Subcommittee on Guarantee of Fundamental Human Rights (Second Meeting)

Thursday, March 11, 2004

Meeting Agenda

Matters concerning the guarantee of fundamental human rights (civil and political liberties, especially freedom of thought and conscience, freedom of religion, and the separation of religion and the state)

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

Informant

  • NOSAKA Yasuji, Dean of the Department of Law, Gakushuin University

Members who put questions to Prof. NOSAKA

Main points of Prof. NOSAKA's statement

1. Freedom of thought and conscience

[1] "Thought" and "conscience" can be distinguished roughly as follows: An individual's "thought" is a body of ideas and beliefs, positions and principles, a worldview, or a view of life, all of which are based on a particular value system. "Conscience" is the mental process of judging the propriety of a matter or of one's own conduct. The important point, however, is the fact that freedom of thought and conscience (freedom of thought in the broad sense) is a freedom fundamental to human existence.

[2] Provision was made in the Constitution for freedom of thought and conscience because a bitter lesson had been learned from the repression of freedom of thought under the Meiji Constitution.

[3] Not many constitutions make provision for freedom of thought and conscience independently of freedom of religious belief, as Article 19 does. In the Constitution of Japan, although freedom of religious belief and freedom of religious conscience are guaranteed in Article 20, it does not follow that these freedoms are therefore excluded from Article 19. Article 19 should be construed as an all-inclusive guarantee of the freedom of private thought, including religious faith.

[4] When the Constitution says that "Freedom of thought and conscience shall not be violated," it means that people are free to hold whatever private beliefs they wish, and that the state may not restrict or prevent them from doing so. A number of cases involving the prohibition of forced confessions of personal beliefs have come before the courts, for example, the Mitsubishi Plastics case (which concerned the collection of personal information during job interviews). In Japan, issues relating to the freedom of thought and conscience do not take the form of controversies over the prohibition of disadvantageous or discriminatory treatment based on a person's beliefs, but in the United States, there is controversy over the imposition of a heavier penalty when an offense is judged to be a hate crime, i.e., a crime in which the victim is selected indiscriminately, so to speak, as a member of a group (for example, one based on color, creed, or sexual orientation), and the perpetrator does not know the victim personally or harbor any hostility against him or her as an individual. With regard to the prohibition on coercion of acts that violate a person's beliefs or conscience, there have been court rulings on, for instance, the legality of political contributions by the Minami-Kyushu Tax Accountants Association; related issues include conscientious objection to military service and the ability to refuse to serve as a lay judge because of one's personal beliefs. Another key question involving freedom of thought and conscience is the issue of compulsory display of the national flag and singing of the national anthem. In relation to the freedom to remain silent, the question of whether someone can be compelled to publish an apology in a newspaper has been contested in court.

2. Freedom of religion and the principle of separation of religion and the state

[1] Freedom of religion consists of freedom of belief, freedom of religious acts, and freedom of religious association. Together with freedom of thought, it is one of the most important human rights at the core of the Declaration of Human Rights.

[2] Scholars and the courts agree that the principle of separation of religion and the state is intended to promote and strengthen the guarantee of freedom of religion. Also, there is no room for doubt that what is required constitutionally is "strict separation."

[3] The reason that the Constitution unreservedly guarantees freedom of religion and makes detailed provision for the separation of religion and the state is because suppression of religious freedom was experienced under the Meiji Constitution, which did not contain an adequate guarantee.

[4] Freedom of religion includes both freedom of belief and the freedom to act in accordance with one's beliefs. As a freedom to hold private beliefs, the former is guaranteed absolutely, and there are bans on coerced confession of belief and disadvantageous treatment on the grounds of belief (or nonbelief), as is also the case for freedom of thought and conscience. However, because religious acts are external acts that have an impact on other members of society, the freedom to act according to one's beliefs must, by necessity, be subject to certain limits; these must be the minimum restrictions necessary to achieve an essential public good. Judicial precedents in this area include the Buddhist faith healing case, the case concerning the order to dissolve the Aum Shinrikyo religious corporation, and the case of a refusal by a Jehovah's Witness student to take part in school kendo (Japanese fencing) training.

[5] A majority of scholars hold that the Constitution requires strict but not "complete" separation of religion and the state. The courts, meanwhile, have adopted the approach of taking the existence of a religion-state relationship as a given and asking to what extent it is permissible in particular cases; this is not appropriate, however.

What is known as the "purpose and effect" principle has been established by judicial precedent as a standard for judging whether an action violates the separation of religion and the state, but its objectivity is questionable, and there is a need for a full-scale reexamination of the "purpose and effect" principle. This should include its prototype the "Lemon test," in which the U.S. Supreme Court laid down three requirements for an action by the government to be constitutional: (a) it must have a secular purpose; (b) it must not have the primary effect of advancing religion; (c) it must not have the primary effect of promoting an "excessive entanglement" of the government and religion. The reexamination should also include the endorsement test (a more practical standard obtained by modifying the Lemon test).

Among government actions whose constitutionality under the principle of religion-state separation is controversial are the use of public funds to make donations or to purchase offerings for Shinto groundbreaking ceremonies, shrines, etc.; the collective enshrinement of deceased Self-Defense Force personnel and the erection of monuments to the loyal dead; the Sokuinorei and Daijosai ceremonies commemorating the enthronement of the Emperor; and the Prime Minister's visits to Yasukuni Shrine.

Main points of questions and comments to Prof. NOSAKA

TANAHASHI Yasufumi (Liberal Democratic Party)

>> I see a need to study whether the constitutional provisions on freedom of thought and conscience properly apply to acts between private persons, because, in practice, this tends to be more of an issue today than actions of the government. What are your views on this point?

>> As I see it, the essence of the principle of religion-state separation is that no religious organization shall exercise any power which lies at the foundations of state authority; it does not mean that religious organizations shall not engage in political and social activities. Do you agree?

>> I think that, in a way, the relationship between the principle of religion-state separation and freedom of religion is that of a means to an end; that is to say, the principle of religion-state separation exists in order to secure the guarantee of freedom of religion in actual society. Do you agree?


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

>> You spoke quite positively about the fact that the "lay judge" system, which is due to be introduced as part of judicial reform, will allow those summoned for jury service to decline on the grounds of their personal beliefs. Would you please explain this point in a little more detail?

>> In regard to the Yasukuni Shrine issue, steps such as enshrining Class A war criminals elsewhere are being debated, but these positions are meant solely to placate critics in other countries. I believe that we must first debate properly how we should deal with this issue as Japanese. You said that the Supreme Court has not issued a clear ruling on official visits by the Prime Minister. I would like to hear your views on the reasons for this.


OTA Akihiro (New Komeito)

>> It has been pointed out that if the government forced the Yasukuni Shrine to enshrine Class A war criminals elsewhere, that action would itself violate the separation of religion and the state, and that, furthermore, it would be meaningless in religious terms because their spirits would remain at Yasukuni. But I think it would be politically meaningful even if it had no religious meaning. Would you like to comment on these points?

>> In informal remarks made on August 14, 1985, the day before the first official visit to the Yasukuni Shrine made by a prime minister to mark the anniversary of the war's end, Chief Cabinet Secretary Fujinami said that, on the premise that "the majority of the public and the families of the war dead want the visit to go ahead," it would be conducted "in a form that does not adhere to Shinto rites, for the purpose of mourning the war dead." What is the explanation for this in relation to the "purpose and effect" standard for judging whether an action violates the separation of religion and the state?

>> You took the position that it is acceptable for the state to sponsor or participate in mourning the war dead as a public act, but that performing memorial rites for the war dead should remain a strictly private act. Would you please explain the difference between "mourning" and "performing memorial rites"?


YAMAGUCHI Tomio (Japanese Communist Party)

>> I think that behind the enactment of Article 19 was the desire to make a clean break with the oppression that occurred under the Peace Preservation Law (1925–1945), and this desire was a great inspiration for human rights as a whole. Would you agree with this assessment?

>> Individuals who suffered oppression under the Peace Preservation Law sued the government for compensation after the war. What is your view of this?

>> Would it be true to say that understanding the background against which the articles of the Constitution were written and how they have functioned in practice, including court decisions and legal principles, enriches the understanding of constitutional principles from a scholarly viewpoint as well?

>> Recently, a public servant was arrested for putting flyers for a political party he supports into mailboxes, on his own time and independently of his work duties, on the grounds that it violated the ban on political activity under the National Public Service Law. Isn't there a violation of fundamental human rights involved here?

>> Would I be right in thinking that the Prime Minister's visits to Yasukuni Shrine are more likely to be unconstitutional in your view because they create a relationship with a specific religious corporation?

>> I believe that it is unconstitutional to order employees to display the national flag or sing the national anthem as part of their duties, as this is a form of coercion. What are your views in this regard?


DOI Takako (Social Democratic Party)

>> Would I be right in thinking that, when you discussed standards for determining whether the principle of religion-state separation has been met, you were taking the existence of the "purpose and effect" standard as a given and expressing your own opinion regarding its application?

>> I got the feeling that it is extremely difficult to take the state to court in cases of violation of the principle of separation of religion and the state. Can you tell us what other recourse is available?

>> With regard to the Yasukuni Shrine issue, I felt that we must strive to firmly uphold the existing Constitution and put it into practice. Would you not agree that, in regard to this question, as in other areas, Article 81 has not been interpreted in a way that honors the ideals of the Constitution?


KURATA Masatoshi (Liberal Democratic Party)

>> When the Constitution was enacted, the adoption of a jury system was postponed on the grounds that (a) the Japanese had not won democracy by their own efforts, and (b) the jury system was not suited to the national character. Do you think that democracy has matured and the national character has changed to the point where we can now introduce a "lay judge" system?

>> In view of the fact that Article 37, Paragraph 1 guarantees the accused in all criminal cases "the right to a speedy and public trial by an impartial tribunal," shouldn't the "lay judge" system be made optional?

>> You said that under the existing system it is difficult for the Supreme Court to rule on the constitutionality of the Prime Minister's official visits to Yasukuni Shrine. Would it be a correct understanding of the situation to say that a ruling could be facilitated by legislative measures?

>> Do you see a need for a Constitutional Court?


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

>> Given the emphasis that you place on "original intent," in light of the principle of religion-state separation set forth in Articles 20 and 89, how do you explain the constitutionality or otherwise of local bodies using public funds to make improvements to shrines and temples in their districts as part of community development programs?

>> It seems that, under the existing Constitution, we cannot practice the kind of "fighting democracy" seen in Germany. As a constitutional policy, how do you think we should protect democracy?


ONO Shinya (Liberal Democratic Party)

>> Is the existing Constitution appropriate when we consider the freedoms and rights of the people?

>> While I believe that the state cannot intrude on the people's freedom of private thought, shouldn't we establish provisions that enable the conduct and expression in which private thought manifests itself to be restricted? Also, I believe that duties should take precedence over rights. Do you agree?

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

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

(In connection with Mr. ONO's comments)

>> After reflection on the lessons of history, the provisions for separation of religion and the state were enacted not just as a "freedom from the state" but as an institutional guarantee. The Yasukuni Shrine issue should be understood in this historical context.

> ONO Shinya (Liberal Democratic Party)

>> We currently have the very problematic situation that we cannot tell whether an act violates the separation of religion and the state until it is challenged in court.

>> If the Constitution is contrary to the accepted wisdom of society, it should be brought into conformity with that wisdom.

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

>> When public officials take a particular action, they should be cognizant of their obligation to respect and uphold the Constitution as stipulated in Article 99. It is getting things back to front to advocate changing the Constitution because certain people's conduct is contrary to it. It is only proper to expect them to obey the rules known as the Constitution.

> ONO Shinya (Liberal Democratic Party)

>> Something is wrong when a longstanding practice is suddenly challenged as unconstitutional in court. The vagueness of the Constitution's provisions is partly to blame, but I am not convinced that the courts are the only possible recourse, and I raised the issue from this point of view.

> TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> It was my feeling that the best solution would be to provide thorough education about the Constitution.


FUNADA Hajime (Liberal Democratic Party)

>> Articles 19 and 20 are the wellspring of the Constitution's guarantee of human rights, and this guarantee is unconditional as long as it remains within the realm of the mind. But I believe that, rather than protecting any belief or ideology whatsoever, we should set certain limits, as in Germany's "fighting democracy." Further, I suggest that we should establish a provision to that effect.

>> Even if one grants that the Constitution allows the freedom to refuse to display the national flag or sing the national anthem, shouldn't a certain level of order be maintained? The question then arises as to whether we should make explicit provision for this in the Constitution, or rely on the implementation of existing provisions, or on judicial precedent. But, whichever approach we take, shouldn't even freedoms such as the freedom of thought and conscience have certain limits?


DOI Takako (Social Democratic Party)

>> Many of the informants who have appeared before this Commission have clearly taken the stance that, before advocating constitutional revision, we should put the spirit of the existing Constitution into practice. Some have expressed the view that it is behind the times and should be revised, but, as Mr. TSUJI has said, what we really need to do is to put the Constitution into practice.

>> Efforts are required on the part of public officials to understand the obligation to respect and uphold the Constitution that they are placed under by Article 99, and to act appropriately.


MATSUNO Hirokazu (Liberal Democratic Party)

>> The Constitution's provisions on the Emperor system allow for the system to include religious elements such as traditional and customary ceremonies, and I regard this as an exception to the principle of religion-state separation set forth by the Constitution. Isn't it possible to affirm the expenditure of public funds for ceremonies conducted by the Imperial Household if they are viewed in this light?


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

>> The controversy surrounding the Yasukuni Shrine and related issues could be seen as a fruitless debate based on misconceptions. It is my position that the Constitution should be allowed to evolve. Shouldn't we seek a greater depth of interpretation by the courts and also encourage a more active national debate on these issues?

>> While I do not take the position sometimes known as "In the beginning was constitutional revision," I would like to suggest the possibility of adding a provision concerning the "purpose and effect" standard to the second sentence of Article 20, Paragraph 1.


NAKAYAMA Taro (Chairman)

>> While the Constitution stipulates the obligation of public officials and others to respect and uphold the Constitution, at the same time, Article 96 provides for constitutional amendments. Anyone who defends the Constitution must also defend Article 96.

> DOI Takako (Social Democratic Party)

>> Article 96 demonstrates that the Constitution as it stands is not an immutable and eternal code. However, it is a provision for "amending" the present Constitution, that is, changing it for the better, not for the worse.

>> Since the passage of the Law Concerning Measures to Deal with Situations in Areas Surrounding Japan, a spate of laws that would not have been permissible under the traditional interpretation of the Constitution has been passed. Many members of the public distrust these developments. Further, a majority are opposed to changing Article 9.

>> Given the situation that the existing Constitution is not being put into practice, I do not think that changing it will result in a better Constitution than the one we have now.

> NAKAYAMA Taro (Chairman)

>> When I was appointed Chairman of this Commission, I declared that we would maintain three principles in our debates: (a) the resolve that Japan will never again become an aggressor nation; (b) the sovereignty of the people; (c) the guarantee of fundamental human rights.

>> I think that the real danger lies in revising the Constitution by means of interpretation.

>> In my view, the passive nature of the Supreme Court's judgments of constitutionality is a problem.

>> We should enact a law concerning national referendums for ratifying constitutional amendments, in part so as to protect the Constitution.

> DOI Takako (Social Democratic Party)

>> Article 96 is predicated on the proposed amendments being compatible with the direction anticipated by the Constitution.


ONO Shinya (Liberal Democratic Party)

>> The series of laws including the Special Measures Law for Iraq was passed in accordance with constitutional procedures by the Diet, whose members were elected in accordance with constitutional procedures. It makes no sense to cite these laws as a basis for the claim that we are moving to change the Constitution for the worse.

>> While there may be a range of opinion on the subject, it is clearly the duty of the Diet to enact a law concerning national referendums to ratify constitutional amendments.