Subcommittee on Guarantee of Fundamental Human Rights (First Meeting)

Thursday, February 13, 2003

Meeting Agenda

Matters relating to the guarantee of fundamental human rights (the right to receive an education)

After statements were heard from Mr. TORII Yasuhiko and Prof. OKAMURA Ryoji concerning the above matters, questions were put to them; this was followed by free discussion among the members.

Informant

  • TORII Yasuhiko, Executive Advisor for Academic Affairs, Keio University, and President of the Promotion and Mutual Aid Corporation for Private Schools of Japan
  • OKAMURA Ryoji, Professor, Waseda University

Members who put questions to Mr. TORII and Prof. OKAMURA

Main points of Mr. TORII's statement

1. On the right to receive an education

>> MORI Arinori, the Meiji Period statesman who was the first Minister of Education, used the word kyoiku (composed of the characters "to teach" and "to rear") to translate the English word "education." The Meiji Period writer and educator FUKUZAWA Yukichi believed that "education" should also carry the nuance of "development of abilities." I think that this latter aspect is particularly important as we consider the future of education in Japan.

>> Education has the following four components. As for who should provide education in the form defined below, it should be provided primarily by the home, the schools, and the community.

[1] Character formation. This consists of learning to write and speak the language well; learning customs, social norms, faith, and gratitude; developing physical strength, skills, and coordination; spiritual strength, perseverance, followership and leadership, strategic planning ability, and so on. These elements of character can only be formed through education.

[2] Imparting basic and specialized knowledge. Knowledge is also imparted through education (together with the conceptual, temporal and spatial axes that are important in exploring what one believes, one's place in the world, and how one should live).

[3] Learning and studying: learning how to learn, and support for learning. These, too, are an important component of education. Although there is no explicit provision to that effect in the Constitution, the prevailing legal interpretation is that this component is included in Article 26.

[4] Support for growth and life planning. Although this is an important component of education, there is no explicit provision for it in Japanese law.

2. On the right to receive an education under the Meiji Constitution

>> Although Chapter II of the Meiji Constitution, "Rights and Duties of Subjects," did not stipulate the right to receive an education, this does not mean that the importance of education was underrated; on the contrary, it was ranked as one of the three great duties of the people. However, this was done not by an exercise of legislative power in which the Diet participated, but by the issue of Imperial ordinances such as the Elementary School Order, which were an exercise of the executive power of the Emperor.

3. On the right to education under the new Constitution

>> With the enactment of the new Constitution, for the first time the right to education was situated in the constitutional text itself (and subsequently in the Fundamental Law on Education). There is almost unanimous agreement among scholars that the right to education constitutes a social right that is essential if people are to lead fully human lives.

>> However, scholars disagree as to the origin of the right to education. There are three opposing schools of thought: [1] the classical and most widely accepted view, known as the "right to live" doctrine or the economic rights doctrine; [2] the doctrine of the right to claim the contents of education (education as a right inherent in popular sovereignty); [3] the doctrine of the right to learn.

4. On the phrase "correspondent to their ability"

>> Constitutional scholars and educators also hold a number of different theories with regard to the phrase "correspondent to their ability" in Article 26. How individual aptitude is treated in law is a question that I think will take on increasing importance in future.

5. The right to education and the right to learn in other countries

>> Britain's Education Act of 1980 (which formed part of the Thatcher reforms), France's Jospin Act of 1989, and South Korea's Basic Education Act of 1997 all stipulate that the individual possesses the right to receive an education and the right to lifelong learning. This is an important point.

Main points of Prof. OKAMURA's statement

Introduction

>> My personal experience of lecturing to university students for over 30 years has convinced me that individuals are greatly influenced by the kind of education they have received.

>> There are indeed problems in the Fundamental Law on Education, but rather than revising it hastily, it is more important to determine which of its principles have been realized and which have not.

>> The basis or grounds for human rights should not be sought in "natural law" or "morality." The correct view is that rights come into being only when the appropriate values are acquired, that they are accompanied by obligations, and that they are universally recognizable.

1. The growing extent and depth of human rights

>> The scope of human rights has grown in incremental layers, from civil liberties to social rights and the "new human rights."

>> The framework for consideration of human rights should be shifted from human rights in relation to the state to human rights in relation to society.

2. The status of fundamental human rights: The example of the "right to receive an education"

(a) What were the issues relating to the right to receive an education in Article 26 of the Constitution?
>> The Fundamental Law on Education was enacted as an independent statute based on the requirements of the Constitution, taking its authority from Article 26.

>> There are issues still remaining to be addressed in terms of actual practice, namely, equality of opportunity to receive an education, and inequality of the results.

(b) Two issues concerning the "right to receive an equal education" as a fundamental human right
>> By using the word "receive," Article 26 states the right to education in a passive way which, one suspects, may have had a negative affect on its exercise. I would like to see this reinterpreted in terms of the right to "engage in" an education.

>> It has been suggested that the intent of providing an equal education would be better expressed in the Japanese text by saying "the right to receive an equal education" instead of the present wording, "the right to receive education equally."

3. The meaning of fundamental human rights: Why protect human rights?

>> Since the aims and interests of all members of society do not coincide perfectly, to ensure that all individuals are accorded equal respect, there must be public protection against infringement of rights and against unfairness in the enforcement of the law. Further, respect for human rights means respect for all activities that make the lives of individuals more fully human.

>> If equal respect for all individuals is to be achieved, it will be done by securing the values known as human rights.

Conclusions

>> Personally, I am not absolutely opposed to revision of the Fundamental Law on Education.

>> Because the enactment of the Fundamental Law on Education was premised on the Constitution, revising the law on its own would distort its character.

>> The conclusions and the essence of the Fundamental Law on Education are to be found in its preamble.

Main points of questions and comments to Mr. TORII and Prof. OKAMURA

KURATA Masatoshi (Liberal Democratic Party)

(To both informants)

>> The Imperial Rescript on Education was allowed to stand for over a year after the enactment of the Fundamental Law on Education. However, as I understand it, the Law was enacted not to make up for deficiencies in the Rescript by providing supplementary principles, but with the intention of revoking the Rescript. Is this a correct understanding of the situation?

(To Prof. OKAMURA)

>> The legal scholar TANAKA Kotaro, who drafted the Fundamental Law on Education, suggested in his 1961 book The Theory of the Fundamental Law on Education that there are other values and virtues that have been omitted from the Law. What are your views in this regard?


MIZUSHIMA Hiroko (Democratic Party of Japan and Club of Independents)

(To both informants)

>> With regard to the problem of children who refuse to attend school, how do you view the right of these children to receive an education? >> I think that the moral decline of the Japanese is due to disregard for the rights of others. No education on respecting other people's rights has been provided. I believe that such education is necessary if we are to develop persons of high moral character; by this I mean education that makes it possible to understand human diversity, and human rights education that draws on direct experience. What are your views in this regard?

OTA Akihiro (New Komeito)

(To both informants)

>> I think that Article 26 could be expressed in a way that actively sets out the nature of education as a right. What are your views on this point?

>> Some people argue that the Fundamental Law on Education is unnecessary, and that educational guidelines could be adequately provided as part of the Cabinet's statement of administrative policies, for example. I would like to hear your views in response to this argument.

>> I believe that the Fundamental Law on Education is quasi-constitutional in nature, and that any revision of the Law should be preceded by careful study. In conducting such study, I suggest that we should adopt the perspective of ensuring that society supports children's self-realization.


TAKEYAMA Yuriko (Liberal Party)

(To Prof. OKAMURA)

>> Could you please explain: (a) the contemporary background to Prime Minister HATOYAMA Ichiro's attempt, in 1956, to revise the Fundamental Law on Education without waiting for a constitutional amendment; and (b) what exactly TANAKA Kotaro meant when he wrote, in his 1961 book, that state intervention in education should not be permitted?

(To Mr. TORII)

>> I agree completely with the four components of education that you listed, but they are sadly lacking in education today. What do you think is the reason for this?

>> As the birthrate declines and as women increasingly enter the workforce, the question has arisen of who will educate children in the home. What are your views on this point?


HARUNA Naoaki (Japanese Communist Party)

(To Mr. TORII)

>> What were the circumstances leading to adoption of the phrase "nurturing sturdy Japanese" in the interim report of the Central Council for Education? Also, why is it necessary to revise the Fundamental Law on Education?

(To Prof. OKAMURA)

>> You stated that the Fundamental Law on Education should not be revised in a way that distorts its character, but how do you view the current debate on revision of the Law?


YAMAUCHI Keiko (Social Democratic Party)

(To Mr. TORII)

>> In view of the fact that the National Commission on Educational Reform is merely a private advisory body to the Prime Minister, it is problematic that its call for revision of the Fundamental Law on Education has been taken up by the Central Council for Education, which is a public body. How do you view the relationship of tension between the Central Council for Education and the government (the parties in power at any given time)?

(To Prof. OKAMURA)

>> Do you not agree that the existing Fundamental Law on Education could serve as the basis for correcting various problems relating to education? Also, what do you think is the relationship between public education and the Fundamental Law on Education?


INOUE Kiichi (New Conservative Party)

(To Mr. TORII)

>> The Central Council for Education has listed six principles that should be incorporated in the Fundamental Law on Education, including "establishment of school education worthy of the nation's trust." Are there any other points, besides these six, that you personally feel should be studied?

(To Prof. OKAMURA)

>> While stating that you oppose hasty revision of the Fundamental Law on Education in isolation from the Constitution, you also stated that there are points in the Law that must be changed. What specific points do you think should be changed?

(To both informants)

>> It seems to me that everyone has academic subjects that they have no interest in. Why should pupils be forced to study these subjects?


NODA Seiko (Liberal Democratic Party)

(To both informants)

>> A child's "right to receive an education" is fulfilled when the state or other parties perform their corresponding duties. There are cases where a disabled child applies to attend a regular school as part of his or her compulsory education, but the Board of Education or other authority recommends enrolment in a special school or similar facility, thereby denying the child admission to a regular school against his or her wishes. In such cases, is it not true that the obligation referred to in paragraph 2 of Article 26 is not being fulfilled?


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

(To both informants)

>> The increase in juvenile crime is often cited as an education-related issue. But this is a problem common to all the developed nations, not only Japan, and the incidence of such crimes in this country is still low compared with the rest of the developed world. Should we not first examine the background factors behind this low crime rate?

(To Mr. TORII)

>> As vantage points for reviewing the Fundamental Law on Education, the interim report of the Central Council for Education proposes, among others, "encouraging awareness of and active participation in public affairs," and cultivating "identity as a Japanese, and an international perspective." But I would argue that people's awareness of and attitude toward public affairs is formed in the home and the community, and it should not be the subject of legal provisions by the educational administration defining it as a basis for education; what are your views in this regard? The proposed intrusion into the area of personal identity is even worse; surely that is a travesty of the freedom of formation of the self?

>> In its interim report, the Central Council for Education also cites, as a vantage point for review of the Fundamental Law on Education, developing each person's abilities to the maximum in accordance with his or her individual nature. I think that responsibility for the failure to achieve this lies with the Ministry of Education, Science, Sports, and Technology, because it has set equality of results as its goal. Is it not putting the cart before the horse to cite this as a justification for revising the Fundamental Law on Education?


NAGASE Jinen (Liberal Democratic Party)

(To both informants)

>> On the one hand, we are witnessing a decline in ethics, as seen in the breakdown of the family, the collapse of classroom order, and juvenile crime. On the other hand, there is an ongoing debate oriented toward expanding "the right to receive an education" by promoting, for example, education to develop individuality, and education with room to grow. I think there is a disconnect and a conflict between these two trends. With reference to the Constitution, how should we view this orientation toward expanding the "right to receive an education"?


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

HIRABAYASHI Kozo (Liberal Democratic Party)

>> It is important to bear in mind the process by which the Constitution and the Fundamental Law on Education were enacted as we proceed with future reforms of the education system.

>> In recent years, one no longer hears of people being respected as educators. The interim report of the Central Council for Education advocates improving the quality of teachers, and we must conduct an in-depth debate on the question of developing high-quality teaching professionals.

>> The interim report of the Central Council for Education discusses morality, and it is important that teachers have a strong ethical sense. Even without establishing a separate classroom subject such as "moral training," if teachers brought a sense of ethics to the teaching of their own subjects, it would have a good influence on children's growth.


HARUNA Naoaki (Japanese Communist Party)

>> The Preamble of the Constitution of Japan states "We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith." Therefore, as I understand the situation, the Imperial Rescript on Education lost its legal force with the enactment of the Constitution. However, because the Rescript remained influential even after the Constitution was enacted, the Diet adopted a resolution expressly to revoke it.

>> It distresses me to see how education today has deteriorated, but at a time like this it is more important than ever to put the ideals of the Constitution and the Fundamental Law on Education into practice. Yet actual practice is at odds with the Fundamental Law on Education in many ways. For example, while the Law calls for "formation of a well-rounded character," there is fierce competition to pass entrance exams, and while the Law proclaims "equality of educational opportunity," there are children who cannot afford to attend university. Also, there are situations in which public authority intervenes in the contents of education, in violation of Article 10 of the Fundamental Law on Education.

>> Some arguments for revising the Fundamental Law on Education introduce into public education a particular view of humanity from a strongly statist standpoint, but this will not solve any problems.


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

>> The difference between the Imperial Rescript on Education and the Fundamental Law on Education is that, whereas the Rescript expressed a spirit, the Fundamental Law became legislation. Also, I think that it became necessary for the Diet to revoke the Imperial Rescript because the moral code it represented had become obsolete after the morals and standards proper to an independent nation were embodied in the Fundamental Law on Education.

>> It is important to have a sufficient level of general education to be able to judge what is good and what is bad, and this should be written into the Fundamental Law on Education. "Respect for tradition and culture, and love of one's hometown and country" are also important.


YAMAUCHI Keiko (Social Democratic Party)

>> There were several points in Mr. TORII's comments on juvenile crime and the mother's role that I find hard to accept.

>> I believe that the Central Council for Education and this Commission are appropriate forums to take up education-related conventions, such as the Convention on the Rights of Children, and to give substance to our human rights.

>> It is a mistake to blame the Fundamental Law on Education for problems involving children. I would argue that it is more important to verify whether the Fundamental Law on Education has been put into practice.


SENGOKU Yoshito, Deputy Chairman of the Commission

>> Some critics blame the Fundamental Law on Education for the current difficulties regarding educational issues, but is it not true that the education of children is also influenced by the social pathologies of adults, such as unrestrained competition, worship of money, and the commodification of pleasure?

>> To help solve such problems, among other reasons, we need a society in which adults continue to learn. It is important to provide the facilities and conditions to enable people to learn whenever they wish, with the state, local public bodies and NPOs playing a central role.


MIZUSHIMA Hiroko (Democratic Party of Japan and Club of Independents)

>> When one looks at parents' child-rearing responsibilities, one cannot make a simple comparison between the past and the present. In the past, the community complemented the role of parents, but today, when families are smaller and community ties are weaker, parents have to raise their children in isolation. Anyone who places all the responsibility for child-rearing on the mother is ignorant of the realities.

>> Against this historical background, the amount of attention paid to children by adults other than their parents-in the community and schools, for example-is important. Children's problems are adults' problems too.

>> One must respect the view that culture and tradition are important, but, in some respects, those adults who are actually teaching culture and tradition to children are skeptical about the arguments for revising the Fundamental Law on Education.

>> The key to solving group bullying and vicious crimes by children is, as Prof. Okamura has said, for children to think for themselves and express their own opinions, and for other people to accept them.


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

>> The ongoing debate on revision of the Fundamental Law on Education is not gathering momentum at the popular level. Even though educators in the classroom are very concerned about the "crisis" affecting children, the fact is that they do not see it as having any connection to the Fundamental Law on Education.

>> In the long term, the Fundamental Law on Education may be headed for revision, but that revision will be very dangerous unless it is grounded in a debate on the Constitution and human rights.


HARUNA Naoaki (Japanese Communist Party)

>> One speaker commented that the Imperial Rescript on Education expressed a spirit, but, as seen in the words "Should any emergency arise, offer yourselves courageously to the State," the focus of that spirit was loyalty to the Emperor, which paved the way for a war of invasion, and it was for this reason that the Rescript was formally rescinded by the Diet.