Japanese Law and Government/Constitutional Law
Japan is a Constitutional Monarchy.
- We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution. Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws ordinances, and rescripts in conflict herewith.
- We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want.
- We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.
- We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.
Japanese constitutional scholars generally recognize three core principles in the current constitution, which are declared in the first sentence of its preamble:
- Popular sovereignty - the notion that the people have the ultimate power to determine national policy (sovereign power resides with the people);
- Respect for fundamental human rights (we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land); and
- Pacifism (never again shall we be visited with the horrors of war through the action of government) - primarily embodied in Article 9, which declares that "the Japanese people forever renounce war as a sovereign right of the nation."
The Preamble also sets forth two of the three pillars of Japanese sovereignty: popular sovereignty as described above, and independence from other nations (laws of political morality are universal; [and] obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations).
The third key pillar of Japanese sovereignty, self-governance, is not enumerated in the Preamble. It appears in Article 41 of the Constitution (The Diet shall be the highest organ of the state power, and shall be the sole law-making organ of the State), and is further supported historically by two statements of the Allied powers which occupied Japan following World War II:
- The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine. (Potsdam Declaration, 1945, Article 8)
- The Allied Powers recognize the full sovereignty of the Japanese people over Japan and its territorial waters. (Treaty of Peace with Japan, 1951, Article 1(b))
The Preamble is universally viewed as having the force of law; however, it is generally viewed (although still disputed) that the Preamble cannot be the legal basis of an actual claim against the government.
The Constitution makes many provisions for the protection of human rights against interference from the state. Note that protection of rights between private actors is covered by the Civil Code and other statutes, and is not covered by the Constitution.
"Fundamental rights" are declared to be inviolate in two articles of the constitution:
- Article 11: The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.
- Article 97: The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.
The term "the people" in such passages is rendered in Japanese as 国民 (kokumin) or 日本国民 (nippon kokumin), often translated as "nationals" or "nationals of Japan" respectively. The Constitution defines this term as follows:
- Article 10: The conditions necessary for being a Japanese national shall be determined by law.
The Emperor is defined in Article 1 as "the symbol of the State and the unity of the people, deriving his position from the will of the people with whom resides sovereign power." Although the Emperor has fundamental human rights as a national of Japan, his rights are limited to the minimal extent necessary to ensure fulfillment of his functions under the Constitution and the law. The Emperor therefore has government-imposed restrictions on his ability to marry, own property, study and speak, above and beyond the restrictions permissible for ordinary citizens.
Corporate bodies are also afforded fundamental human rights to the extent possible given their status as non-natural persons. Certain rights not afforded to corporations include social welfare rights, physical rights and the right to vote.
Corporations may also have their fundamental rights restricted in order to protect the fundamental rights of natural persons. The Supreme Court reached this decision in a 1996 ruling involving political donations by an association of tax attorneys. The Court ruled that because membership in the association was mandatory for all licensed tax attorneys, the association would violate its members' rights by levying membership dues to engage in political advocacy.
Although the plain language of the Constitution restricts fundamental rights to "nationals," the Supreme Court has held that aliens should enjoy all fundamental rights other than those which, by their very nature, should be restricted to the enjoyment of Japanese nationals. Among the latter rights are:
- The right to enter or re-enter Japan
- The right to engage in political advocacy
- The right to vote
While these rights are, in the Supreme Court's view, not guaranteed for aliens under the Constitution, the Diet is also not precluded from conferring (or repealing) any of these rights by statute. For instance, aliens are allowed to submit opinions in administrative reviews (Administrative Procedure Act, article 39).
Restrictions on rightsEdit
The Constitution contains two separate but inter-related restrictions on the exercise of human rights, providing that they must remain aligned with "public welfare."
- Article 12: The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.
- Article 13: All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.
Two key cases have described the limitations of Article 13 in the context of prisons.
The first concerned the "right to smoke," which the Supreme Court deemed a protected right under Article 13, but one that is not protected in any particular place or at any particular time. (Grand Bench, Sep 16 1970)
The second concerned the right to read newspapers. The Supreme Court deemed that this right may only be restricted when there is an appropriate risk of harm to the order of the facility, and only to the extent necessary and reasonable for preventing such harm. (Grand Bench, Jun 22 1983)
It is a violation of Article 13 for a public official to photograph a person without their consent and without a valid reason. Photographing a person for the purpose of preserving evidence immediately following commission of a crime is protected so long as the photography does not exceed ordinarily permitted scope (Grand Bench, Dec 24 1969). Automatic speed-control photography on highways is also permitted in this context (Supreme Court, Feb 14 1986).
Publicizing criminal records has been the subject of two Supreme Court cases which held the practice unconstitutional.
In a case where an individual refused a blood transfusion for religious reasons but was given a transfusion anyway, the decision to refuse the transfusion was upheld as a fundamental human right which must be observed under Article 13 (Supreme Court, Feb 29 2000).
Article 13 also protects privacy rights regarding personal information. In a case where students attending a lecture were required to provide names, addresses and telephone numbers, and this information was disclosed to police without students' consent, the act was held unconstitutional as a violation of privacy rights (Supreme Court, Sep 12 2003).
- Article 14: All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
2) Peers and peerage shall not be recognized.
3) No privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it.
Article 14 has been raised in two attempts to overturn purportedly discriminatory provisions in the Civil Code.
The first attempt concerned Article 900.4, which gave legitimate children a stronger preference in intestacy than illegitimate children. The Supreme Court held that there was a "reasonable basis" for this provision based on encouraging marriage and protecting the rights of illegitimate children, and upheld the provision as constitutional (Grand Bench, July 5 1995).
The second attempt concerned Article 733, which allows men to remarry immediately following the end of their marriage but imposes a waiting period on women in the same position. For similar reasons, the Supreme Court upheld this rule, citing the reasonable basis of avoiding paternity disputes and questions over father-child relations (Dec 5 1995).
Article 14 was eventually successfully used to overturn a provision in the Nationality Act concerning the illegitimate children of Japanese fathers. The Supreme Court held that the provision had a reasonable purpose, but that the provision exceeded a reasonable scope in light of that purpose, and therefore would lead to unreasonable discrimination (Grand Bench, Jun 4 2008).
Article 14 has also been used to challenge local legislation on grounds of regional discrimination. Because allowing local legislation implies acceptance of discrepancies in regional law, these discrepancies do not constitute violations of the general equality guarantee in Article 14 (Grand Bench, Oct 15 1958).
Article 14 has also been used to challenge unequal treatment of income tax classifications (the so-called "Salaryman Tax Case"). In this case, the Supreme Court held that so long as such classifications are for a proper reason and are not clearly completely unreasonable to accomplish that reason, there is no violation of Article 14 (Grand Bench, March 27 1985).
The Civil Code contains a similar provision, Article 90, which prohibits discriminatory practices among private parties.
Rights of thoughtEdit
"Thought and conscience"Edit
- Article 19: Freedom of thought and conscience shall not be violated.
The Supreme Court has not clearly defined the meaning of Article 19, but has issued several key precedents under this Article:
- Constitutionality of apology advertisements. When a court orders the newspaper publication of an apology advertisement, this does not violate the freedom of thought and conscience so long as it is expressing the simple apology of the defendant to the victims (Grand Bench, Jul 4 1956).
- Constitutionality of voter review of Supreme Court justices (Grand Bench, Feb 20 1952).
- Constitutionality of private employment decisions based on employee beliefs. Article 19 only binds the government and does not directly bind private parties in private transactions. Employers are also recognized to have the freedom to contract based on beliefs of their counterparty (Grand Bench, Dec 12 1971).
- Article 20: Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.
2) No person shall be compelled to take part in any religious acts, celebration, rite or practice.
3) The State and its organs shall refrain from religious education or any other religious activity.
Key precedents under this Article include:
- Constitutionality of forced dissolution of a religious organization (Aum Shinrikyo case): In this case, a court was allowed to force the dissolution of a religious organization responsible for a 1995 chemical attack on the Tokyo subway. The Supreme Court upheld this verdict as it was "necessary and unavoidable," even though it would harm the freedom of religion of Aum followers (Supreme Court, Jan 30 1996).
- Constitutionality of government-sponsored Shinto festivals. In its first major analysis of Article 20.3 (Grand Bench, Jul 13 1977), the Supreme Court adopted a multi-prong test which examines the following factors:
- Location of the act
- Whether an ordinary person would view the act as religious
- Whether the motives and purpose of the act were religious
- Effects of the act on ordinary people
- Unconstitutionality of government donations to shrines, reached following the above analysis (Grand Bench, Apr 2 1997).
Rights of expressionEdit
- Article 21: Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
2) No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
- Constitutionality of bill posting restrictions in public areas
- Constitutionality of note-taking restrictions in court
- Constitutionality of restricting political acts by public servants
- Constitutionality of restricting political acts by judges
- Constitutionality of restricting door-to-door political advocacy
- Constitutionality of Education Ministry review of textbooks
- Constitutionality of censorship to protect criminal defendants
- Constitutionality of press restrictions surrounding criminal trials
- No constitutional right to equal time
- Constitutionality of censoring pornography: This is technically not construed as "censorship" under the Constitution because "censorship" refers only to the administrative restraint of expressions of thought.
- Limited constitutionality of court-ordered restraints on publication: Although this is also not "censorship" because of its judicial source, it is unconstitutional in limited cases where opinions related to matters of public administration are being restrained. In the latter case, private reputational rights are superseded by public rights to information. However, even court-ordered restraints on publication of such information can be constitutional if the information is clearly false, is clearly not being published for the public good, and would cause grave and irreparable harm to the subject if published (Grand Bench, Jun 11 1986).
Location, occupation and movementEdit
- Article 22: Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.
2) Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.
Key precedents under this article include:
- Constitutionality of restricting public bathhouse locations
- Unconstitutionality of restricting drugstore locations
- Constitutionality of licensing retail market locations
- Constitutionality of restrictions on foreign travel
- Article 29: The right to own or to hold property is inviolable.
2) Property rights shall be defined by law, in conformity with the public welfare.
3) Private property may be taken for public use upon just compensation therefor.
- Article 18: No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited.
- Article 31: No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.
- Article 33: No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed.
- Article 34: No person shall be arrested or detained without being at once infomed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.
- Article 35: The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article 33.
2) Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.
- Article 36: The infliction of torture by any public officer and cruel punishments are absolutely forbidden.
- Article 37: In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.
2) He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.
3) At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.
- Article 38: No person shall be compelled to testify against himself.
2) Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.
3) No person shall be convicted or punished in cases where the only proof against him is his own confession.
- Article 39: No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he had been acquitted, nor shall he be placed in double jeopardy.
Rights to petitionEdit
- Article 16: Every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials, for the enactment, repeal or amendment of laws, ordinances or regulations and for other matters; nor shall any person be in any way discriminated against for sponsoring such a petition.
- Article 17: Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official.
- Article 32: No person shall be denied the right of access to the courts.
- Article 40: Any person may, in case he is acquitted after he has been arrested or detained, sue the State for redress as provided for by law.
Social welfare rightsEdit
- Article 25: All people shall have the right to maintain the minimum standards of wholesome and cultured living.
2) In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health.
- Article 26: All people shall have the right to receive an equal education correspondent to their ability, as provided for by law.
2) All people shall be obligated to have all boys and girls under their protection receive ordinary education as provided for by law. Such compulsory education shall be free.
- Article 27: All people shall have the right and the obligation to work.
2) Standards for wages, hours, rest and other working conditions shall be fixed by law.
3) Children shall not be exploited.
- Article 28: The right of workers to organize and to bargain and act collectively is guaranteed.
- Article 96: Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify.
2) Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.