Subcommittee on Guarantee of Fundamental Human Rights (Fourth Meeting)

Thursday, May 20, 2004

Meeting Agenda

Matters concerning the guarantee of fundamental human rights (economic, social and cultural freedoms, especially the freedom to choose one's occupation and the right to own or hold property)

After a statement was heard from Professor NORO Mitsuru 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. NORO

Main points of Prof. NORO's statement

1. Economic freedoms and spiritual freedoms

>> Economic freedoms are generally understood to be rights that, in contrast to spiritual freedoms, are broadly subject to restrictions under the law. It should be noted, however, that because of its special character the right to own land is not entirely covered by the general theory of economic freedoms, since land as a form of property is subject to special limits that are, in a sense, universal.

2. Economic freedoms

>> The economic freedoms are the freedom to choose one's occupation, the freedom to choose and change one's residence, and the right to own or hold property.

>> If taken at face value, Paragraphs 1 and 2 of Article 29 would amount to no more than a guarantee of property rights as defined by law. These two paragraphs have therefore traditionally been construed by scholars to mean that there exist certain property rights (sometimes understood to represent the private property system or the market economy) whose inviolability is above the law, and that it is these rights that Paragraph 1 guarantees. Also, Paragraph 3 provides for compensation when property rights are restricted.

3. The guarantee of property rights in relation to town planning and preserving and creating scenic value: A comparison between Germany and Japan

[1] A comparison of town planning legislation

>> Germany and Japan take different approaches to controlling new development and construction: in Germany, the principle of "no development without planning" applies, whereas in Japan the operative principle is "freedom of development and construction." Thus, what constitutes a general principle in Germany becomes the exception in Japan.

>> Germany has a two-tiered town planning system whose core consists of "B-Plans," i.e., detailed plans at the district level drawn up by municipal governments. In contrast, the core of Japanese town planning is a general, abstract system of land-use zoning; unlike the German B-Plans, this approach does not lay out a detailed vision of a particular district's future.

[2] A comparison of legislation to protect the urban landscape

(a) The German system

>> The German system of legislation to protect the urban landscape has three components: monument protection laws, the B-Plans, and building regulation laws. The latter functions as a two-tiered system of controls: [1] the first tier is a ban on changes that disfigure the landscape, based directly on national legislation and not limited to specific districts; [2] the second tier is proactive preservation and creation of scenic value based on municipal ordinances.

(b) The Japanese system

>> Japan's system of laws for the protection of scenic value—in particular, the system of scenic zones, district plans, and building agreements under the City Planning Law and the Building Standards Law—cannot be said to be particularly effective as it lacks the principle "no development without planning."

>> The proposed Landscape Law, one of three bills for the protection of scenic value and greenery that are now before the Diet, can be seen as a positive step that improves the existing system in various ways, but there is a limit to how far the present system can be improved in the absence of the principle "no development without planning." In future, it will be necessary to reform the system to bring it at least a little closer to this principle.

[3] Urban development and the constitutional guarantee of property rights

(a) Although there are differences in the approach taken by Article 29 of the Japanese Constitution and Article 14 of the Bonn Basic Law, I do not see these differences as having much effect on substantive issues. Of greater importance is the fact that, in actual cases involving the limits of ownership rights or social restrictions thereon, German court decisions are based on [1] an emphasis on social restrictions on land use and [2] a situational view of constraints (the view that the nature and extent of social constraints depend on the present situation in the environs of the site, its history of use, and similar factors).

(b) Observations based on the town planning legislation

>> Japan's town planning legislation applies the principles of "freedom of construction" and "minimum necessary regulation."

>> This can be attributed to the fact that, in guaranteeing property rights, Japan emphasizes value while Germany emphasizes use.

(c) Observations based on the legislation to protect scenic value

>> In Japan, measures to protect the landscape tend to be legally enforceable only in exceptional and limited cases. This is probably because scenic value was traditionally seen as a weak basis for imposing legally binding restrictions.

>> As I see it, the reason why European nations apply legally binding restrictions to protect the landscape is because they consider such measures to be justified by the special character of the right to own land.

>> Further, I would argue, albeit tentatively, that the special character of the right to own land lies in the fact that the right to construct a building of a specific design in a specific place is not absolute but dependent upon the circumstances.

Main points of questions and comments to Prof. NORO

ONO Shinya (Liberal Democratic Party)

>> In my view, we should make explicit constitutional provision for the responsibilities and duties of property owners, based on the recognition that property rights are fundamental to life in society. What are your views in this regard?

>> I think that we should state explicitly in the Constitution that "property rights are subject to restriction in cases where they are contrary to the public welfare." Do you agree?

>> One could say that the substance of "the public welfare" is defined by law according to standards that change with the times, but is there any academic theory that summarizes the items to be taken into consideration in determining its specific contents?

>> I believe we should state explicitly that the public welfare includes "sharing limited resources and using them in the most effective way for the good of society." Would you like to comment?

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

>> With regard to the Landscape Law presently before the Diet, please explain: (a) the differences and similarities between the proposed law and the corresponding system in Germany; (b) the effectiveness of the proposed law.

>> In your view, how should we rethink property rights from the viewpoint of protecting cultural assets?

>> Please give us your opinion on whether there is a need for a concrete provision in the Constitution to protect scenic value or cultural assets.

>> In its ruling on a lawsuit opposing a high-rise condominium in Kunitachi, the district court gave partial recognition to local residents' "right to scenery." (a) How do you evaluate the "right to scenery"? (b) What, in your view, constitutes its legal basis?

OTA Akihiro (New Komeito)

>> At a previous meeting of this Subcommittee, former Diet member HANASHI Nobuyuki put forward the idea that we should provide expressly in the Constitution for "the right of city planning" with the aim of ensuring the active involvement of residents in the planning process. I would like to hear your views on this idea.

>> In Japan, it seems to me, the right to own land guaranteed in Article 29 is seen as absolute, and as a result we have been unable to carry out the regulation necessary for town planning and related purposes. What are your views on this point?

>> Paragraph 2 of Article 29 is worded "in conformity with the public welfare," not, as in other articles, "to the extent that it does not interfere with the public welfare." Some people contend that, because of this difference, the state should take proactive legislative measures on landscape issues. I would like to hear your views on this point.

>> In city planning in Japan, I think "amenities" tend to take precedence over scenic value. In your statement, you emphasized "beautiful cityscapes," but does this concept place more weight on scenic value or amenities?


YOSHII Hidekatsu (Japanese Communist Party)

>> In the late 18th century, ownership rights were held to be absolute and inviolable, but since the Weimar Constitution of 1919, economic freedoms have come to be secured within the limits of the guarantee of social rights, and, as I see it, the Constitution of Japan reflects this historical trend. Recently, however, the emphasis in Japan has been on economic efficiency, resulting in widespread economic activity in which the law of "might makes right" applies, contrary to the trend that dates back to the Weimar Constitution. Looking at current economic activity in terms of the economic freedoms set forth in the Constitution of Japan, how do you evaluate the present situation?

>> I believe that, even if it can be called an exercise of economic freedom, it is not permissible for developers to ignore the wishes of the local residents who have created a community over time and, in the name of economic freedom, to suddenly build a different community with a massive injection of capital, thereby destroying the foundation of the residents' lives. Would you like to comment?

DOI Takako (Social Democratic Party)

>> Germany's basic units of local government have more authority in town planning than their Japanese counterparts. I would like to hear your views about this difference in the decentralization of town planning authority in the two countries, especially from the viewpoint of "resident self-government," which is the main aim of Article 92's provision for local autonomy.

>> The 1997 revision of the Law for Special Measures for Land Expropriation for U.S. Forces in Japan, which permits the continued use of U.S. military bases on privately owned land without following the general procedure for land expropriation, is a violation of the people's property rights guaranteed by Article 29. I see this as an expression of the government's willingness to put the Japan-U.S. Security Treaty above the Constitution. How have such questions been handled in Germany, which, like Japan, has U.S. military bases?

FUNADA Hajime (Liberal Democratic Party)

>> As Mr. OTA has pointed out, where other articles are worded "to the extent that it does not interfere with the public welfare," Article 29, Paragraph 2 says "in conformity with the public welfare." It seems to me that this difference is a token of the legislators' intent, i.e., their recognition that, in the case of property rights, there are more extensive requirements for the sake of the public welfare. Would you like to comment?

>> In the past, the most commonly cited examples of restrictions on land ownership for the sake of the public welfare were such things as river improvement to ensure the safety of local residents. Today, the public welfare has come to be understood as including a pleasant residential environment, in which the convenience of local residents, city planning, and scenic value all play a part. Thus, I think that the concept of "the public welfare" in relation to property rights has expanded. What are your thoughts on this point?

>> The detailed and comprehensive nature of town planning in Germany serves as a very useful reference, but could you describe the systems in other parts of Europe that, like Germany, have preserved beautiful cityscapes?

>> How are town planning and creation of scenic value treated in EU legislation?

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

>> Article 14, Paragraph 3 of the Bonn Basic Law states that expropriation for public use may only be ordered by or pursuant to a law that determines the nature and extent of compensation. In Japan, in contrast, the courts have held that even if a law lacks provisions for compensation, this can be sought on the basis of Article 29, Paragraph 3, and the law in question is not unconstitutional. If the Japanese Constitution were to include an explicit provision like that of Article 14, Paragraph 3 of the Bonn Basic Law, I expect that more detailed provision relating to expropriation for public use would also be made in legislation. Would you like to comment?

>> I believe that the standards and contents of compensation should be provided for as explicitly as possible by legislation. Article 29, Paragraph 3 of the Constitution refers to "just compensation." There are two theories as to how this phrase should be read: "full compensation" and "reasonable compensation." Looking at examples from other countries, we find that the Swiss constitution uses the phrase "fully compensated," the Portuguese constitution says that compensation should be "fair," and the Spanish constitution says it should be "proper." I think that debate is needed as to whether the wording of the Japanese Constitution is appropriate. What are your views on this point?

HIRAI Takuya (Liberal Democratic Party)

>> In the Bonn Basic Law, Article 20a, which was newly enacted in 1994, goes one step beyond the approach of modern constitutions, that is, protecting the fundamental human rights of the people from abuses of state power, and speaks of the state's "responsibility toward future generations." This article is considered to provide for protection of the environment as a goal of the state, but can this be construed as including the protection of scenic value? Also, how has this provision influenced Germany's system of legislation for the protection and creation of scenic value?

>> Article 20a has both its supporters and its critics, but I regard it highly as the expression of a basic consensus on how to constitute the nation. Perhaps, at this point, we need to make a drastic change in our concept of fundamental human rights, recognizing that [1] rights and duties are indivisible, and [2] rights are not a check on power but a means of self-realization, and thus to create anew a system of human rights that is consistent with actual conditions in Japanese society. It seems to me that the German experience with Article 20a is relevant in thinking about these ideas. Would you like to comment?

>> I think that if regulation to protect scenic value is to go ahead, there must be a popular consensus. Assuming that there is a popular consensus in Germany in favor of restricting property rights in order to preserve the landscape, is a similar consensus now in the process of being formed in Japan?

>> You said that Germany has adopted a two-tiered system, with national legislation banning changes that disfigure the landscape, and proactive creation of scenic value based on ordinances. In concrete terms, what is meant here by "changes that disfigure the landscape," and who decides whether a proposed change is disfiguring? Is there any opposition to these decisions? Also, would it be possible to introduce such a system in Japan?

>> The German city of Rothenburg has an ordinance which provides for large administrative fines of up to 500,000 euros (about 65 million yen). In Japan, however, because of the constraints of Article 94 of the Constitution and Article 14, Paragraph 3 of the Local Autonomy Law, fines and related penalties can be imposed up to a maximum of only one million yen. What are your views on this point?

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

KURATA Masatoshi (Liberal Democratic Party)

>> In Japan, the idea that ownership rights are absolute has taken on a life of its own. Even in the district court ruling that suspended the authorization of public works and expropriation of land for the proposed Kenodo highway, the good of society as a whole was not taken into consideration. Behind the court's reasoning, it seems, there is the idea that property rights are absolute.

>> The procedure under the existing Land Expropriation Law is very detailed, and I do not think that we can go any farther in simplifying it or relaxing the requirements.

>> The Legal Training and Research Institute must provide a solid education that recognizes that the contents of "the public welfare" have diversified, thus ensuring that judges keep abreast of changes in society.

FUNADA Hajime (Liberal Democratic Party)

>> We should regard "the public welfare" in Article 29 as including restrictions on human rights that accompany city planning. For example, in my home district of Utsunomiya, the citizens themselves are enthusiastically supporting the introduction of light-rail transit (LRT), and some argue that certain rights will inevitably have to be restricted, e.g., by keeping cars out of the lanes where the LRT lines are laid. I think that, before revising the Constitution, we need to conduct a debate with a similar perspective.

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

>> Many national constitutions allow for restriction of ownership rights for various reasons, including the preservation of culture and scenic value. These provisions developed within the context of each nation's history and tradition, and this pluralistic aspect will probably evolve further in the 21st century. In creating a Constitution that can last through the 21st century, we should create a new framework for these cultural and scenic values as part of the relationship characterized by the term "the public sphere."

>> Some people argue that it is meaningless to establish provisions for scenic value in the Constitution as they would merely represent a goal of effort. However, one can point to the example of the social rights provided for in Article 25, which have become the basis for concrete rights such as livelihood assistance; this suggests that provisions to protect the landscape would not be meaningless. Such provisions are certainly worth considering for a number of reasons, including the fact that scenic value is likely to take on the status of a right as decentralization based on citizen participation progresses.

YOSHII Hidekatsu (Japanese Communist Party)

>> As part of the development of a modern society, it is only natural that restrictions be placed on private property in order to ensure that the value of public goods is not lost. The destruction of the landscape can be attributed, not to the Constitution, but to the fact that its provisions have been trampled underfoot. What is needed is proper implementation of the Constitution.

>> It is a sign of human progress that property rights have gone from being absolute and inviolable, as proclaimed in the French Declaration of the Rights of Man, to being viewed in the context of the realization of social rights, and Article 29 reflects this progress. In particular, the reference to "the public welfare" in Paragraph 2 is important because it requires that property rights be defined by law in a way that is consistent with the right to a certain standard of living. With regard to Paragraph 3, the procedures for expropriation of land and other property should be followed rigorously, and yet situations have arisen in which these procedures are distorted, as in the revision of the Law for Special Measures for Land Expropriation for U.S. Forces in Japan.

>> A feature of the court decision on the subrogation of land expropriation for the Kenodo highway is the fact that the court required the administration to provide strict proof that the project is in the public interest, thus highlighting a problem in the existing law, namely, the inadequacy of the framework for accommodating resident participation and judicial decisions at the planning stage. The legislation should be improved to resolve such problems. Rather than bringing the Constitution closer to the realities, legislators and policy-makers should strive to put the Constitution into practice.