Subcommittee on Guarantee of Fundamental Human Rights (First Meeting)

Thursday, February 19, 2004

Meeting Agenda

Matters concerning the guarantee of fundamental human rights (equality under the law: important issues involving the principle of equality, such as the discrepancy in the weight of a single vote and the inheritance portion of illegitimate children, with a discussion of business corporations and human rights)

After a statement was heard from Professor UCHINO Masayuki concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

  • UCHINO Masayuki, Professor, (Office for the Establishment of Chuo Law School), Chuo University

Members who put questions to Prof. UCHINO

Main points of Prof. UCHINO's statement

1. Introduction

>> Traditionally, Japan has tended to be a homogeneous society in which people are liable to be prejudiced against minorities who are "different." The national and local governments have a duty to conduct various programs, including educational campaigns, with the goal of creating a society sensitive to the needs of the "socially disadvantaged." Overcoming the discriminatory attitudes that people tend to hold is another important task.

>> There is little need for constitutional revision in the area of human rights (including the enactment of explicit provisions on such matters as privacy). Instead, we should improve the measures taken under the existing Constitution.

>> The items enumerated in Article 14, Paragraph 1, and in the proviso to Article 44 should be regarded as examples, not as an exhaustive list.

2. How the Constitution's provisions on "equality" should be read

>> The Constitution's prohibition of discrimination is not absolute, but allows for reasonable distinctions. Also, the "discrimination" which is forbidden as a general principle by Article 14 refers to discriminatory treatment, not discriminatory attitudes or speech.

>> The imposition of legal restraints, with penalties, on the use of discriminatory expressions about members of a group should be approached with caution.

3. Formal equality and substantive equality

>> There are two concepts of equality: "formal equality," which requires that individuals be treated uniformly on the same basis, and "substantive equality," which seeks to make the outcomes more nearly equal by giving preferential treatment to those who, in reality, are in an inferior position. In my view, Article 14 calls for formal equality (allowing for reasonable distinctions), and the role of realizing substantive equality is expected to be played mainly by legislative measures.

>> With regard to the problem of the imbalance in the allocation of Diet seats, there is a constitutional requirement that the discrepancy in the weight of a single vote in the House of Representatives be held within a ratio of 1:2, but the same cannot be said of the House of Councillors. In terms of political equality, there is room to reexamine the existing system in such areas as eligibility to vote and guaranteeing the opportunity to vote.

>> Although this is a minority opinion in the Supreme Court, I believe that discrimination against children born out of wedlock is unconstitutional. Also, a system that would allow married couples the optional use of different surnames is not required by the Constitution, and in my view this should be achieved through legislative measures.

>> In regard to same-sex marriage (or equivalent partnerships), the recent ruling by the Massachusetts State Supreme Court is noteworthy.

>> Substantive equality should be promoted by affirmative or positive action through legislative and administrative measures.

4. Discrimination against women

>> The Constitution forbids discrimination on grounds of sex. This is an important issue for the future with regard to creating a gender-equal society.

>> Whether to recognize female succession to the Imperial throne, be it in the male or the female line, is a question of legislative policy.

>> In certain cases, such as sports events and prisons, maintaining separate categories for men and women is a reasonable distinction. The question of whether national or public women's colleges and girls' schools justifiably constitute separate categories is the subject of ongoing debate.

5. Equality and discrimination in the private sector

>> Legislation such as the Equal Employment Opportunity Law and the Labor Standards Law has helped resolve problems in the business world. The settlement of the Sumitomo Electric Industries sex discrimination suit that was mediated by the Osaka High Court can be regarded as a breakthrough.

>> In theory, discrimination in the private sector can be dealt with adequately by indirect application of the Constitution's human rights provisions. However, in the Mitsubishi Plastics case the Supreme Court said only that discrimination may be illegal beyond certain limits.

>> There is a need to create rules prohibiting discrimination by private persons. To this end, either the Human Rights Protection Bill should be reviewed and resubmitted, or a law to prohibit discrimination should be considered.

Main points of questions and comments to Prof. UCHINO

ONO Shinya (Liberal Democratic Party)

>> Critics charge that there is an imbalance between rights and duties in the existing Constitution, with more rights than duties provided for. What are your views on this point?

>> As a contemporary way of looking at the Constitution, I think that if we viewed it as a contract that sets out what the government and the people should respectively do, society would be run better. Would you like to comment on this?

>> In your statement, you used the term "disadvantaged." I would like to ask the criteria for determining whether a person is "disadvantaged." Also, if the criteria are established by public institutions, might this not actually encourage social discrimination?

>> You said that with regard to the imbalance in the allocation of Diet seats, there is a constitutional requirement that the discrepancy in the weight of a single vote in the House of Representatives be held within a ratio of 1:2, but that the same cannot be said of the House of Councillors. Would you please explain this statement in detail?


RYU Hirofumi (Democratic Party of Japan and Club of Independents)

>> I believe that in the future we must achieve "small government," and that, up to a point, we will be forced to accept the "inequality of results" that will ensue as personal responsibility comes to play a greater role. Would you like to comment on this in relation to Article 14?

>> Do any scholars hold that the grounds for discrimination listed under the prohibition in Article 14, Paragraph 1, are an exhaustive list rather than examples?

>> You said that in the area of human rights we should work within the framework of the existing Constitution rather than revising it, but do you see no need to revise the Constitution even in the future?

>> In my view, constitutional interpretation today has too broad a scope, and it has become extremely complex. I think something should be done about this, such as revising the Constitution and writing explicit provisions where necessary, or establishing a Constitutional Court. What are your views in this regard?

>> Does limiting the right to vote to persons over the age of 20 not present any problem in relation to Article 14?

>> With regard to the imbalance in the allocation of Diet seats, you take the position that it is acceptable to treat the discrepancy in the weight of a single vote differently in the two Houses. Would you please explain this position in detail?


OTA Akihiro (New Komeito)

>> Article 14, Paragraphs 2 and 3 were products of their times, and I think that today they could safely be deleted. Do you agree?

>> I think that the list of grounds for discrimination prohibited in Article 14, Paragraph 1 should be brought up to date, for example, by adding physical handicaps. Do you agree?

>> The balance between rights and duties mentioned by Mr. ONO also changes with the times, and it seems to me that what is being sought at present is regulation of private persons as well as of the state. One way to do this might be to create a new axis of "responsibilities" in the Constitution. Would you like to comment on this suggestion?

>> You said that there is little need for constitutional revision in the area of human rights (including the enactment of explicit provisions on such matters as the right to privacy). Why did you specifically mention the right to privacy?

>> You stated that the Constitution requires formal equality and that it stops short of requiring measures to achieve substantive equality, such as affirmative action. Am I correct in thinking that it does not require substantive equality from the ideal nature of a constitution?

>> I take the position that we should establish positive and explicit provisions in the Constitution on such matters as the environment. Is it your view that positive action should be left to the law, while the Constitution should basically deal with general principles?


YAMAGUCHI Tomio (Japanese Communist Party)

>> The Constitution contains detailed human rights provisions, such as Chapter III and Article 97. What is your view of their significance and the historical conditions that gave rise to them?

>> You said that Article 14, Paragraph 1 requires formal equality only, but, taking it in conjunction with Article 25, among other clauses, I believe it also requires substantive equality. I would like to hear your reading of Articles 14, 25, 26, and 27.

>> I believe that we should improve measures to address human rights issues under the existing Constitution, rather than revising it. However, the legislature, the administration, and others concerned have been notably slow in dealing with these issues. Why do you think this is?

>> What elements constitute a breakthrough in the settlement of the Sumitomo Electric Industries discrimination lawsuit (December 24, 2003; Osaka High Court)? The court's recommendation that a settlement be reached was also addressed to the government, which was a defendant in the lawsuit; how do you view this?

>> How should the government respond when Japan receives recommendations from the international community, as it did last year from the UN Commission on the Elimination of Discrimination against Women?

>> In light of the spirit of Article 14, I believe that ideological discrimination by business corporations is illegal. Do you agree?


DOI Takako (Social Democratic Party)

>> Under Article 14, equality, or the prohibition of discrimination, is said to allow "reasonable distinctions," but who decides what is reasonable, and based on what criteria? Would you please describe in detail what goes into determining reasonableness?

>> In the international community today, there is a growing respect for human rights and a heightened awareness of the principle of equality, and there are an increasing number of treaties concerned with human rights. In view of their aims, concluding these treaties should be a high priority, but not only is Japan very slow to ratify, it is also sometimes criticized by the international community for not adequately fulfilling its obligations of compliance with the treaties that it has ratified. I believe that the problem lies in the failure of lawmakers and administrators to meet their obligations. What is your view in this regard?


MATSUNO Hirokazu (Liberal Democratic Party)

>> I would like to hear your opinion as to whether the human rights cited in the Preamble as a universal principle of mankind and human rights inside Japan are essentially the same in nature.

>> In light of the principle that the accused is presumed innocent until proven guilty, I think that publishing the names of criminal suspects in the news media is a violation of human rights. What is your view on this point?

>> Compared to other countries, Japan gives official recognition to a relatively low proportion of persons with disabilities. From the viewpoint of gaining substantive equality for disabled persons, how do you rate the present system in which, to be certified as having a disability, one must first put in an application?


TSUJI Megumu (Democratic Party of Japan and Club of Independents)

>> What are the administration and lawmakers being asked to do in regard to the proper handling of persons involved in criminal cases?

>> Media coverage of particularly shocking crimes sometimes comes to resemble a witch hunt, but shouldn't a mature society eschew such behavior, which seeks to exclude those who are different?

>> As I understand it, the judiciary's proper role with regard to the requirements of Article 14 is to guarantee substantive equality. Is this correct?

>> The treatment of illegitimate children is considered to be a matter of weighing respect for legal marriage against the human rights of children born out of wedlock. But isn't there an order of precedence among the interests to be weighed, and shouldn't realizing the principle of equality come first?

>> You proposed the enactment of a law banning discrimination. What would be the aims of this law?


FUNADA Hajime (Liberal Democratic Party)

>> Am I correct in understanding that there are two concepts of equality, "equality of opportunity" (formal equality) and "equality of results" (substantive equality), and that the Constitution's guarantee of equality refers to equality of opportunity, stopping short of requiring equality of results?

>> In the past, the United States has attempted to redress discrimination by means of affirmative action. When such measures have gone too far, however, they have had adverse effects—such as reverse discrimination, and causing discrimination to become entrenched—and, as a result, the United States is now moving in the direction of doing away with affirmative action in part. How do you view measures of this type to redress discrimination and the problem of their being taken too far?

>> As I understand it, there is a presumption that single-sex education in state and other public schools and colleges is unconstitutional in the light of the criteria for judicial review in Article 14, and the reasons used to justify single-sex education in public schools have also lost much of their force of late. How do you view single-sex schools in terms of the principle of equality?

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

NAKAYAMA Taro (Chairman)

>> As electronic government develops, the protection of personal information becomes an issue. Taking note of the fact that Finland has stipulated the protection of personal information in its constitution, we should pursue a discussion of the new science and technology in relation to human society.

SONODA Yasuhiro (Democratic Party of Japan and Club of Independents)

>> You argued that there is little need for constitutional revision in the area of human rights. However, the Constitution is a law intended to curb state power and aid the socially disadvantaged, and stipulating "new rights" such as the right to privacy in the Constitution would help guarantee human rights. This is especially clear in light of the debate on "the right to know" that took place when the Information Disclosure Law was enacted.

>> In applying the Constitution to the acts of private persons, we should strengthen the guarantee of human rights by adopting the theory of state action (which treats private acts in the same way as state acts and applies the Constitution to them directly).

TANAHASHI Yasufumi (Liberal Democratic Party)

>> We should conduct further debate on two points regarding fundamental human rights: (a) "new human rights" for the 21st century, such as the right to privacy and environmental rights; (b) the application of the Constitution's human rights provisions to private persons.

ONO Shinya (Liberal Democratic Party)

>> The information society is characterized by: (a) the difficulty of establishing borders in cyberspace; (b) the rapid pace of technological advances; (c) the frequency of human rights violations related to freedom of thought and expression; (d) the enormous influence that even one individual can wield. We may not be able to address these features entirely through conventional constitutional debate; eventually, the creation of an international framework and a new system of laws will probably be necessary.

MURAKOSHI Hirotami (Democratic Party of Japan and Club of Independents)

>> In spite of efforts to promote gender equality, women are not yet playing a full enough role in society. We should consider introducing affirmative action as a transitional measure in order to encourage women's participation in every sphere.

>> In thinking about the legal force of the Constitution's provisions on fundamental human rights when applied to private persons, we should consider providing an effective guarantee of human rights, turning for reference to the German theory that the state has a positive obligation to ensure the protection of fundamental human rights.


YAMAGUCHI Tomio (Japanese Communist Party)

>> We need to look at the information society from a multifaceted perspective, combining views (a) from the actual political society, and (b) in relation to the Constitution.

>> The existing Constitution can be said to adequately guarantee "new human rights," because these rights originally had their roots in the human rights provisions of Articles 13 and 25, among others, and were established through the civic movements and cumulative court decisions.

>> Provisions concerned with human rights and democracy (for example, gender equality and social rights) must be put into practice in actual legislation and administration, and we must keep a constant and critical watch on their status.


KURATA Masatoshi (Liberal Democratic Party)

>> With the birthrate in free fall because measures are lagging behind in the area of gender equality, would it not be possible to address the situation by writing a kind of "ideal" into the Constitution? Article 9 is currently under debate, but when it was originally enacted, it, too, was a provision that embodied an "ideal." There is room for discussion over how it would be framed, but I suggest that one approach would be to write equal treatment for women into the Constitution as an ideal.


DOI Takako (Social Democratic Party)

>> The Constitution expresses the importance of the legal guarantee of human rights. However, it is problematic that, in some cases, a law will leave matters that it is supposed to cover to subordinate statutes such as Cabinet orders, effectively giving them carte blanche. For the sake of respect for human rights, we in the Diet should be aware of the importance of the laws that we enact.


SONODA Yasuhiro (Democratic Party of Japan and Club of Independents)

>> "New human rights" should be set forth explicitly in the Constitution, in order to clarify the concepts they contain and ensure that they will be guaranteed to future generations also.


FUNADA Hajime (Liberal Democratic Party)

>> Efforts are needed to protect substantive equality while guaranteeing formal equality. Lawmakers and policy-makers should take into account the fact that even some private persons have a great deal of power.

>> I think it is appropriate that the right to vote in national elections be granted only to Japanese citizens. However, although some people are opposed to the idea, I think it would be acceptable to allow certain foreign permanent residents to vote in certain local elections, such as those at the municipal level, which is close to residents' lives. The fact that this question is still pending is due to negligence on the part of lawmakers. Isn't it time we reached a conclusion?

>> Article 750 of the Civil Code, which states that married couples must take the same surname, treats men and women equally as a matter of form, but in reality the wife almost always takes the husband's name. In such cases, where discrimination still exists among socially accepted ideas, it seems to me that we should take corrective action through legislative measures.


ONO Shinya (Liberal Democratic Party)

(In connection with Ms. DOI's comment)
>> If legislation is too specific, I am concerned that it will be unable to cope with actual situations. We should leave a certain degree of freedom.

>DOI Takako (Social Democratic Party)

>> I did not mean to suggest that nothing at all—not even the technicalities—should be left to subordinate statutes. What I meant was that when even the law's main structure is left to subordinate statutes such as Cabinet orders, there is a risk that the law itself will end up becoming an empty shell. Accordingly, we must beware of being too quick to leave the structural parts to subordinate statutes such as Cabinet orders, in light of the intent of the Constitution.