Meeting Agenda
1. Matters relating to requests for attendance of informants
It was decided, after discussion, to hear the views of informants on matters
relating to the Constitution of Japan (the Constitution and the progress
of science and technology).
2. Matters relating to the Constitution of Japan
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 Ideal Constitution as Supreme
Law, and free discussion
Constitutional guarantees (especially the constitutionality trial system
and the role of the Supreme Court)
Report by Subcommittee Chairman YASUOKA Okiharu (Liberal Democratic Party) (main points)
>> Constitutional review is considered the most effective way of guaranteeing the Constitution. To increase the level of constitutional review activity, it is essential to ensure that the judiciary functions soundly.
>> Further debate is needed on a course of action for judicial reform, especially on whether to establish a Constitutional Court.
>> In future, I intend to conduct discussions with a view to guaranteeing human rights more fully. Among other points, we will consider the establishment of quasi-judicial bodies such as an ombudsman's office.
Free discussion
HAKARIYA Keikou (Democratic Party of Japan and Club of Independents)
>> The informant Prof. SASADA suggested that the organization of the Supreme Court should be reformed in order to increase the level of constitutional review activity, but I do not believe that a higher level of activity will be achieved under the existing system, which requires the existence of a concrete dispute in order for constitutional review to take place.
>> It is impossible for the Supreme Court to act as keeper of the Constitution under the existing system of constitutional review. We should establish a body charged exclusively with deciding questions of constitutionality, like a Constitutional Court.
>> The limitations of the existing system of constitutional review can be clearly seen in the broad interpretations, such as that of Article 9, which have gradually eroded the Constitution, and also in the fact that, when the Court does rule a situation unconstitutional, it is too late to be effective, as in the case of discrepancy in the weight of a single vote.
>> Japan should establish a Constitutional Court, as Germany has done, and should conduct constitutional review in the abstract.
FUNADA Hajime (Liberal Democratic Party)
>> The Supreme Court has a dual role, as a court of final appeal and as a court of constitutional review, but at present it is tilted too far toward the former and is not functioning properly in the latter role.
>> Some people advocate creating a Constitutional Court for optimal performance of the constitutional review function, but placing this function on an independent basis would cause problems. In particular, there would be a risk of the Court becoming out of touch with actual cases and lapsing into abstract arguments.
>> Among possible realistic solutions, we could (a) establish, within the Supreme Court, a Constitutional Division which would have particular responsibility for constitutional review; or (b) limit the Supreme Court to the single function of constitutional review by establishing a Special High Court between the Supreme Court and the High Courts and giving it the function of court of final appeal. The latter proposal seems to me the more realistic of the two.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Most of the informants invited before this Commission have viewed the introduction of a Constitutional Court negatively, and I share their view.
>> The problems in the existing system of constitutional review are due to insufficient judicial independence. As stipulated in Article 76, even in trials in the inferior courts, judges are expected to have the ability to look at reality with a grounding in their own personal study and interpretation of the Constitution. They are also expected to be capable of making judgments based on the Constitution independently of what has come to be known as the "judicial bureaucracy." We should continue to explore a course of action to increase the level of constitutional review activity.
>> Many countries have introduced Constitutional Courts, but the background is different in each case. If we introduced a Constitutional Court without taking the background in Japan's case into account, I would not expect it to function in practice given the present state of the Supreme Court, that is, the problems regarding the independence of its justices.
TANAHASHI Yasufumi (Liberal Democratic Party)
>> Japan has a judicial system of a very high level by world standards. Constitutional review is carried out within the framework of the principle of concrete disputes, and this is appropriate as the judges who carry out constitutional review are not popularly elected. In my view, the present form of the judicial system is basically correct.
>> However, some people advocate allowing the constitutionality of laws and administrative actions to be decided in the absence of concrete cases. If we were to make a change in that direction, I think that, rather than having constitutionality questions settled by an undemocratic judicial decision, we should take into account the fact that the two Houses of the Diet have very similar functions, which is relatively rare in a bicameral system, and, accordingly, we should consider making one of them a legislative chamber and the other a chamber which decides the constitutionality of laws.
SUGIURA Seiken (Liberal Democratic Party)
>> Introduction of a Constitutional Court is also being actively discussed by the Liberal Democratic Party's Research Commission on the Constitution, and the majority of members are in favor.
>> The question of a Constitutional Court is also related to the provisions of Article 96 for amending the Constitution. Unless we relax the present requirements for constitutional amendments and create a Constitution that can keep abreast of changes in the nation and society, we will run into the problem that, even when the establishment of a Constitutional Court leads to rulings of unconstitutionality, it will be impossible to change the Constitution.
AKAMATSU Masao (New Komeito)
>> Some people are calling for the creation of a Constitutional Court as a way to raise the level of judicial activity, but a Constitutional Court would risk becoming politicized. The answer lies in reforming the existing Supreme Court by such measures as upgrading the system of judicial research officials. To improve the functioning of the Supreme Court, I believe that we should tackle the practical problems by establishing a Constitutional Division with particular responsibility for the constitutional review function.
SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
>> Yesterday's ruling by the Fukuoka District Court that the Prime Minister's visits to Yasukuni Shrine are unconstitutional is fraught with a wide range of problems.
>> The case took the form of a claim by the plaintiffs to have suffered psychological harm from the actions of the government and the public officials who were named as defendants. This was rather a strained attempt to constitute a concrete case, but the fact is that constitutionality cases can be brought to court in Japan at present only by making use of such legal technicalities.
>> I fear that the Prime Minister will ignore the ruling, as it was issued by a district court, and continue his visits to Yasukuni Shrine. If the Prime Minister, who is obligated to respect and uphold the Constitution, fails to abide by a court ruling of unconstitutionality, it is very disturbing to think of the influence that such a blatant display of disregard for the rule of law would have on the public.
>> In my view, the Constitution, as the supreme law, should not be changed lightly, but I do not take the position that it cannot be revised at all. We should establish a Constitutional Court that can make sound judgments on constitutional matters, and thence, by revising what needs to be revised, we should create a clearly defined rule of law.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> In Japan, under the incidental system of review, a ruling of unconstitutionality is normally held to apply only to the case at hand and to restrain the actions of state organs only within the scope of that case. In practice, however, contrary to the general public's impression, I think that unconstitutionality rulings have only a weak effect in restraining state organs.
>> Last year, when the Immigration Bureau of the Ministry of Justice protested to a newspaper and asked it not to publish speculative reports, this was called "prior restraint" on the part of the state. When we consider how such cases can actually be contested in court under current law, the cause of action becomes critically important. For this reason, I believe that we need to create a system to render constitutionality decisions that are not premised on the particulars of a specific dispute.
>> With regard to organizational reform of the judiciary, I think radical reform would prove difficult in practice as the proposals would be formulated by the Ministry of Justice, many of whose personnel have formerly held judicial posts, and the Ministry would very likely coordinate with the Supreme Court in drafting any bills. In my view, the whole system needs to be redesigned.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Mr. SENGOKU raised the question of the "rule of law," and I agree. Yesterday's ruling is an important decision, the first unequivocal finding of unconstitutionality in a lawsuit against the state, and the Prime Minister should end his visits to Yasukuni Shrine.
>> When there is a ruling of unconstitutionality against the government, if the rule of law is to be fully realized, it is important that it be accepted, even if it is the decision of one district court.
>> The issue of whether to create a Constitutional Court should be understood from the viewpoint of guaranteeing human rights. In attempting to link this question with relaxation of the requirements for a constitutional amendment in Article 96, one loses sight of the system of constitutional review and the intentions of the various countries that have established a Constitutional Court.
ONO Shinya (Liberal Democratic Party)
>> Yesterday, the Fukuoka District Court ruled the Prime Minister's visits to Yasukuni Shrine unconstitutional. This decision was based on a double standard, applying the Constitution rigorously to the government while construing it loosely where the plaintiffs were concerned. If this is allowed to stand, we risk detracting from the authority of the Constitution.
>> It is the Diet's duty to endeavor to revise and improve a constitution that allows such ambiguous interpretations.
>> Members of the Diet who contend that official visits to Yasukuni Shrine are unconstitutional should make the effort to submit a bill restricting visits by the Prime Minister to Yasukuni Shrine. I think that we should seek greater depth in the debate on constitutional revision by recalling Japan's political history, in which the authority of the Constitution has been undermined by the arguments of those who will accept nothing but their own self-serving interpretations.
SUGIURA Seiken (Liberal Democratic Party)
>> I agree with Mr. SENGOKU's view that we should establish a Constitutional Court in order to do away with the need for concrete cases and introduce abstract constitutional review in deciding questions of constitutionality.
>> As I see it, the existing Constitution does not prohibit visits to religious institutions by the Prime Minister and his Cabinet. If the Constitution does prohibit the act of visiting a shrine for worship, it should be revised, because such ambiguities should not be allowed to stand.
>> The people should be the judge as to whether it is appropriate for the Prime Minister to visit Yasukuni Shrine. If they decide that it is appropriate, we should revise the Constitution. To that end, we should relax the requirements for a constitutional amendment set forth in the Constitution, which in its present form is almost impossible to revise.
NAGAOKA Yoji (Liberal Democratic Party)
>> The existing Constitution does not foresee the judiciary becoming involved in high-level decisions about the continuity of government or the national interest and having a detrimental effect thereon. We need to think carefully about the impact that a decision by a single judge can have on the national interest.
>> I think that we should establish a Constitutional Court, but it would be problematic if the Court were to become involved in high-level political issues and make excessively abstract decisions. In discussing the establishment of a Constitutional Court, we need to think separately about what form it should take and the potential effects of its constitutionality decisions.
>> I think that we should avoid granting strong powers of constitutional review to a Constitutional Court and, at the same time, allowing the strict requirements for constitutional amendments to remain in place. It would be meaningless to strengthen the constitutional review function of the courts if the Constitution could not be amended to bring it into line with economic, social, and international conditions. We should carry on an in-depth debate on a Constitutional Court, including the problem of the procedure for constitutional amendments.
MORIOKA Masahiro (Liberal Democratic Party)
>> As one of the Japanese people, I find it difficult to understand the judgment issued yesterday by the Fukuoka District Court, which ruled that the Prime Minister, the representative of the nation, must not visit a shrine sacred to the memory of those who gave their lives for the nation. I put it to you that this was a case of a single district court judge venting personal feelings in the name of a court decision. There is something wrong with a system which does not allow an intermediate appeal against this district court decision.
>> Yesterday's ruling is evidence that the effects of the Occupation's Shinto Directive (the December 1945 order to the Japanese authorities forbidding State Shinto) are still lingering among judges, and as such it is extremely problematic.
>> Whatever form it may take, we should create a mechanism to allow integrated decisions on questions of constitutionality.
SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)
(In connection with the comment by Mr. MORIOKA)
>> The Prime Minister's visits to Yasukuni Shrine are viewed by a substantial number of the Japanese people as trampling on the Constitution. It is important to create a system which will allow these matters to be brought to a final conclusion, one by one.
(In connection with the comment by Mr. ONO)
>> Article 99 does not specify "the people" because the Constitution embodies distrust and suspicion of the power of the state. Your comment about a "double standard" is alarming in light of the historical process by which the Constitution was created as a check on the exercise of power.
Report by the Chairman of the Subcommittee on Security and International
Cooperation, and free discussion
States of emergency and the Constitution, including the pending legislation
to protect the people of Japan
Report by Subcommittee Chairman KONDO Motohiko (Liberal Democratic Party) (main points):
>> On the question of whether explicit provisions for states of emergency should be set forth in the Constitution, some speakers expressed the view that we should make explicit provision in order to protect the lives and property of the people at a time when tangible threats to Japan's security are emerging, while others stated that we should first make explicit provision and then consolidate the related legislation on that basis. Still others spoke of the significance of the existing Constitution's lack of explicit provisions for responding to states of emergency.
>> With regard to the draft Law for the Protection of the People now before the Diet, speakers commented that there is a need to study its practical effectiveness, and that it forces the public to cooperate in war.
>> The Subcommittee discussed the major points of contention regarding states of emergency from a constitutional viewpoint, such as whether to make explicit provision in the Constitution for states of emergency, and the relationship between measures taken during states of emergency and human rights. I hope to pursue further in-depth discussion on the ideal form for Japan's security and international cooperation, in light of the fact that it is the duty of government to protect the lives and property of the people.
Free discussion
OIDE Akira (Democratic Party of Japan and Club of Independents)
>> The proposed legislation to protect the people should be examined in the light of four points noted by the informant Prof. KOBARI: (a) because the Constitution contains no provisions for states of emergency, the only legal principle embodied therein that can be seen as a basis for restricting human rights in a state of emergency is "the public welfare"; (b) the guarantee of human rights is manifold and complex in nature, and under the individualistic worldview of the Constitution, state control can only be justified in terms of protecting the people; (c) there is a need to convert to a view of defense which places the people at the top of the hierarchy, followed by local governments and then the national government; (d) only in a military emergency can the new legislation on readiness for military emergencies prove its worth in protecting the people's lives, limbs, and property and ensuring the security of the nation. Like Prof. KOBARI, I think that we should make express provision in the Constitution for responding to states of emergency.
>> The legislation to protect the people has been designed within a constitutional framework and can be evaluated highly in terms of its restraint, for example, the fact that no penalty is provided for failure to comply with an order to perform certain duties.
TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)
>> At present, crisis management is left to those who are on the scene; this was seen clearly at every stage of Japan's response when Chinese activists landed illegally on the Senkaku Islands. It is necessary to clarify where responsibility lies in the event of an emergency situation, especially the responsibilities of the Prime Minister and the Cabinet Secretariat. It is possible to do this even under the existing Constitution.
FUNADA Hajime (Liberal Democratic Party)
>> We should make explicit provision in the Constitution for dealing with a state of emergency, because of the need (a) to prevent administrators from abusing their powers by, for example, taking supralegal measures, and (b) to clarify the basis of any restrictions placed on human rights.
>> As for what level of provision should be made in the Constitution for dealing with states of emergency, we should probably make the provisions fairly detailed, as Germany has done, to prevent abuses by administrators.
>> We should not only make explicit provision in the Constitution for states of emergency, but should also establish a "termination clause" for the state of emergency system, in order to direct the return from a military emergency to peacetime.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Japanese constitutional scholars have long held that there was no need to make provision for a state of emergency because military emergencies would be excluded by the existence of Article 9. Prof. KOBARI put forward the theory that, in situations having a "public nature of a military type," human rights can be restricted on the basis of Article 13's reference to "the public welfare," but this is a minority view among constitutional scholars.
>> In regard to the legislation to protect the people, the question is for whose sake it exists, and for what purpose. The bills currently before the Diet focus primarily on facilitating operations by U.S. forces and the Self-Defense Forces.
>> The supply of goods and services in rear-echelon areas was recognized by the Law Concerning Measures to Deal with Situations in Areas Surrounding Japan, but in the proposed Law Concerning Assistance for U.S. Forces, among other problematic points, the requirement of "rear-echelon areas" has been dropped, and this is not permissible under the Constitution.
AKAMATSU Masao (New Komeito)
>> Personally, I think that we should establish provisions in the Constitution to deal with emergency situations.
>> I think that we should discuss basic laws for emergency situations and security and determine the proper way to deal with such situations. Then, on that basis, I think that we should study what constitutional provision to make for emergency situations, and, in the future, we should add to the Constitution accordingly.
OIDE AKIRA (Democratic Party of Japan and Club of Independents)
(In connection with a comment by Mr. YAMAGUCHI)
>> I do not agree completely with Prof. KOBARI's view, as I cannot understand certain parts of the government's interpretation of "the public welfare" in the emergency response legislation. Also, when I think of the view of the public welfare commonly accepted among scholars, I am even more doubtful as to whether this principle can become a basis for restricting human rights.
(Comment)
>> I appreciate the restraint shown in parts of the legislation to protect the people, but some portions are a holdover from the old premise of defense against the Soviet Union, and in places it brings to mind a national mobilization. The legislation will not win popular acceptance if it does not adopt the perspective of the people.
NAKATANI Gen (Liberal Democratic Party)
>> The Law Concerning Measures to Ensure National Independence and Security in a Situation of Armed Attack and other such emergency legislation exist, obviously, for the sake of the nation and the people of Japan. Among possible ways to protect the nation are the Self-Defense Forces, the cooperation of the international community, and patriotism.
>> Fundamental human rights and freedoms can exist only as long as the state exists. Together with stipulating the duty to protect the nation in the Constitution, we should establish provisions of some kind that will encourage the people to regard it as only right and proper to protect and love the nation.
TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)
>> The Liberal Democratic Party and the Democratic Party of Japan have agreed to enact a Basic Law on Emergency Situations and establish a Crisis Management Agency, and these measures should be implemented. We should thereby make it clear where responsibility lies in dealing with an emergency situation, especially the responsibilities of the Prime Minister.
YAMAGUCHI Tomio (Japanese Communist Party)
(In connection with a comment by Mr. NAKATANI)
>> The Constitution says "We, the Japanese people," not "We, the Japanese state," because it was established as part of the historical trend to modern constitutionalism, in which a nation's constitution guarantees human rights against state power. When Mr. NAKATANI points out that the Constitution does not stipulate a duty to protect the nation, he fails to recognize this point and thus he misunderstands the Constitution.
TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> We should look fifty years into the future and think about the Constitution from the viewpoint of whether it will still hold good at that time. The nation-state and national sovereignty are concepts belonging to a certain stage of history, and I question whether we should treat these as givens in thinking about the structure of society fifty years from now.
>> The EU is moving from economic to political integration, and there is a worldwide trend today toward developing regional communities of this kind. Although there are issues including the North Korean problem in the region around Japan, we should visualize a regional community existing in East Asia once these problems have been overcome, and we should think about the ideal form of society and politics on that basis.
NAKATANI Gen (Liberal Democratic Party)
(In connection with the comment by Mr. YAMAGUCHI)
>> Because human rights and private rights are protected only as long as there is a state, I believe that we cannot protect human rights while denying the importance of national defense and failing to clarify matters that concern the state.
>> Because the Japanese Constitution was enacted under the Occupation, we should revisit this question and make express provision for the necessity and obligation of protecting the nation.
MASHIKO Teruhiko (Democratic Party of Japan and Club of Independents)
>> The fact that there were no wars was a major factor in Japan's postwar prosperity, and I believe that we should firmly maintain Article 9's renunciation of war as an important provision of the Constitution.
>> I think that the emergency response legislation should be recognized, but that we should improve it in order to protect the nation and the people.
>> The Self-Defense Forces should maintain an exclusively defensive posture. The use of force overseas is not permissible, nor are operations to maintain public order in a military emergency.
>> One year after the Iraq war was declared over, a state of war continues, and the entire country can be called a combat zone. I therefore think that dispatching the Self-Defense Forces to Iraq is a mistake. The Self-Defense Forces must not use force against other nations. We should discuss the form to be taken by the Self-Defense Forces on the premise that Article 9 will be maintained.
YASUOKA Okiharu (Liberal Democratic Party)
>> We should conduct an in-depth debate about the essentials of a response to natural disaster, disaster caused by human error, and so on. That is, we should think about the ultimate meaning of the guarantee of human rights and decide what values are essential if we are to uphold the social nature and communal values of human beings, and we should discuss how to protect these things.
>> The lessons of the last war are certainly important, but we can gain the world's trust as a nation only if we discuss the essence of such things as society, the nation, the global framework for peace, and human dignity, and establish an approach that will allow risk management. In our debates on constitutional revision, we should seek to create a Constitution whose excellence will be recognized by the world.
TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)
>> The informant Associate Professor MATSUURA expressed the view that if we establish a unified crisis management organization like FEMA, it should not be on the same level as all other ministries and agencies. Rather than being a mere coordinating body, it should be organized in such a way that the Prime Minister and the Cabinet Secretariat have powers of direction and supervision and there is a clear allocation of responsibility.
>> Mr. NAKATANI commented that the private rights of the people are guaranteed only as long as there is a state. But with the legislation to protect the people expected to impose restrictions on private rights and the right to trial, there is cause for concern given that, even under the existing Constitution, Japan is lagging behind in its efforts to protect human rights. I am also dubious about the fact that, although slow to ratify a number of treaties for the protection of human rights, Japan is in a hurry to ratify conventions such as the Cyber Treaty, which deals with criminal investigations and strict enforcement.
Report by the Chairman of the Subcommittee on Guarantee of Fundamental
Human Rights, and free discussion
The public welfare, with special reference to its reconciliation with the
freedom of expression and academic freedom
Report by Subcommittee Chairman YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents) (main points):
>> On the one hand, it was suggested that "the public welfare" should be recognized broadly and effectively in order to deal with contemporary problems. On the other hand, "the public welfare" was held to be strictly a principle to be applied in reconciling conflicting human rights.
>> A number of speakers agreed with the view of the informant, Prof. MATSUMOTO, that the legislature should play an important role when human rights are restricted for the sake of the public welfare. It was also suggested that, to make it easier for the legislature to reach decisions, positive steps should be taken to provide explicitly for "new human rights" in the Constitution.
>> Establishing the theoretical grounds for restricting human rights is a major question which also has implications for the ideal form of fundamental human rights. In particular, freedom of expression is at the core of fundamental human rights. It is a freedom of great significance, an essential premise of democracy, and any restriction of this freedom must be approached with caution.
>> Prof. MATSUMOTO expressed the view that human rights and the public welfare should be reconciled in the form of laws enacted by the legislature. I found this very thought-provoking as I believe that human rights, which have universal value, should not be restricted at the discretion of the executive branch, but that restrictions can only be justified if the essentials are laid down by legislation in the Diet, which is the "sole law-making organ" and which rests on the basis of democracy.
Free discussion
ONO Shinya (Liberal Democratic Party)
>> If the Prime Minister's visits to Yasukuni Shrine are held to be unconstitutional despite the guarantee of freedom of thought and conscience in Article 19 and the guarantee of freedom of religion in Article 20, it could be that these rights, which are supposedly guaranteed to "all," will no longer be guaranteed to the Prime Minister. Those who contend that the Prime Minister's visits to Yasukuni Shrine are unconstitutional should submit a bill to prohibit them and debate the issue fairly and squarely in the Diet.
>> A previous speaker stated that the fact that Article 99 does not specify "the people" shows that the essential nature of the Constitution is a check on state power, and that it is actually consistent with the nature of the Constitution to apply it rigorously to the government alone. Does this mean that the right of access to the courts under Article 32 is not guaranteed in the case of the Prime Minister?
>> There is no longer a simple binary opposition between "the public welfare" and individual human rights, as the contents of each have become manifold and diverse. Thus, many factors must be taken into account in reconciling them, but I question whether the judiciary is capable of doing this. I would like to make the point that we have reached a stage where we must consider a route other than the courts for reconciling these two.
NAKATANI Gen (Liberal Democratic Party)
>> The judiciary has issued divergent decisions on the question of freedom of publication versus privacy, but in ruling on such cases they should keep respect for fundamental human rights in mind. People's privacy is being invaded by aggressive acts of publication carried out in the name of freedom of expression. We should consider setting some kind of constitutional limits to the freedom of expression.
KURATA Masatoshi (Liberal Democratic Party)
>> Perhaps we should study the American system and establish, by legislation, a system in which a lower court's ruling of unconstitutionality can be appealed directly to the Supreme Court, separating the question of constitutionality from the concrete case. Because of the potential harmful effects of creating a Constitutional Court, such as bringing politics into the judicial arena and judicial decisions into the political arena, I believe that we should try to improve the system of constitutional review within the framework of the existing Constitution.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Prof. MATSUMOTO commented that the Constitution of Japan provides an ample catalog of human rights. This is an important point.
>> One human right cannot restrict another, but when two human rights are in conflict, it is the public welfare that reconciles them. Prof. MATSUMOTO emphasized that this reconciliation should take the form of laws enacted by the legislature, and I believe that we have the weighty responsibility of enacting legislation to set out the criteria for reconciliation. I also view as important Prof. MATSUMOTO's point that human rights can never be restricted for the sake of "state power."
(In connection with a comment by Mr. ONO)
>> The problem in regard to the Prime Minister's visits to Yasukuni Shrine is that these continual visits by an official whose status is established in the Constitution, and who could thus be called an organ of the state, violate the principle of separation of religion and the state and are therefore unconstitutional. As soon as one brings in restriction of fundamental human rights and issues of the public welfare, the constitutional argument becomes a total mess.
> TSUJI Megumu (Democratic Party of Japan and Club of Independents)
>> In contemporary society with its wide variety of opinion, what
we need are logical explanations, not emotional arguments. The court was
right to rule that the Prime Minister's visits to Yasukuni Shrine violate
Article 20, Paragraph 3, in light of the historical fact that this paragraph
was enacted as an institutional guarantee to protect the freedom of religion,
and also the fact that Article 99 states the obligation to respect and
uphold the Constitution, and I am in agreement with the ruling.
> ONO Shinya (Liberal Democratic Party)
>> Mr. YAMAGUCHI's comment that one should not bring up the public welfare in interpreting the question of visits to Yasukuni Shrine is unrealistic. In my view, due consideration should be given to a wide variety of provisions in deciding constitutionality cases. I spoke of the Yasukuni Shrine lawsuit, not in relation to the public welfare, but because it detracts from the Prime Minister's freedom of religion.
>> In judging whether certain actions of Cabinet members, for example, are connected with religion, some people use the Constitution to their own advantage and claim that such actions violate the separation of religion and the state. This is a kind of selective reading of the Constitution, and such interpretations are undesirable.
AKAMATSU Masao (New Komeito)
>> The New Komeito advocates adding to the Constitution by making clear provision for "new human rights."
>> I think that the discussion in the Subcommittee between Prof. MATSUMOTO and Mr. OTA of the New Komeito covered all the main points of this issue.
>> Prof. MATSUMOTO was not in favor of making explicit provision for the right of privacy because a basis for this can already be found in the Constitution, and I agree with his opinion.
>> I agree with Prof. MATSUMOTO that we should make express provision for environmental rights as obligations of the state, and I suggest that it would be appropriate to add them to Article 25.
YAMAGUCHI Tomio (Japanese Communist Party)
(In connection with the comment by Mr. ONO)
>> I can only interpret Mr. ONO's comment on the Yasukuni Shrine issue as being framed as a question of the public welfare, not as a question of the separation of religion and the state.
>> The Yasukuni Shrine problem is, precisely, an issue of separation of religion and the state under Article 20, Paragraph 3. To say this is not to make a selective reading of the Constitution.
YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)
>> The terms "the right to one's good name" and "the right to privacy" are often confused. In the debate over restricting the freedom of expression, we should be aware of the difference between them, that is, the right to one's good name can be restored by an apology or a rebuttal, but the right to privacy is difficult to restore. In the debate over the reconciliation of such human rights, it is important to distinguish three stages, depending on the nature of the rights concerned: (a) establishing clear provisions in the Constitution; (b) enactment of laws by the legislature; (c) interpretation by the judiciary.
Report by the Chairman of the Subcommittee on Ideal Government and Organizations,
and free discussion
Public finances, with special reference to their control by the Diet and
the question of social security funding, including the problem of the contribution
of the public to social security
Report by Subcommittee Chairman SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents) (main points):
>> Comments on the control of public finances included the view that a multi-year budget system should be considered, and the view that we should make explicit provision in the Constitution for balancing the budget.
>> With regard to social security, attention was drawn to the importance of the fact that Article 25 sets forth the government's responsibility regarding social security, welfare and public health. A wide variety of views was expressed on a number of other points, including what form the constitutional provisions regarding social security should take, the present level of the public's contribution to social security and the permissible future level, the appropriate level of the corporate tax burden, how compulsory education should be funded from the national treasury, an assessment of Sweden's pension reforms, and the welfare state model which Japan should aim to achieve.
>> I feel that continued in-depth discussion from a comprehensive viewpoint is needed, especially in light of the fact that fiscal issues, such as control of public finances by the Diet and the problem of funding social security, can be expected to take on still greater importance in this country in the future.
Free discussion
FURUYA Keiji (Liberal Democratic Party)
>> It is difficult to be optimistic about Japan's fiscal situation today, because of a tendency to put all the emphasis on the public debt. Nevertheless, to enable the public to keep a direct check on fiscal activities and political decisions, politicians must strive to make comprehensive information on the fiscal situation available to the public, including the existence of financial assets such as Japan's foreign exchange reserves and overseas loans.
>> Even as a matter of interpretation of Article 89 of the Constitution, assistance to private schools is held to be constitutional, and budgetary measures have been taken for this purpose. Article 89 is a controversial provision, however, and it would be appropriate either to delete it or to revise it.
>> I think that it will be necessary to strengthen and reorganize social security in the future, but maintaining a high level of welfare with a high burden could lead to deterioration of the economy, and there are limits to the approach of trying to pay for everything with taxes. Hence, the need arises for an appropriate division of roles among self-help, public assistance, and mutual assistance. In achieving this, renewal of the family is an important perspective. We need to take the approach of adding provisions to the Constitution to declare, among other things, the importance of family bonds.
KANO Michihiko (Democratic Party of Japan and Club of Independents)
>> Legislation goes before the Diet in the form of a "bill," but the budget is submitted as "the budget," not as a budget bill. Also, there are said to be limits on the amounts that the Diet can add or subtract in budget revisions. To put it in an extreme way, the Diet's role in regard to the budget is only to say yes or no; furthermore, strict requirements are imposed before budget-related bills can be submitted. In contrast, in the United States, the broad outlines are drawn up in the House and Senate Budget Committees because the budget, too, is seen as a piece of legislation.
>> The Congressional Budget Office (CBO) plays a key role in enabling the U.S. Congress to provide the public with adequate information. In Japan, attention is currently focused on introducing a Japanese version of the General Accounting Office, but we should consider creating a Japanese version of the CBO.
YAMAGUCHI Tomio (Japanese Communist Party)
>> Article 25, which sets forth the state's obligation in relation to social security, is a substantial provision even when compared to the constitutions of other countries. The government's obligation with regard to social security is a matter of "public assistance," but ever since the "Basic Policies for Macroeconomic Management and Structural Reform of the Japanese Economy" came out (in 2001), the words "public assistance" have disappeared from government documents. We should deliberate the pension question from the angle of the right to social security and the government's obligation as stipulated in Article 25.
>> Article 89 is stable in terms of both judicial precedents and constitutional interpretation, and there is no need to revise it.
FUNADA Hajime (Liberal Democratic Party)
>> Japan is presently in a stringent fiscal situation, including a massive accumulated deficit, and we should give the principle of a balanced budget constitutional status. Also, some provision is made for fiscal democracy in the existing Constitution, but because of the growing number of increasingly complex special accounts and other mechanisms that exist in addition to the general account, the Diet is unable to exercise adequate control over public finances, and we should therefore take further steps to establish the status of fiscal democracy in the Constitution.
>> Further, we should clearly stipulate in the Constitution that single-year budgets are the general rule while recognizing, as an exception, the carrying-over of funded budget items.
>> Steps have been taken in the past to strengthen the Diet's audit function, but they were insufficient. To strengthen this function, the House of Representatives should review the budget exclusively, while the House of Councillors should specialize in auditing the accounts, and the system should be arranged so that both reviews can be reflected in the compilation of future budgets. Further, the Constitution should be revised in whatever way is necessary to achieve this.
NAGAOKA Yoji (Liberal Democratic Party)
>> Sweden is a country with a highly developed social security system, and yet it is a fact that there is a high rate of suicide among the elderly. The ideal form of social security is a question that is properly decided by political choices, e.g., the allocation of roles between the public and private sectors. It is only natural that the family should have a large role in the system, and we should make provision in the Constitution for the renewal of the family.