Meeting Agenda
Matters relating to the Constitution of Japan
1. SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
reported on the Open Hearing held in Hiroshima on March 15, 2004.
2. A report was heard from the chairman of each Subcommittee; each report was followed by free discussion.
Report by the Chairman of the Subcommittee on Security and International
Cooperation, and free discussion
Integration of nation-states, accession to international organizations,
and the accompanying transfer of sovereign powers, with special reference
to the European Constitution, the constitutions of EU member states, and
an "EU force"
Report by Subcommittee Chairman KONDO Motohiko (Liberal Democratic Party) (main points)
>> Members of the Subcommittee expressed the view that it is necessary to set up a regional security system in Asia, and noted the need for policy-makers to think through how to create a common basis for security and bonds of trust through economic and other ties, together with such questions as how regional security is related to collective security and the right of collective self-defense. There were also comments on the need in Northeast Asia for a security dialogue grounded in pacifist principles, and on the fact that NATO, which endorses the right of collective self-defense, was founded against the background of the Cold War.
>> The European experience cannot be translated directly into a model for other regions, but in our efforts to deal with many issues, including security, terrorism, international crime, and energy and environmental problems, there are lessons to be learned from the EU's approach of handling problems which a nation-state cannot cope with alone, while also creating political stability in the region.
Free discussion
KUSUDA Daizo (Democratic Party of Japan and Club of Independents)
>> As the EU proceeds with steps such as adopting a single currency and enacting a European Constitution, a transfer of sovereign powers is taking place. In contrast to the grand concept of the EU, Japan lacks a strategy, and we should therefore lose no time in giving thought to our relationships with China, the Republic of Korea, and Southeast Asia.
>> It is difficult to rely solely on the Japan-U.S. Security Treaty in dealing with issues common to all Asian nations, such as fears of nuclear proliferation and the spread of weapons of mass destruction. I see a need for collective security in Asia. Some of Japan's sovereign powers might be limited or transferred in the process of establishing it, and we could make explicit provision in the Constitution for this to happen, with the reservation that it would be done "in order to achieve peace and justice."
>> To make collective security in Asia a reality, we should start, like the EU, with the creation of bonds of trust by taking steps toward economic integration, such as establishing free-trade areas, and by tackling environmental and energy issues. To ensure the diffusion of common ideals, it will also be important to address human rights issues.
NAKATANI Gen (Liberal Democratic Party)
>> We should study the possibility of creating a collective security organization in Asia, so that Japan can expand its foreign policy options instead of relying solely on the Japan-U.S. Security Treaty.
>> There are still vestiges of the Cold War structure in Asia. We should begin by forging ties of cooperation, starting with economic integration, as the EU did, and then extending these ties to the area of security. The six-party talks on the North Korean question could be expanded to address security issues in general, as a step toward building a security organization.
>> Because Japan cannot exercise the right of collective self-defense, we will be unable to fulfill our obligations and our role as a nation once a collective security organization is established in Asia. We should provide explicitly in the Constitution for the right of collective self-defense, not only to enable cooperation with the United States but to increase our regional security options in Asia.
SAITO Tetsuo (New Komeito)
>> We should also consider international cooperation in "big science," such as ITER or the International Thermonuclear Experimental Reactor, viewing such programs as a fund of knowledge common to all humanity.
>> While each EU member nation has its own energy policy, the EU as a whole seems to have achieved compatibility among these policies. By comparison, East Asia is lagging behind in discussing a system to secure energy supplies in the region as a whole.
YAMAGUCHI Tomio (Japanese Communist Party)
>> I was particularly struck by Ambassador ZEPTER's comment that the EU should be seen as global or universal in some respects but also specific to the European experience, and by his comments that (a) Europe has addressed the issue of war responsibility, including postwar reparations; (b) the EU member nations are working toward improving human rights, having set common conditions; and (c) the EU member nations are pursuing a dialogue on security. I think this raises the question of how we should view the European experience by comparison with the situation in Asia, where we have yet to come to terms with the war of aggression under militarism that is part of our history, and with illegal acts such as the abductions by North Korea.
>> Instead of viewing security in Northeast Asia in military terms, we should create a framework for peaceful security talks. The establishment of the six-nation forum is a positive move.
>> Considering the historical process by which Japan joined the United Nations with the reservation that it would not take part in international military activities, it is essential to stability in Asia that Japan maintain the stance it adopted when the Constitution was enacted, that is, the stance that Article 9 is fundamental.
>> At the Open Hearing in Hiroshima, I was moved by the speakers' desire for peace, and I had a real sense of the power of the Constitution in daily life.
FUNADA Hajime (Liberal Democratic Party)
>> European integration is founded on the lessons of past wars, and I hope that, in order to overcome this legacy, every member nation will ratify the European Constitution which is now in the process of being adopted.
>> Although there are differences among the Asian nations in their constituent elements, it is important to stability and development in Asia that we make regional integration and cooperation a reality. We should build trust through discussions, especially in the ASEAN Regional Forum, and we should also make maximum use of the current six-party talks on the North Korean question.
>> One major issue is how we should view our relationships with the United States and China. The right of collective self-defense and collective security should be set forth in the Constitution in order to enable Japan to play an independent security role in Asia.
ITO Chuji (Democratic Party of Japan and Club of Independents)
>> In light of the EU's success in prioritizing economic integration over security cooperation and thereby achieving the formation of a common market and a single currency, in Northeast Asia we should forge relationships of trust based on economic ties, and then create a security structure with these relationships as a basis.
>> Japan should work to overcome national differences in conditions and establish an economic bloc and security structure in Asia.
SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
>> One speaker at the Hiroshima Open Hearing commented that the pursuit of peace is a means to an end, but I believe that the pursuit of peace is an end in itself. Japan should create a system that is able to protect the people, in light of the fact that, while defense of national borders within the EU is becoming meaningless, incidents such as the terrorist bombings of Spanish trains still occur in the region.
>> I was deeply impressed by Ambassador ZEPTER's explanation that the draft European Constitution contains detailed provisions on the right to privacy and protection of personal information because they are an aid to public understanding. The draft constitution also provides for an independent human rights body and an ombudsman, and this point made me think about how institutions can best be created to provide a concrete guarantee of human rights.
TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)
(In connection with the comment by Mr. SAITO)
>> Talks have already begun among the nations of East Asia on cooperation
with regard to oil reserves.
(Comment)
>> In studying civilian control in Japan, which takes the form of
prior approval by the Diet, it is interesting to note that Germany's Federal
Constitutional Court has ruled that German forces can be deployed outside
the NATO region but that the prior approval of the Bundestag is required
on each occasion.
DOI Takako (Social Democratic Party)
>> The fact that Europe has pursued integration after learning the lesson "never war between us" is relevant in thinking about security in Northeast Asia. The world is moving toward eliminating threats and establishing multilateral cooperation, and the European Union is one example of this trend.
>> Japan should lead the effort to establish a cooperative structure in Northeast Asia. We should shift from bilateral treaties to multilateral cooperation as a basis for security. I see superpower unilateralism as a hindrance to such efforts toward cooperation.
>> Multilateral cooperation should be promoted first in the economic and environmental spheres. Among energy and resource issues, it is very important how the nuclear question is dealt with. At the Hiroshima Open Hearing, I was impressed by a speaker's comment that the spirit of Hiroshima lies in the abolition of nuclear weapons, and that one cannot distinguish "good" and "bad" nuclear arms.
>> We should encourage the establishment of a Northeast Asian nuclear-free zone. The nonnuclear nations should work together to promote this concept.
>NAKATANI Gen (Liberal Democratic Party)
>> Multilateral cooperation and diplomatic efforts are important, but peace can sometimes be difficult to achieve by these means. I believe that we must also take steps to deter and collectively prevent security threats in East Asia, such as the spread of weapons of mass destruction, terrorism, and incursions by unidentified vessels. Being unable to achieve our goals because we are not permitted to exercise the right of collective self-defense is not a desirable position to be in.
>> While maintaining its partnership with the United States, Japan should act as a bridge between the United States and the nations of Asia and should take the initiative in joint efforts, e.g., by making recommendations on what form a collective security system in Asia should take.
>DOI Takako (Social Democratic Party)
>> I contend that nuclear deterrence gives rise to new threats, thereby leading to an arms race. The double standard of "good" and "bad" nuclear weapons has created a dangerous situation.
>> There is a contradiction in endorsing nuclear deterrence while calling for the abolition of nuclear weapons. We cannot hope to abolish nuclear weapons as long as we rely on this position. It is abolition that matters, and if we are to achieve that goal we cannot recognize nuclear weapons as a deterrent force.
>NAKATANI Gen (Liberal Democratic Party)
>> The abolition of nuclear weapons will never be achieved through cooperation alone. The nuclear powers will not give up their arsenals unless compelled to do so.
>> The reality is that Japan's only recourse to protect the nation is to depend on American nuclear deterrence and military power. If we are to improve that situation, we will need deterrent force and pressure in addition to multilateral cooperation.
>YAMAGUCHI Tomio (Japanese Communist Party)
>> Mr. NAKATANI's line of argument could be called "the right of collective self-defense as the answer to every problem." In other words, on a wide range of issues involving maritime security and other concerns, his conclusion is that we must possess the right of collective self-defense. Japan will be making a mistake if it adopts this kind of thinking. We should think about finding a joint Asian approach to each one of these problems.
>TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)
>> The Preamble of the Constitution proclaims the principle of international cooperation, but the Japan-U.S. Security Treaty does not include a provision of this kind. Mr. NAKATANI has previously acknowledged that the principle of international cooperation is a higher concept than the Japan-U.S. relationship, but Foreign Minister KAWAGUCHI holds that the bilateral Security Treaty comes first, followed by the principle of international cooperation.
>> It is clear that Japan has been under the protection of the U.S. nuclear umbrella, and the public should be honestly informed as to whether the three nonnuclear principles have been observed. I believe that, as the only nation ever to suffer nuclear attack, Japan should abide by the three nonnuclear principles as national policy.
>> In pursuing diplomacy, Japan should firmly establish what principles it must uphold and what it cannot concede.
>KONO Taro (Liberal Democratic Party)
>> The nuclear weapons possessed by the United States cannot be said to be entirely "good," nor can it be said that Japan's security is completely guaranteed by depending on America's nuclear deterrent force. Japan should plan for security that does not depend on nuclear deterrence. Also, the public should be informed of any matters that were kept secret during the Cold War, so that we can carry on a debate about the future.
>NAKATANI Gen (Liberal Democratic Party)
>> It is true that the Constitution proclaims international cooperation, but at the time of its enactment Japan was under American occupation and efforts were under way to create a mechanism for international cooperation. The government has indicated its firm intention to maintain the Japan-U.S. alliance until the United Nations becomes fully functional, and we should first take steps to bring that about.
>> Japan is under the U.S. nuclear deterrent umbrella because its security is considered to have two components: the minimum necessary capacity for self-defense, supplemented by the Japan-U.S. Security Treaty. If Japan is to become truly independent, we should recognize the right of collective self-defense and collective security.
>OIDE Akira (Democratic Party of Japan and Club of Independents)
>> It does not seem to me that the debate on how we would respond to nuclear attack is based on a grasp of the realities, including the fact that such facilities as the Defense Agency, nuclear power plants, and petroleum tanks are unprotected from nuclear attacks. We should take these realities into account when we discuss defense policy.
Report by the Chairman of the Subcommittee on Ideal Constitution as Supreme
Law, and free discussion
Systems of direct democracy
Report by Subcommittee Chairman YASUOKA Okiharu (Liberal Democratic Party) (main points)
>> I think there was consensus among all the parties that systems of direct democracy are systems in which the sovereign people express their will directly, and that these systems have functions which complement parliamentary democracy. There were both positive and negative views on the introduction of a system of local referendums or similar measures, and opinion was also divided over whether this would require a constitutional amendment.
>> The problem of declining voter turnout in national elections was discussed in relation to various systems of direct democracy. We reaffirmed the importance of discussing questions that have a bearing on the essentials of the Constitution, such as questions concerning what form popular sovereignty and democracy should take, of which this issue is one example.
Free discussion
OIDE Akira (Democratic Party of Japan and Club of Independents)
>> Listening to Prof. IGUCHI's reply to my question about how the system of constitutional review relates to sovereignty of the peuple or nation, I felt that, under a Constitution that declares respect for the individual in Article 13, we will not tend toward an extreme form of sovereignty of the peuple.
AKAMATSU Masao (New Komeito)
>> Listening to Chairman NAKAYAMA and Mr. YAMAGUCHI exchange views on Article 96 in the Subcommittee, I was reminded of a point that was made to the House delegation dispatched to survey the constitutions of European nations in 2000, of which I was a member. The writer Ms. SHIONO Nanami urged us to take up the matter of a national referendum law related to Article 96 before discussing constitutional revision.
>> I believe that a national referendum law related to Article 96 is the first question that we should take up after completing the current debate on the realization of constitutional ideals, including the possibility of constitutional revision.
FUNADA Hajime (Liberal Democratic Party)
>> I thought at first that there was a trade-off between representative and direct democracy, but after listening to Prof. IGUCHI's comments and the discussion in the Subcommittee, I came around to the view that they can be treated as mutually complementary.
>> Parliamentary democracy cannot be said to be all-powerful; for example, there is a disconnect between the debate among political parties and public opinion in general. It is therefore important to incorporate direct democracy into the Constitution as a complement to parliamentary democracy, in order to ensure the sound future development of democracy in Japan.
>> We will need to study how to deal with the problems associated with national referendums, such as declining voter turnouts when referendums are held frequently, the threat to recourse to referendums, their use as plebiscites on the choice of government, and the molding of public opinion by an "initiative industry."
>> We should continue discussing how to put the Constitution into practice and how to overcome its dissociation from the real world, but the fact that no institutional guarantee has yet been put in place for national referendums to ratify constitutional amendments is due to negligence on the part of the Diet, and I feel responsible for this failure. In future, we should pursue debate on this point.
YAMAGUCHI Tomio (Japanese Communist Party)
>> I think that the main emphasis of Prof. IGUCHI's statement was on putting the ideals of the Constitution into practice.
>> I think that Prof. IGUCHI wanted to emphasize the following points: while the Constitution has representative democracy as its basis, it also includes a framework for direct democracy, such as the national referendums provided for in Article 96 and popular review of appointments to the Supreme Court; it is not a question of one being subordinate to the other as both work in the same direction, i.e., putting the constitutional ideal of popular sovereignty into practice.
>> As I understand it, Prof. IGUCHI did not broach the issues involved in Article 96 because he holds that what is needed at this time is not constitutional revision but realizing the ideals of the existing Constitution.
>> In my view, one cannot build an argument by interpreting the lack of a law for national referendums as provided for in Article 96 as negligence or legislative nonfeasance by the Diet, because legislative nonfeasance could only be claimed if there had been a violation of a right of the people for which the injured party was entitled to state compensation, and in the six decades since the Constitution was enacted, the state has not violated the right to amend it.
>> I see no need to enact a law at this time, because the issue in regard to Article 96 is how the principle of popular sovereignty should be concretely realized in the form of a right to amend the Constitution.
>> All the political parties are currently putting forward proposals on the question of constitutional revision, but I am opposed to any national referendum bill that is submitted in connection with these proposals.
>NAKAYAMA Taro, Chairman
>> My intention in raising the issue of a national referendum law related to Article 96 was this: I want the public to be confident that it is they who possess the sovereignty that is the basis of democracy.
GENBA Koichiro (Democratic Party of Japan and Club of Independents)
>> We should make clearer provision in the Constitution for the authority and responsibilities of the Prime Minister, in order to maintain the parliamentary Cabinet system and give full scope to its inherent functions.
Report by the Chairman of the Subcommittee on Ideal Government and Organizations,
and free discussion
Human rights protection commissions and other quasi-judicial bodies; the
ombudsman system
Report by Subcommittee Chairman KINOSHITA Atsushi (Democratic Party of Japan and Club of Independents) (main points)
>> The main views expressed were as follows: there is a need to establish a parliamentary ombudsman; provision should be made for this in the Constitution; before doing so, we should take steps to fully utilize the existing administrative counseling system and to strengthen the functions of the administrative oversight committees of both Houses.
>> A wide range of views was expressed on such matters as the constitutional status of an ombudsman, whether special and local ombudsmen are necessary, matters that will require attention in introducing an ombudsman, how the office will be related to the information disclosure system, the ideal form of an ombudsman's organization, and the possibility of excluding partisanship from appointments to the office.
>> I feel that further in-depth, comprehensive debate on this subject is needed, especially in light of the fact that whether to introduce an ombudsman system is a controversial question in modern administrative states.
Free discussion
NAGAOKA Yoji (Liberal Democratic Party)
>> Before introducing an ombudsman system, we should first make it possible for the Diet to maintain a more effective check on the executive branch by further improving the deliberations of the House of Representatives' Committee on Audit and Oversight of Administration and the House of Councillors' Committee on Oversight of Administration, e.g., by strengthening the functions of these committees.
>> Because it costs a great deal of money and effort to create a new system, before introducing an ombudsman, we should ascertain whether the system of administrative counselors is functioning adequately and, if necessary, supplement and improve it.
>> We should proceed with caution in introducing an ombudsman system at the national level, since the public interests for which the administration is responsible at this level can generally be considered far more important than those at the local level, and also because we should first take steps to fully utilize and improve the Diet's administrative oversight committees.
>> If we introduce an ombudsman system in the future, I think that a parliamentary ombudsman would be appropriate, but we will need to consider whether it is enough simply to enact a new law or whether provision should be made in the Constitution, while consulting examples of constitutional provisions in other countries.
>> If an ombudsman system is to succeed, we must ensure that the public understands exactly what an ombudsman is. It will be necessary to stress that, in this case, it is not the same as what the Japanese public has come to understand by the term "citizen ombudsman."
>> It is important to strike a balance between individual rights and the public good. Even if an ombudsman system is introduced, it should operate in such a way that it seeks optimal solutions from a broad perspective that encompasses not just the rights of the individual who brings a complaint, but also the public interests for which the administration is responsible.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Prof. UTSUNOMIYA stated that the constitutional authority for an ombudsman is twofold, as it is to be found both in the right of the legislature to investigate the state affairs and in the right of the sovereign people to petition as an exercise of their sovereignty. We should view this idea positively and take steps to make it a reality.
SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)
>> I see no need for an ombudsman, especially from the point of view of cost, as long as the parliament and existing systems such as administrative counseling are functioning adequately. However, it would certainly be worth considering the introduction of special ombudsmen in fields that require specialized knowledge, such as the police and medical care.
>> As for the constitutional status of an ombudsman, it would be appropriate to introduce the office by legislation first, and then make provision for it in the Constitution once it has gained public recognition.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> In view of the trend toward administrative states that has been ongoing since the late 20th century, keeping a check on the administration has become a challenge. However, it is not always appropriate to take the framework of the separation of powers, which arose together with states based on popular sovereignty, as the basis for maintaining this check. In the 21st century, in accordance with the principle of complementarity, which says that what can be done by local governments should be done at that level, we need to think about governance based on communities with local roots. Further, ombudsman systems would provide an effective check on those powers that remain at the national level, especially coercive powers such as those of the police and prisons.
FUNADA Hajime (Liberal Democratic Party)
>> When they hear the word "ombudsman," most members of the public think of what have come to be known in this country as "citizen ombudsmen." Although the latter have achieved results, both the administration and the public regard them with some wariness.
>> It will be important to carry on debate in political forums and thus ensure popular recognition of ombudsmen in the true sense, that is, public ombudsmen.
>> The existing system of administrative counselors is similar in nature to an executive ombudsman, and I hope that it will be improved and strengthened. However, there are limits to the executive branch's ability to maintain a check on itself. As Prof. UTSUNOMIYA noted, introducing a parliamentary ombudsman is the preferable course.
>> The roles and functions of existing institutions such as the House of Representatives' Committee on Audit and Oversight of Administration are not adequate, and they will need to be improved and strengthened. Also, in the event that we introduce a parliamentary ombudsman, one issue will be how to secure the office's independence from the political parties.
>> As Prof. UTSUNOMIYA noted, an ombudsman can be considered as an embodiment of the right of petition (Article 16).
TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)
>> The role of an ombudsman should be viewed positively, as he or she is an expert who untangles administrative matters and makes them more readily accessible to the public, and the administration is thus able to gain the public's trust.
>> Public trust is essential to the running of an administration. Accordingly, the Democratic Party of Japan has called for the establishment of new independent administrative commissions (Article 3 commissions) with quasi-legislative and quasi-judicial functions as laid down in Article 3 of the National Government Organization Law. Article 3 commissions should be introduced in a similar way to ombudsmen. For example, the power to grant broadcasting licenses should be assigned to an Article 3 commission in order to ensure the independence of broadcast media.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> Since ombudsmen in general are said to represent control of the executive branch by the legislative assembly, the parliamentary type is preferable. Critics have argued that it would be adding a fifth wheel to a car to introduce an ombudsman as we already have a comparable system, but it is doubtful whether that system is functioning. The Human Rights Protection Bill, which was withdrawn, aimed to establish a Human Rights Protection Commission, but it seems to me that it would also be possible to establish an ombudsman, who is a third-party agency.
>> In regard to ensuring the independence of appointments, it would be instructive to look at how appointments to the existing independent administrative commissions are made, as an ombudsman could be described as a kind of independent administrative commission.
>> In my view, an ombudsman could be established by legislation, like the independent administrative commissions, but Prof. UTSUNOMIYA commented that it would be desirable to give the office constitutional status. Debate is needed in this area.
Report by the Chairman of the Subcommittee on Guarantee of Fundamental
Human Rights, and free discussion
Civil and political liberties, especially freedom of thought and conscience,
freedom of religion, and the separation of religion and the state
Report by Subcommittee Chairman YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents) (main points)
>> With regard to freedom of thought and conscience, it was suggested that certain limits should be set, as in Germany's "fighting democracy," rather than protecting absolutely any idea.
>> With regard to freedom of religion, on the one hand, the view was expressed that we should heed the lessons of history when considering issues such as visits by public officials to Yasukuni Shrine; on the other hand, it was suggested that more in-depth debate is needed, since the controversy surrounding Yasukuni Shrine and related issues could be seen as a fruitless debate based on misconceptions. It was also argued that it might be worth considering, as legislative policy, the establishment at the national level of a system similar to that which allows citizens to bring lawsuits for malfeasance against municipal authorities under the Local Autonomy Law.
>> The freedom of thought and conscience and the freedom of religion are freedoms that have a very great historical significance. They are liberties fundamental to human existence.
>> However, there remain many problems involving the freedom of thought and conscience and the freedom of religion in areas that impinge on people's lives. I would like to conduct further debate on fundamental human rights, taking into account, in particular, the actual or potential influence of the Constitution's human rights provisions on specific cases.
Free discussion
ONO Shinya (Liberal Democratic Party)
>> The glorification of freedoms and rights in postwar Japan has led to an excessive emphasis on liberty in relation to conduct, which is the expression of an inner state. Thus, a tendency has developed to view whatever is in one's own interest as good and whatever is not as bad. The proper attitude, however, is to seek social harmony by exercising self-control.
>> Applying this attitude to the issue of the Prime Minister's visits to Yasukuni Shrine, both opponents and supporters feel that their freedom of thought and religion is being violated.
>> By its very nature, this problem is difficult to solve at the level of legislation. Hence, I believe we should make clear provision in the Constitution for "self-restraint and harmony with others." At the same time, in the Preamble or elsewhere in the Constitution, we should incorporate a statement that the traditions, history, culture, and customary practices developed by our forefathers should be respected, and we should look to these to guide our judgment.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> As Mr. ONO has rightly said, we should seek social harmony by exercising self-control. But when one attempts to bring this principle into the arena of constitutional rights and freedoms, the question is how it should be stipulated and who should be the judge.
>> Why was an institutional guarantee of the separation of religion and the state established in the Constitution? The need for such a guarantee was a lesson learned from the prewar era, when the state power determined what was right and what was wrong, and as a result the freedom of religion was violated. We need to recall this lesson once again.
YAMAGUCHI Tomio (Japanese Communist Party)
>> In his statement, Prof. NOSAKA emphasized that, in discussing the text of the Constitution, it is important to identify the historical process or background that led to the existing provisions being established. I think it is important that, in this Commission's discussions, we identify the historical process and background.
>> I think that Mr. ONO's point concerns what we understand constitutionalism to be. In other words, in thinking about this question, we must distinguish the different arenas involved, such as issues between citizens in civil society, issues between the state and the citizen, and so on.
>> The Prime Minister's visits to Yasukuni Shrine are repeated visits to a specific religious institution by an official whose status is defined by the Constitution, and I believe that this violates Article 20, Paragraph 3.
>> Yasukuni Shrine, in particular, was what could be called a military religious institution before World War II, and the Prime Minister's visits to a shrine with a historical background of this kind runs counter to the spirit of pacifism set forth in the Constitution, and makes light of the need for critical reflection on the war.
>> Since the courts indicated that it might be unconstitutional for the Prime Minister to visit Yasukuni Shrine in his official capacity, the government has chosen not to identify the visits clearly as either "official" or "private." This is a sham, as anyone can see that these are visits to Yasukuni Shrine in the capacity of Prime Minister, and I believe that this is unconstitutional.
ONO Shinya (Liberal Democratic Party)
(In connection with Mr. TSUJI's comment)
>> It is only natural to take into account the historical process
and background, for example, by reflecting on the situation before the
war. At the same time, it behooves politicians to pay attention to the
state of Japanese society today, an ideal vision for that society, and
the efforts that those in government should make to achieve it.
(In connection with Mr. YAMAGUCHI's comment)
>> We must treat the judiciary's decision with due respect. However,
in the past, visits to Yasukuni Shrine by the Prime Minister and other
Cabinet ministers were a matter of course. Then, at a certain point in
time, their constitutionality was suddenly challenged.
>> If there is a national consensus that Yasukuni Shrine is important in consoling the spirits of the dead, we should not hesitate to revise the Constitution in order to resolve the Yasukuni Shrine problem.
>> It seems to me self-contradictory to proclaim obedience to the Constitution and, at the same time, oppose the enactment of a national referendum system for constitutional amendments because one suspects that its proponents aim to revise the Constitution.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> I am personally opposed to the Prime Minister visiting Yasukuni Shrine even in a private capacity, but if his visits are official then they involve a constitutional issue. Shouldn't we attempt to resolve this problem by erecting a secular national memorial to the war dead?
>> As discussed in the Subcommittee, legal challenges over the Yasukuni question were triggered when opponents made active use of the system that allows citizens to bring lawsuits for malfeasance against local authorities, and the courts decided to accept lawsuits of this type. It is not correct to view the legal challenges as having arisen "suddenly" at a certain point in time.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> I, too, feel that in recent years there has been a tendency to neglect such principles as consideration for others and respect for the elderly, and I regard the nation's future with a sense of crisis. In my view, it is certainly not acceptable to continue placing emphasis solely on rights and freedoms. However, we should bear in mind the fact that the Constitution regulates the relationship between private persons and the state.
>> We should not forget that the principle of separation of religion and the state is laid down as an institutional guarantee in order to protect the freedom of religion, and that it is intended not to regulate relationships between private persons but to restrain the actions of the state.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Visits to Yasukuni Shrine by public officials, including the Prime Minister, have not "suddenly" become a problem; they were first called into question by religious leaders and others in the early postwar years. There has also been growing overseas condemnation of these visits, which became an expanding international political issue amid Japan's efforts to establish diplomatic relations and develop peaceful ties with other nations.
>> It is only natural to want to mourn the war dead. The problem arises when this sentiment is expressed by means of visits by public officials to Yasukuni Shrine, which are problematic under the principle of separation of religion and the state. We should solve the problem by creating a separate place to mourn the war dead. I cannot at all understand the position of those who want to solve this issue by revising the Constitution.
FUNADA Hajime (Liberal Democratic Party)
>> The Constitution of Japan guarantees freedom of thought and conscience almost unconditionally, but in the Basic Law of the Federal Republic of Germany, even this freedom is subject to certain restrictions under the provisions for a "fighting democracy." We should learn from these German provisions.
>> The Prime Minister's visits to Yasukuni Shrine are a natural manifestation of sympathy for the feelings of the war dead, and I see no great problem with regard to the principle of separation of religion and the state, even when the "purpose and effect" standard is applied.
>> Attempting to evade the problem by bowing only once before the shrine, instead of three times as in the formal religious ritual, is a makeshift solution. It is also pointless to split hairs over whether the visits are official or private.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> If the Prime Minister must visit Yasukuni Shrine, I would prefer that he at least call his visits "private."
>> If there are no rules by which violations can be challenged, the guarantee of human rights becomes merely theoretical. Hence, as a matter of legislative policy, I think that we should study the introduction of a system enabling citizens to bring lawsuits for malfeasance against officials at the national level, or a system of objective litigation, or, alternatively, that we should study the introduction of a Constitutional Court.
SONODA Yasuhiro (Democratic Party of Japan and Club of Independents)
>> In the case of Japan, the "purpose and effect" standard for the separation of religion and the state is not as rigorous as the American standard on which it was modeled, as it makes allowances for socially accepted ideas and so on. I believe that it would clarify the debate over the separation of religion and the state if we were to set out the "purpose and effect" standard explicitly in Article 20, in the second sentence of Paragraph 1, after careful review of the legal precedents.
ONO Shinya (Liberal Democratic Party)
>> If "government under the rule of law" is to apply in all situations, instead of repeatedly criticizing the Prime Minister's visits to Yasukuni Shrine on the basis of imprecise arguments like the general current of thought among scholars or the court's ruling that they may be unconstitutional, we must conduct a thorough debate to determine how Japanese society should understand what is meant by "law," after first ascertaining the true sense of public opinion.
>> Mr. TSUJI noted that the Constitution regulates the relationship between the state and private persons. In pursuing this discussion further, we should not lose sight of the fact that the Constitution also contains explicit provisions on the duties of the people.
>> In Japan, the relationship between the government and the people is not adversarial. Thus, in my view, we should revise the Constitution to incorporate the idea that the government and the people make up our society together, and in so doing each enables the other to develop its strengths to the full.