ?

>> Leaving aside the theory of "natural rights," the question of "rights" should be viewed as follows. "Rights" are gradually generated in the context of a community's history, culture and traditions, and are ultimately confirmed in a constitution. In the background, there exists a "spirit of the law" which is unique to the community.

>> For the preservation of "rights," there is a need to establish a practical regime of "laws and systems."

2. Regarding the limits of rights

(1) Limits rooted in the nature of "rights"

>> Because individuals "live and co-exist with others in the community," it inevitably follows that "rights" give rise to certain requirement of self-regulation. Similarly, there are certain restrictions that arise from the community's own history, culture and traditions.

(2) Are the constitutional provisions for "public welfare" sufficient as they stand

>> According to standard interpretations, "public welfare" constitutes a "principle of mutual and interactive co-ordination among various human rights." In my opinion, this is a doubtful conception. If a peaceful and orderly State does not exist, it cannot be said that "rights" exist in any real sense. Hence, the many North Korean citizens seeking asylum overseas cannot be said to possess "rights."

3. Regarding the "Duties of the People"

>> No state can exist in the absence of the "duties of the people." Therefore, I believe a constitution needs to contain certain provisions concerning duties and obligations.

>> Action of the people to protect their own country is a basic principle of democracy. Therefore, the Constitution should include provisions concerning the "duty to protect the country." This "duty to protect the country" is apart from and differs from any "duty to render military service."

4. Provisions concerning specific issues

(1) Inclusion of "new rights"

>> Regarding so-called "new rights," I believe that explicit provisions concerning "rights pertaining to information" and "environmental rights" can be added to the Constitution. However, such action must follow careful consideration of the contents of these rights and the clear differentiation of the denotation and connotation of such provisions.

(2) Provisions concerning "separation of religion and state"

>> It should be confirmed that the "separation of religion and state" does not constitute an "absolute separation." Having done this, it will be necessary to clearly identify matters and actions that are prohibited under this principle. There are only a few foreign countries that have provisions for the "separation of religion and state."

(3) Inclusion of provisions concerning "respect for the family"

>> The family is the last refuge for the individual. As such, explicit provisions should be added to the Constitution concerning "respect for the family" as a measure to preserve and protect the institution of the family.

Main points of questions and comments to Mr. ITO

NAGASE Jinen (Liberal Democratic Party)

>> I feel that in Japan today, human relations have become very stiff and frigid, and there is an absence of kindness and compassion in our interactions. I believe that this is because the Constitution's principles of human rights have been abused so that there is a general tendency to reduce all social relations to the question of the rights of the people versus the obligations of the government. How should the Constitution be amended to rectify this tendency?

>> Under the current human rights provisions of the Constitution, the only relation that exists is the relation between the "powers of the state" and the "rights of the people." I feel that the principles of self-responsibility and social convention which should exist somewhere between these two have been forgotten. We should stop trying to cope with everything within the framework of constitutional rights, and should instead include the principles of self-responsibility and social convention in our interactions. What should be done to encourage this?

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

>> You have taken the position that the rights of the people exist because the state exists, and have said that the family of five North Koreans who sought asylum in the Japanese Consulate in Shenyang do not possess human rights. Even if they have fled their country, I believe that these people still have the right to seek freedom. What is your view on this point?

>> You have expressed your support for the idea that traditional communities have achieved economic development and vitality. However, community-oriented corporate and economic management has left the interests of the individual unattended. I believe that this has led to the current collapse of corporate ethics as witnessed in the Snow Brand incident where a company stands accused of fraudulent labeling of beef. What is your view on this matter?

>> You have pointed out that the principles of "theocratic politics" underlie the American democratic system, and have criticized Professor MIYAZAWA Toshiyoshi for describing the enactment of the Japanese Constitution as a transition from "theocratic politics" to "human politics." Don't you think that such comparisons of Japan and the United States constitute anachronistic attempts which do not properly take into account the differences between Japan at the end of the war and the United States today?


OTA Akihiro (New Komeito)

>> I think that, in Japan's past, the concept of "patri" (derived from "patriotism": love of one's country and love of one's place of origin) seems to have been more readily tied into nationalism and chauvinism instead of any sense of local identity, resulting in nationalistic wars. What is your view on this matter? What should be done to prevent the concepts of "patri" and "ethnicity" from becoming linked to nationalism?

>> You have stated that rights arise out of the history and traditions of a community. In your opinion, what is the essence of the culture which provides a backdrop for the Japanese community?


TAKEYAMA Yuriko (Liberal Party)

>> I agree with your argument which calls into question the Constitution's view of the individual in that it denies the existence of a communal background. I would like to ask why this problem has not been discussed in the past.

>> If we accept that the people must act to protect the country, the people's duty to protect the country takes on a critical importance. The Bill to Respond to Armed Attacks currently being debated in the Diet only contains provisions for voluntary cooperation of the people. This I believe to be insufficient. What is your view on this matter?


HARUNA Naoaki (Japanese Communist Party)

>> In my opinion, constitutional government denotes the following: "Certain powers are granted to the state in order to guarantee the human rights of the people. However, the exercise of the powers of the state are restricted in order to prevent the violation of human rights." On the other hand, you have argued that the "guarantee of human rights derives from the existence of the state." I believe these two conceptions to be completely at odds with each other. What is your view on this point?

>> You stated that Japanese history and culture were pushed aside because of Japan's defeat in the war. However, the Constitution of Japan can be viewed to be the culmination of the following: (a) The cause of freedom of speech and press which germinated in the Taisho Democracy movement bore fruit in the postwar Constitution; (b) Under the Meiji Constitution, human rights were protected only within the scope of established laws; therefore, human rights were undermined by the exercise of the powers of the State in a process that eventually led to wars of aggression. The postwar Constitution was adopted in light of these experiences. How do you respond to this interpretation?

>> The Constitution contains a total of 30 articles setting forth a wealth of provisions concerning human rights. Moreover, no restrictions are placed on these provisions. I believe there is a serious problem in that, notwithstanding this fact, these rights are not fully realized today.


UEDA Munenori (Social Democratic Party)

>> On the subject of limits placed on rights, you have stated that "certain restrictions arise from within the community." In this case, what kind of community are you referring to?

>> Discussions of the existence of a community are not particularly convincing. To make a more convincing case, would it not be necessary to consider the status and conditions of the community as well as its form?

>> You have stated that the "concept of the need to guarantee rights only arises in a peaceful and orderly State." I believe that a "peaceful and orderly State" must be premised on the real equality of the people. What is your view on this matter?


INOUE Kiichi (Conservative Party)

>> Because the Constitution was given to Japan by the Occupation Forces, the determination of whether a certain right exists or not tends to be based on whether or not such a right has been duly provided for under existing laws. It seems we have a totally different view of laws as compared with the British case where rules that were born out of the history of the community have been carried forward into the contemporary legal system. What is your view on this matter?

>> The English word "right" connotes "justice" and "power." By contrast, "kenri," the Japanese word for "right," contains the character "ken" which connotes a sense of "temporariness." Hence, it can be said that "kenri" carries the implication of a "temporary benefit" which is not absolute. The Japanese concept of rights is relativistic and different from Western conceptions. What is your view on this matter?

>> You have stated that provisions for "respect for the family" and "duty to protect the country" should be stipulated in the Constitution. Specifically, how should these provisions be worded?


ISHIBA Shigeru (Liberal Democratic Party)

>> Over-emphasis of "natural rights" as the source of human rights leads to the tendency to say that "rights are sacred and inalienable" which I find to be a strange conception. Since you have taken a negative position on "natural rights," what is your view on this matter?

>> In the event of a national emergency, the Japanese government is the only entity that can guarantee the rights of the people. From this perspective, I believe that the set of emergency laws should contain provisions for penalizing those who violate government orders to co-operate in providing transportation, medical and other services. I believe that the restriction of rights through due legal process is necessary in ensuring the rights of the people. What is your view on this matter?

>> There are those who argue that military conscription is unconstitutional in Japan as it constitutes involuntary and slave-like hard labor. My position is that any country that considers national defense as slave-like hard labor is unworthy of its name. What is your view on this matter?


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

>> The countries of the world are in a state of preparedness for war as they engage in the creation of a new international order for the distribution of the world's food and resources. This crisis mentality is absent in the Japanese people. I believe that this goes back to the unique sensibilities of the Japanese people who do not have a clear awareness of rights as in the West. What is your view on this matter?


HANASHI Nobuyuki (Liberal Democratic Party)

>> I agree with your statement that rights develop out of the community and society. Given this perspective, obligations are also important as they constitute the reverse side of rights. I believe that the prescription of obligations in the Constitution is insufficient. In your opinion, what specific obligations should be prescribed in the Constitution?

>> Constitutional rights have not been fully realized under the current political system. In view of this fact, there are those who argue that there is not need to amend the Constitution, and that the current political system should be revised to conform to the ideals of the Constitution. What is your view concerning this assertion?

>> Contemporary Japanese society is moving increasingly towards the nuclear family, while the institution of the family is collapsing. I believe that one of the reasons for this is the postwar adoption of the principle of the equal division of inheritance. What is your view on this matter?


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

NAKANO Kansei (Democratic Party of Japan and Club of Independents; Deputy Chairman)

>> A near substitute of the character "ken" which is used in "kenri" (rights) and "kenryoku" (power) is the character "jitsu." By replacing the "jitsu" as it is used in "jitsuri" (real benefit) and "jitsuryoku" (real ability) with the character "ken," we return to the terms "kenri" (rights) and "kenryoku" (power) which are then laden with social connotations. In the political world, it is desirable that "jitsuryoku" (real ability) and "kenryoku" (power) reside together.

>> To deepen the social awareness of rights and obligations, these should be prescribed in the Constitution as clearly as possible. Rights and obligations are two sides of the same coin. Viewing the ongoing destruction of the global environment, I believe that instead of considering the inclusion of environmental rights in the Constitution what we really need to do is to discuss the inclusion of obligations concerning environmental preservation.


HANASHI Nobuyuki (Liberal Democratic Party)

>> When a local Board of Education decided to select a certain history textbook, members of the selection committee were inundated with anonymous telephone calls and letters of protest. I am extremely concerned that should this form of anonymous protest spread throughout society, the expression of opinions will fade and the constitutional guarantees of the freedom of speech (Article 21) and the freedom of thought and conscience (Article 19) will be gravely undermined.


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

>> I found Mr. Ito's views on human rights to be one-sided.

>> State and religion were one in the pre-modern State, and religion served as a centripetal force in the Meiji regime. Looking back to these historical facts, I am left with doubts about Mr. Ito's definition of a view of the state and religious values.


UEDA Munenori (Social Democratic Party)

>> Under the present Constitution, there are specific instances of discrimination and the failure of the guarantee of human rights. It is very important to take care of these problems. We must pursue legislative action and government policies aimed at creating a society which eliminates discrimination of minorities and ensures equal opportunity.

>> From the perspective of equal opportunity, it is essential that we engage in a debate concerning whether the emperor system should be maintained or not.


HARUNA Naoaki (Japanese Communist Party)

>> Mr. Hanashi criticized a case in which citizens protested the selection of a history textbook. But this action is totally justified based on the freedom of speech and was an expression of the view that history textbooks must not contain falsehoods.

>> The provisions of Article 3 Paragraph 4 of the Bill to Respond to Armed Attacks will effectively restrict the rights of the people in a national emergency. The government argument that such restrictions are in accord with "public welfare" as prescribed under Article 13 of the Constitution and are therefore constitutional is erroneous on the following three counts. (a) "Public welfare" as prescribed under Article 13 does not posit that the values of the State should take precedence over the rights of the individual. (b) The government has argued that the Disaster Measures Basic Law is an example of an existing law wherein the rights of the people are subject to certain restrictions under the Article 13 provision of "public welfare." The fact is that the government had previously adopted the interpretation that these restrictions were justified based on "public welfare" as prescribed under Article 29 (right of economic freedom). (c) "Public welfare" for military purposes cannot be justified under the Constitution's commitment to peace.

>HANASHI Nobuyuki (Liberal Democratic Party)

>> While the Constitution protects the freedom of speech, expressions of protest and opinion should not be made through anonymous telephone calls and letters. Rather, persons making such protests should give their names and accept responsibility.