Subcommittee on Guarantee of Fundamental Human Rights (Third Meeting)

Thursday, April 1, 2004

Meeting Agenda

Matters concerning the guarantee of fundamental human rights (the public welfare, with special reference to reconciling it with the freedom of expression and academic freedom)

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

Informant

Members who put questions to Prof. MATSUMOTO

Main points of Prof. MATSUMOTO's statement

1. Introduction

>> The controversy over the relationship between human rights and the public welfare has been a battle over how to define the issue. In the commonly accepted definition, it is posed as a binary opposition: human rights versus the public welfare. Here, in order to clarify the debate, I will pose the following two questions.

2. Question 1: Can human rights be restricted by the public welfare?

[1] In its decision on the Lady Chatterley's Lover case, the Supreme Court ruled that even fundamental human rights are not absolute and unlimited, but are subject to limits for the sake of the public welfare.

[2] Legal scholars generally received this opinion favorably, but there is some dissent. The dissenters question whether it is correct to present the issue as a binary opposition. For example, intimidation and fraud are punishable under criminal law, but can we say that there exists a basic constitutionally guaranteed "freedom of intimidation" or "freedom of fraud," which is then restricted by the public welfare? Unless we clearly distinguish what is and what is not a human right, we will end up with a nonsensical structure in which acts having nothing to do with human rights are restricted by the public welfare.

>> However, in distinguishing what is and what is not a human right, care is needed in defining the rights concerned, as how they are defined can determine the extent to which they are guaranteed. For example, at one time the Supreme Court held that "freedom to make defamatory statements" did not fall under the category of guaranteed freedoms of expression, but the Court later changed its position and held that this does fall into the category of freedom of expression, but that it is necessary to reconcile it with other human rights.

>> Consequently, there are some acts of expression that cannot be called the exercise of a constitutional right, such as intimidation or fraud, but only those acts of expression that are obviously not protected by the Constitution should be excluded from the scope of the constitutional guarantee of human rights. Where there is any doubt, a constitutional right should be presumed to exist.

3. Question 2: What is "the public welfare," which limits human rights?

[1] The Supreme Court has not answered this question as such. It has gone no farther than providing ad hoc answers in specific cases.

[2] Furthermore, these days, the question is no longer posed in the same terms. Reconciling the public welfare and human rights is a delicate business, and it is not enough to ask "What is the public welfare?" The question is becoming instead, "How should we go about reconciling the public welfare and human rights?" I think that recasting the issue from a binary opposition, i.e., the limitation of human rights by the public welfare, to "What restrictions are a legitimate means to a legitimate end?" enables us to consider the question in detail, and it then becomes possible to respect human rights while placing importance on the public welfare.

[3] To cite some areas where there is controversy over whether rights are being restricted for a legitimate end, an example from the viewpoint of reconciliation with the human rights of others is the penalization of defamation of character; that is to say, the right to one's good name is considered a protected legal interest. An example of protection of the public good that is not reducible to the human rights of others is the restriction of obscenity to maintain public order in sexual matters and a minimum level of sexual morality. However, it is necessary to make the goal of restriction as clear and specific as possible, because as long as it remains abstract it cannot be judged whether it is legitimate.

[4] When it comes to the legitimacy of the means of restriction, first, legitimacy is lost as soon as censorship is practiced, because censorship is prohibited by the Constitution. The legitimacy of other means of restriction should be judged in terms of the usefulness of the means in achieving the goal, whether the means is the minimum necessary, the balance between interests gained and interests lost, and so on.

4. Conclusion

>> Who is to answer these questions? Apart from those in whom the right to enact (or amend) a constitution is vested, possible candidates are the legislature, the executive, and the courts. Traditionally, academic debate has centered on the courts as the site of reconciliation of human rights and the public welfare. However, I want to underline the significant fact that it is the legislature which reconciles human rights and the public welfare in the form of laws.

Main points of questions and comments to Prof. MATSUMOTO

HIRAI Takuya (Liberal Democratic Party)

>> I understand that not every form of expression is entitled to the constitutional guarantee of freedom of expression, but where do the borders lie?

>> Isn't it a problem that publications such as newspapers and magazines are more loosely regulated than broadcast media? I see no great difference between newspapers and broadcast media, either in their technology or in their social impact. In my view, broadcasting should be deregulated, and I would like to ask what questions should be studied when deregulating broadcasting.

>> What criteria should apply in proceedings for obtaining a provisional court injunction to ban a publication before its release?

>> Human rights-related problems such as invasion of privacy have accompanied the growing use of the Internet as a means of expression. I would like to ask how this has affected the debate among constitutional scholars. Also, if we were to consider regulating this form of expression, what differences could result compared to conventional restrictions on freedom of expression?

>> With regard to the state reserving the right to impose restrictions by law, I would like to ask about (a) its significance as a principle in the restriction of human rights, and (b) the state of the debate in Japan over this principle.

>> You emphasize the role of the legislature in the restriction of human rights, but, given that the present state of parliamentary democracy and majority rule is under criticism, what should that role be?


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

>> In issuing an injunction against publication of an issue of the magazine Shukan Bunshun, the court ruled from three viewpoints: "the public nature of the matter," "the public good," and "the gravity of the harm that would result from publication and the difficulty of restoring the status quo." I would like to ask if these criteria alone are sufficient.

>> I think that it may be difficult to reach a decision in issues concerning the right to privacy and freedom of expression, such as the Shukan Bunshun case, unless the right of privacy is stipulated explicitly in the Constitution. Do you agree?

>> You emphasized the role of the legislature, stating that it should determine in the first instance what constitutes the public welfare, and I agree. However, in my view, the legislature cannot decide these questions appropriately unless concrete provisions on such matters as the right of privacy are set forth in the Constitution. Do you agree?

>> There is a need to consider whether the human rights provisions in the existing Constitution are sufficient when measured against a global standard. If necessary, perhaps concrete provisions on human rights should be set forth in the Constitution, as these would also serve as criteria for determining to what extent the legislature can restrict human rights.


OTA Akihiro (New Komeito)

>> What we have today, and will continue to have in the future, is an info-communications society in which people verbalize their ideas more fully than they used to do in the era when the Constitution was enacted. Accordingly, I think that there should be a broad guarantee for each individual human right, and that it is important to set forth the human rights provisions in the Constitution more clearly and in a balanced way. What are your views in this regard?

>> Until now, we have been at the stage where "new human rights" were finally materializing as they gained judicial recognition. In future, we can expect to see more related legislative measures, and I think we should make concrete provision for "new human rights" in the Constitution as a basis for these legislative measures. Do you agree?

>> I think it is important to make explicit provision for concrete human rights while ensuring balance among the human rights provisions, e.g., strengthening the freedom of expression while adding the right to privacy. What are your views in this regard?

>> I believe that the time is approaching when, as a third axis in the field of human rights (i.e., neither rights nor duties), we will need provisions from the viewpoint of "responsibilities." Do you agree?


YAMAGUCHI Tomio (Japanese Communist Party)

>> You commented that the Constitution of Japan provides an ample catalog of human rights. Could this be said to have its roots in critical reflection on the Meiji Constitution's failure to recognize fundamental human rights?

>> Case law and constitutional scholars have begun to recognize, for example, environmental rights, based on Articles 13 and 25. I believe that human rights in the Constitution of Japan have been enriched by such movements, which are part of the development of society. Would you like to comment on this point?

>> In early court decisions, "the public welfare" functioned as a doctrine justifying restriction of human rights. In recent years, has the Supreme Court come to see it as requiring mutual reconciliation with human rights? Also, what is the accepted view among scholars?


DOI Takako (Social Democratic Party)

>> In my view, human rights must be recognized as essentially universal and not subject to restriction. "The public welfare" is the concept which the state employs in adjusting conflicts among human rights, and it is a fundamental principle that human rights must never be restricted in the interests of State power. How do you view the public welfare?

>> Any restriction of human rights must have the law as its basis. Under Article 5 of the Cabinet Law, which may be unconstitutional, the Cabinet sponsors a great many bills, but in light of Article 41 of the Constitution, which stipulates that the Diet is the "sole law-making organ," I believe that, properly speaking, legislation to guarantee human rights must take the form of a Member's bill. Do you agree?

>> In April 1997, the Diet enacted the revised Law on Special Measures for Land Expropriation for U.S. Forces in Japan. The government explained that this law limits property rights for the sake of the public welfare, but one is forced to conclude that by "the public welfare" they meant maintaining the Japan-U.S. Security Treaty. The law is an exceptional-case law as provided for by the Land Expropriation Law, but, because of Article 9, the latter does not list "military purposes" among the purposes for which land may be used or expropriated, and the Special Measures Law therefore is not consistent with the pacifist principles of the Constitution; furthermore, in restricting the guarantee of fundamental human rights in order to maintain the Japan-U.S. Security Treaty, the law is clearly based on the doctrine that treaties take precedence over the Constitution. What are your views on these points?


MATSUNO Hirokazu (Liberal Democratic Party)

>> Environmental rights, the right to privacy, and the like have been much discussed lately, but did these rights always exist within the spirit of the provisions of the Constitution of Japan? If human rights that were not foreseen within the spirit of the Constitution, such as reproductive rights, are to be added to the Constitution, what sort of approval process must they go through?

>> How do you view the fact that "the public welfare," which sets limits on human rights that are essentially inviolable, is influenced in its contents by the values of each successive era?


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

>> Doesn't the "double standard" doctrine, which applies the standard of rationality more rigorously in deciding the constitutionality of laws that restrict spiritual rights compared to those that restrict economic rights, lead to a ranking of human rights? Since I believe that human rights cannot be ranked by value, I think we should approach this question not with a double standard but with two kinds of standards. Would you like to comment?

>> Would it be correct to say that, when the Supreme Court ruled in 1975 that the restriction of the location of pharmacies under the Pharmaceutical Affairs Law was unconstitutional, it added "strict rationality" as an intermediate level between the two criteria of the "double standard"?

>> Freedom of expression is said to cover the entire process of distribution of information, which begins with the right to know. It seems to me that the meaning of "the right to know" needs to be clarified, along with its essential nature and its limits. If we were to make explicit constitutional provision for the right to know, in what status do you think it could be incorporated, both in its aspect as a civil liberty and in its aspect as a beneficiary right?


FUNADA Hajime (Liberal Democratic Party)

>> Apart from references to "the public welfare" in the general provisions of Articles 12 and 13, the only other explicit references occur in Articles 22 and 29, which deal with economic rights. Would I be right in thinking that the framers of the Constitution deliberately refrained from referring to the public welfare in the provisions on spiritual freedoms because these are fragile rights?

>> The restrictions on the freedom of the press are generally seen as being relatively lenient toward the print media and stricter toward the broadcast media. When the Broadcast Law was enacted, broadcasters were a fairly limited group, but today they are far more numerous due to the expansion of broadcast media. Hence, there is debate over whether the restrictions on broadcasters should be relaxed, and also over whether there should be tighter regulation of the print media, which presently have free rein. I would like to hear your views on these controversies.

>> I would like to comment on the secrecy of communications in relation to the current expansion of cyberspace. Technological advances have replaced the traditional concept of one-on-one communications with the possibility of many-on-many, and it seems to me that, at the same time, there has been a qualitative change in the concept of secrecy of means of communication. In light of this fact, I suggest that the provision concerning "the secrecy of any means of communication" needs to be reworded. What are your views in this regard?

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

FUNADA Hajime (Liberal Democratic Party)

>> I found much food for thought in Prof. MATSUMOTO's comment that we should not judge whether to make human rights restrictions stronger or weaker depending on which "providers" we are dealing with, e.g., broadcasting, the press, or communications, but that the emphasis should be on which human rights ought to be protected.

>> In the realm of academic freedom, recent progress in the biosciences could lead to situations in which the public welfare must be emphasized in the face of a foreseeable harm to human dignity, life, or health. Hence, we need to continue discussing carefully how best to protect the public welfare and the public good.

>> At the community level, I have noticed a contest taking place between measures for the public welfare, such as banning litter or installing surveillance cameras to maintain public safety and order, and the human rights of citizens. It is important that we understand this as a contemporary issue and that we discuss protection of the public welfare and the maintenance of human rights with an orientation toward broad and effective recognition of the public welfare.


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

>> The phrase "academic freedom" in Article 23 is considered to refer to a freedom with some depth; for example, it is thought to include institutional guarantees such as the autonomy of universities. But there are no explicit provisions on this, and the debate on university autonomy seems to have died down recently as a result.

>> I see a need to actively pursue an in-depth debate on university autonomy, including the jurisdictional question of the extent of police authority on university campuses, and the right of university faculty to engage in free speech.

>> Issues relating to university autonomy, such as the extent of police authority on university campuses, and the question of what entity autonomy is vested in, have arisen because of confusion over how the Constitution should be interpreted. To prevent further confusion, if we are going to make explicit provision for "university autonomy" in the Constitution, we should consider stipulating (a) the freedom of persons at universities to teach and conduct research, (b) autonomy in matters of personnel, methods, goals, and contents of research, and methods, goals, and contents of education; (c) the right of self-determination in the management of facilities and handling of finances.


ONO Shinya (Liberal Democratic Party)

>> It is necessary to discuss whether academic freedom and freedom of research can be recognized without limits, in light of the human rights violations that may result from scientific and technological progress, such as the violation of the right to live that resulted from the development of the atom bomb, and the fact that advances in information technology have made it easy to violate the right to privacy.

>> In connection with rights violations, Prof. MATSUMOTO advocated that the debate on restrictions of human rights be carried on in the legislative forum, but it is extremely difficult to reconcile rights by means of laws in this day and age, when so many different rights are being asserted, and I doubt whether it is in fact possible.

>> In reality, it is the judiciary that reconciles rights, but it is problematic that the only way to reconcile rights is to go through complicated judicial procedures. There is a growing need to build a simpler mechanism for reconciling rights into society.

>> The rights of individuals are in danger of being infringed when the criteria for defining a public person or a private person are unclear. One area of contention in this regard is whether invasion of privacy is permissible by treating an individual in the capacity of a public person while he or she is engaged in private activities.


DOI Takako (Social Democratic Party)

>> In the past, "the public welfare" has been confused with "maintaining order," but these are two entirely different things. On the administration's side, there is a notion that "maintaining order" is all about restricting human rights. Listening to Prof. MATSUMOTO's remarks, however, it became clear to me that "the public welfare" is a concept that does not conflict with human rights but instead concerns how best to respect them.

>> Recently, this Commission has heard many of its informants state that there is no need to revise the Constitution, that what we really need are ceaseless efforts to understand the Constitution correctly and put it into practice. I feel it is important that we respect the opinions of these informants.


NAKAYAMA Taro, Chairman

>> There have been great advances in science and technology since the Constitution was enacted, and they are having a major impact on society, but there are currently only eight judges with a background in the sciences. This is a serious problem with respect to the courts' ability to decide questions of constitutionality.

>> Today, I was strongly reminded of the need for the legislature to consider scientific and technological progress in relation to the Constitution.