Meeting Agenda
Matters concerning the guarantee of fundamental human rights (social security and the Constitution)
After statements were heard from Dr. NAKAMURA Mutsuo and Prof. OSHIO Takashi concerning the above matters, questions were put to them. This was followed by free discussion among the members.
Informants
- NAKAMURA Mutsuo, President, Hokkaido University
- OSHIO Takashi, Associate Professor, Faculty of Education, Tokyo Gakugei University
Members who put questions to Dr. NAKAMURA and Prof. OSHIO
- KURATA Masatoshi (Liberal Democratic Party)
- MIZUSHIMA Hiroko (Democratic Party of Japan and Club of Independents)
- OTA Akihiro (New Komeito)
- TAKEYAMA Yuriko (Liberal Party)
- HARUNA Naoaki (Japanese Communist Party)
- KITAGAWA Renko (Social Democratic Party)
- INOUE Kiichi (New Conservative Party)
- NODA Seiko (Liberal Democratic Party)
- SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
- TANIMOTO Tatsuya (Liberal Democratic Party)
Main points of Dr. NAKAMURA's statement
1. The enactment of the Constitution of Japan and the right to a decent standard of living
>> The provisions for a certain minimum standard of living in Article 25, paragraph 1 were not present in the SCAP draft; they were inserted at a later stage, during deliberations in the House of Representatives, at the insistence of SUZUKI Yoshio and MORITO Tatsuo. They were based on similar provisions in the "Outline of Constitution Draft" drawn up by the Constitution Investigation Association, whose members included TAKANO Iwasaburo. Thus, I wish to emphasize that the provisions on the right to a decent standard of living were an idea original to Japan.
>> In surveys of the attitudes of the Japanese conducted by the NHK Broadcasting Culture Research Institute, when asked which constitutional rights are important, the highest proportion of respondents always chooses the right to a minimum standard of living "worthy of a human being," suggesting that this right is firmly established in the national consciousness.
2. The legal character of the right to a decent standard of living
(a) The development of the programmatic provision doctrine
>> The programmatic provision doctrine holds that the right to a decent standard of living is a programmatic provision, that is, it imposes only political and moral obligations on the state and does not have the character of a legal right. This position was adopted in a leading legal decision, the Case of a Violation of the Staple Food Control Law (Supreme Court decision of September 29, 1948).
(b) The establishment of the abstract right doctrine
>> Later, the ruling of the trial court in the Asahi case (Tokyo District Court decision of October 19, 1960) set forth the abstract right doctrine, which holds that the right to a decent standard of living has been embodied in laws which give concrete form to Article 25, and that violations of those laws are, by extension, violations of Article 25. Further, the Supreme Court's decision of July 7, 1982 in the Horiki case recognized broad legislative discretion on the basis of this doctrine.
(c) The emergence of the concrete right doctrine
>> The abstract right doctrine was then developed further until it gave rise to a position known as the concrete right doctrine, which holds that, even in the absence of legislation to make Article 25 concrete, a lawsuit can be brought claiming that the State's legislative nonfeasance is unconstitutional.
(d) Legislative conduct including legislative nonfeasance, and litigation seeking State compensation
>> Although the majority view was formerly critical of proposals to test the constitutionality of legislative nonfeasance in the courts under the concrete right doctrine, it has now come to be accepted that the constitutionality of legislative conduct including legislative nonfeasance can be contested under the State Compensation Law.
>> In its November 21, 1985 decision on the constitutionality of a Diet failure to legislate absentee voting for the handicapped, the Supreme Court recognized that legislative conduct, including legislative nonfeasance, can be illegal under the State Compensation Law, albeit in limited circumstances described as "exceptional and extremely unlikely cases such as the deliberate enactment by the Diet of a law whose contents violate the unequivocal text of the Constitution." Further, the lower courts have recently been experimenting with flexible interpretation of Supreme Court precedents. Although the case cited above concerned a different right, I believe that there is room to test the constitutionality of legislative nonfeasance in cases of the right to a decent standard of living.
3. The social security system and its ideals
(a) The 1995 recommendations of the Social Security System Council on "Restructuring the Social Security System"
>> After World War II, the ideal or challenge for social security was to guarantee a minimum standard of living. In contrast, the 1995 recommendations stated that we must place importance on "social solidarity" as an ideal of social security in the 21st century.
>> It will be necessary to design a system to support social solidarity in Japan. Among the ideals for restructuring social security, we must include the ability to lead an independent life in society, and we must give this ideal concrete form. Also, in the area of social welfare, as a step in the direction of social solidarity, there is much to be said for introducing the techniques of insurance instead of the traditional system of administrative measures, thereby promoting a benefit system that supports independence.
(b) The burden of social security costs: Restructuring social security
>> While tax funding is important, it is also important to realize a system in which, as a sign of social solidarity, beneficiaries bear their share of costs.
>> As we become an aged society, it is said that we need to design
a new social security system. However, this must be done not in a retrograde
way, but in a way that enhances social security and social welfare by ensuring
that the people or citizens, who are the participants, play an active and
self-governing role and, moreover, bear their share of the costs.
Main points of Prof. OSHIO's statement
Introduction
>> The public pension system, which is the nucleus of the social security system, is an important means of giving concrete form to Article 25, because it guarantees a minimum standard of living in old age. However, with the population aging and the birthrate falling, there is a growing sense of insecurity and distrust of the pension system, as the public becomes increasingly unsure that it is financially sustainable.
1. The problems in the existing system
>> There are two problems in the existing public pension system: (a) It is an assessment system, i.e., contributions by the generation currently working are used to make payments to their elders, and with the present low birthrate and aging of the population, pension finances have deteriorated to an extreme degree. (b) There is a growing intergenerational gap, as seen in the fact that the "lifetime net benefits ratio" for public pensions (the difference between money contributed and benefits received, as a proportion of lifetime earnings) is unequal between the generations.
2. Toward the 2004 reforms
>> In preparation for revising the pension system next year, the Ministry of Health, Labour and Welfare is now studying the introduction of a "fixed contribution system," which would set a maximum contribution rate and adjust benefit levels without raising contributions above that point. This system has its merits as a measure designed to review the existing relationship between benefits and costs and to stop further expansion of the "net pension debt" (the difference between past benefit costs and the pension reserve fund). However, it will not change the fact of a rising cost burden and lower benefits, and thus it does not offer a solution to the disparity between generations.
3. The desirable direction of reforms (my personal view)
>> To correct the disparity between generations, among other reasons, the pension system needs to be reorganized in a slimmer, sustainable form. To that end, I propose that public pensions be limited to the basic pension that guarantees a minimum income in old age, that the additional part of the pension that is proportional to earnings be made the responsibility of the individual, not the public sector, and that the state limit itself to supporting the latter with preferential taxation treatment or similar measures.
4. Issues to be resolved
>> In implementing the above reforms, the following issues will have to be resolved: (a) Would it be advisable to use the present level of livelihood assistance benefits and basic pensions (67,000 yen per person) as a general guideline for basic pension benefits? (b) Since a means test to determine basic pension benefits would probably be impractical, would it be advisable to make the benefit payments uniform, regardless of income levels, and then take measures to redistribute income in the older generation through income taxes? (c) With regard to funding the pension system, a larger burden should be imposed on high-income earners by linking contributions to income in order to ensure fairness (income redistribution) within each generation. To achieve this, it will be important to identify income levels. As a second-best measure, the consumption tax could also be considered as a revenue source, but it would pose a problem of regressiveness (i.e., the lower a person's income, the higher their relative tax burden).
5. Conclusions
>> Faced by a declining birthrate and an aging population, we should conduct a radical review of the public pensions system, which is the nucleus of the social security system, to ensure sustainable funding and fairness both between and within generations. Public pension benefits should be limited to the basic pension, and the system's funding should be linked to income, regardless of occupation.
Main points of questions and comments to Dr. NAKAMURA and Prof. OSHIO
KURATA Masatoshi (Liberal Democratic Party)
(To Dr. NAKAMURA)
>> Given that the SCAP draft was written after the Constitution Investigation Association issued its "Outline of Constitution Draft," is it possible that the SCAP draft was influenced by the Outline, which contained provisions on the sovereignty of the people and the symbolic Emperor system?
(To Prof. OSHIO)
>> You argued that public pensions should be limited to the basic pension. As a general approach to pension systems, do you think it is preferable to rely basically on personal responsibility while funding the system partially through public funds, rather than maintaining a high-cost, high-benefit welfare system in which the ratio of taxes and social security contributions to gross national income is over 70 percent, as in the Scandinavian countries?
>> In Denmark, the population has increased and its aging has slowed, in spite of the high ratio of taxes and social security contributions to gross national income. I think that, as this example shows, it can be acceptable to have a high ratio of taxes and social security contributions to gross national income, provided that the system is reliable and stable. Do you agree?
>> You argued that we should rely on income taxes rather than consumption taxes to fund the pension system. However, I think we have no choice but to place the emphasis on the consumption tax, since excessive reliance on the ability principle of taxation gives rise to unfairness. What is your view in this regard?
MIZUSHIMA Hiroko (Democratic Party of Japan and Club of Independents)
(To both informants)
>> In my view, the recent controversial remark that women who have not had children should not receive tax-funded pensions violates the principle of Article 25, which guarantees a minimum standard of living, regardless of whether or not one has had children. What is your view in this regard?
(To Dr. NAKAMURA)
>> In the existing social security system, it seems to me that applicants are tossed from department to department during their quest for assistance because of the gaps between different parts of the system, for example, the relationship between the child care allowance system and the livelihood assistance system. I think the system should be more flexible so that one can enjoy various rights. What are your views on this point?
(To Prof. OSHIO)
>> What do you think about the level of basic pension benefits as a minimum guarantee for persons living alone?
>> What are your views concerning women and pensions, particularly in regard to the problem of third-category insurees, that is, spouses of employed persons who live primarily on the employed person's income? Also, I would like to hear your views of the Swedish-style pension system.
OTA Akihiro (New Komeito)
(To Dr. NAKAMURA)
>> In its 1995 recommendations, the Social Security System Council cited "social solidarity" as a basic principle of social security in the 21st century. In order to realize this ideal, do you think that we should incorporate it in the wording of a revised Article 25, or do you think that there is no need to revise Article 25?
>> How would you define the concepts "wholesome" and "cultured" in Article 25? I believe that a Constitution for the 21st century should have a clear orientation as a people's Constitution, a human rights Constitution, and an environmental Constitution, but is there anything that should be added to the guarantee of a minimum standard of living in the 21st century, besides "the minimum standards of wholesome and cultured living"?
>> The minimum standard for housing is said to be 28 square meters per person, but in Tokyo this is difficult to secure. How do you view the relationship between Article 25 and housing?
(To Prof. OSHIO)
>> You stated that public pensions should ideally be limited to the basic pension, but aren't there some pensioners, such as women living alone, for whom we should consider raising benefit levels? Also, what are your views on the relationship between the level of livelihood assistance and the level of the basic pension?
TAKEYAMA Yuriko (Liberal Party)
(To Dr. NAKAMURA)
>> I would like to hear your views on the Hansen's disease lawsuit, in which legislative nonfeasance by the state was at issue.
(To Prof. OSHIO)
>> In light of recent social changes, I think that the gap between generations will widen still further in the future. How do you think we should tackle this problem?
>> Given that, at present, most young people are anxious about their future pension benefits and yet almost half are not paying the contributions, I think that the national government should make its overall policy direction clear to the younger generation. What kind of policy direction do you think it should lay down?
>> The Liberal Party advocates making the consumption tax a special-purpose
tax and using it to fund basic pensions, medical care and home-nursing
care, and related programs. What is your view of this position?
HARUNA Naoaki (Japanese Communist Party)
(To Dr. NAKAMURA)
>> I think that Article 25 of the Constitution of Japan is an advanced initiative compared with similar provisions in the constitutions of other nations, in view of the wording "All people" in paragraph 1 and the clear statement of the state's obligation in paragraph 2, among other points. Do you agree?
>> The government apparently interprets Article 25 as merely giving a policy guideline while allowing broad legislative discretion, but I believe that it sets forth a substantive right. What is your view?
>> Naturally, I agree with the principles set forth in the 1995 recommendations of the Social Security System Council, but when one compares them with the same Council's recommendations made in 1950, I feel that in some areas they represent a step backwards. This view is supported by the fact that, among Japan, the United States, France, and Germany, in recent years, Japan has the lowest social security outlay in proportion to GDP, and this ratio is showing a downward trend. What are your views regarding recent developments in reforming social security, and what form do you think the state's responsibility should take?
(To Prof. OSHIO)
>> I think that the key to overcoming the decline in the birthrate
is that society as a whole should provide support so that women can combine
a career and a family. What are your views in this regard?
KITAGAWA Renko (Social Democratic Party)
(To Dr. NAKAMURA)
>> Looking at Article 27, I feel that, in reality, the guarantee of the right to work must be said to be in retreat; take, for example, the amendment of the Labor Standards Law in the current session of the Diet. How do you view the present situation in regard to the guarantee of the right to work?
>> In recent years, there has been a rapid rise in the suicide rate. Statistics show that the most common reason is health problems, followed by economic distress. Doesn't Article 25 have some recourse to offer to people who are about to give up hope?
>> In your view, how are Article 9 and Article 25 related?
(To Prof. OSHIO)
>> In your comments, were you assuming that Japan would maintain a certain economic level in future, or were you assuming that the economic level would decline?
>> I believe that, ideally, the social security system should provide
not merely cash benefits but assistance to proceed to the next step after
a certain amount of time, e.g., by offering opportunities for graduate
study, or by providing vocational training. What are your views in this
regard?
INOUE Kiichi (New Conservative Party)
(To Dr. NAKAMURA)
>> I am in favor of interpreting Article 25 according to the programmatic provisions doctrine. However, I believe that not only are social rights different by nature from civil liberties, but that it is acceptable for guarantees of social rights to differ from one country to another, reflecting national conditions. Europe developed its social security system over the course of 150 years, but it seems to me that Japan has its own unique approach to guaranteeing the right to a decent standard of living. What do you think of this kind of view?
(To Prof. OSHIO)
>> Are public pensions, especially basic pensions, related to the right to a decent standard of living stated in Article 25, and if so, to what extent are they related?
>> If you regard basic pensions as related to the right to a decent standard of living, how do you view the relationship between basic pensions and livelihood assistance?
>> What basis is used to decide the benefit levels for livelihood
assistance and public pensions?
NODA Seiko (Liberal Democratic Party)
(To Dr. NAKAMURA)
>> In view of the longer average lifespan of the Japanese today, I am sure that the image of the typical elderly person has changed compared with the late 1950s and early 1960s, when the pension system was created. To my mind, the elderly today are not automatically in a weak position in society. Shouldn't we design a social security system adapted to this new identity of the elderly?
(To Prof. OSHIO)
>> Today, people in their twenties and thirties face a situation
where, by the time they qualify to draw pensions, they will be unable to
receive benefits that correspond to their contribution. Further, the unemployment
rate for the age group 15 to 24 is estimated to be close to 10 percent.
How do you view this threat to the right of the younger generation-whose
contributions support the costs of the social security system-to maintain
a decent standard of living?
SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
(To both informants)
>> I think that the "minimum standards of wholesome and cultured living" referred to in Article 25, paragraph 1 change with the times. Are there any aspects of these standards that are determined in a quantifiable way as the times change?
(To Dr. NAKAMURA)
>> Do the provisions on the right to a decent standard of living apply to persons whose income is close to the minimum, or do they also apply to persons with a normal income level with a view to ensuring that they have access to health care, education, transportation, and so on?
(To Prof. OSHIO)
>> It is all very well to aim for a welfare state while the nation's
public finances are in crisis, but the reality is that you cannot make
something out of nothing. I believe that there are in fact only two ways
to reconcile this conflict: either increase the burden, or reduce the benefits.
How do you think we should resolve this dilemma?
TANIMOTO Tatsuya (Liberal Democratic Party)
(To Prof. OSHIO)
>> In which generation will the "lifetime net benefits ratio" turn from positive to negative?
(To both informants)
>> In your view, how should we explain the meaning and the importance of the social security system, especially pensions, to young people who are reluctant to pay the contributions if they are not going to be able to collect a pension?
>> Prof. OSHIO's proposal to limit public pensions to the basic pension will likely be criticized on the grounds that it violates the property rights of those who have been paying contributions on the basis of a different assumption. What is your view in this regard?
>> What do you think is the ideal ratio between insurance and taxes as a way of bearing the cost burden of social security?
Main points of comments by members of the Subcommittee (in order of presentation)
HARUNA Naoaki (Japanese Communist Party)
>> I think that today's meeting has made it clear that Article 25 is advanced in comparison with the constitutions of other countries.
>> I have a renewed awareness of the process by which the right to a decent standard of living took on the nature of a substantive right, including the history of the academic debate over the legal character of Article 25, and the challenges in a judicial forum. I believe it is important to further develop the right to a decent standard of living as a substantive right, and that improvements should be made in the realities where this right has been neglected.
>> The government today is being called on, as a responsibility of
the state, to reform public finances so that social security spending becomes
their core.
HANASHI Nobuyuki (Liberal Democratic Party)
>> A crisis in funding social security would be a very serious matter,
considering that financial collapse of the social security system could
lead to the collapse of Japanese society. To avoid such a crisis, we must
improve the social structure, and members of the Diet must lead a national
debate and encourage both young and old to develop the consciousness that
they are supporting the nation together.
SENGOKU Yoshito, Deputy Chairman
>> During the question time, a speaker noted the importance of "social solidarity," but this is a difficult thing to institutionalize. The slogan "Self-help, mutual help, public help" was popular at one time, but, since money does not grow on trees, it is unwise to expect the national or local governments to take care of everything, because, in the end, the costs must be paid with taxes or with debt that will burden future generations. I am afraid that this slogan may have been used too freely in the past.
>> Amid ongoing globalization, if we place too heavy a burden on
companies or individuals by pursuing the goal of making Japan a "one-nation
welfare state," we could lose to international competitors, and, ultimately,
even the social security system itself could cease to be viable. In developing
the social security system, as in other areas, I think we must include
globalization in our perspective.
TAKEYAMA Yuriko (Liberal Party)
>> In the present social security system, in some cases contributions
are withheld from salaries, while in others, such as the national pension
system, the insured person pays the contributions directly. In the latter
case, one inevitably tends to feel that the payment is somehow burdensome.
I think that we should also study the methods used to collect contributions.
KURATA Masatoshi (Liberal Democratic Party)
>> Underlying all the problems related to social security is the
falling birthrate. I suggest that the problem of the decline in the birthrate
can be solved by measures such as designing a system that enables society
as a whole to provide support for child-rearing, and promoting gender equality.
Whereas Britain and France have dealt effectively with their declining
birthrates by taking steps of this kind, the late-developing capitalist
nations, such as Japan, Germany, and Italy, have been slow to respond with
similar measures and are therefore still suffering from this problem.
HANASHI Nobuyuki (Liberal Democratic Party)
>> In reforming the social security system, I suggest that we will find an instructive example in the case of Sweden, where improvements in social security led to an increase in the birthrate.
>> It should be a joy to have children, to have a home and family,
but postwar Japan has forgotten the value of these things. After serious
reflection on this fact, I would like to propose that we include a clear
statement of the importance of the home and the family in the Preamble
and elsewhere in the Constitution.
SENGOKU Yoshito, Deputy Chairman
>> Women today have "gone on strike" by not having children. I attribute this to postwar Japan's failure to change the male-centered nature of its society. According to UN statistics, countries with a high rate of women in management also have a high birthrate. I am concerned that, as things stand, we will be unable to prevent a female "brain drain," and women in Japan will have even fewer children. As a first step toward solving these problems, we should create a system allowing the optional use of separate surnames by married couples.