Life, Law & Liberty in Japan - IPBA 2012

in JapanOh-Ebashi LPC & PartnersShiro Kuniya

Table of contentsⅠ Right to Life3Ⅱ Personal Liberty61, Psychological Freedom2, Economic Freedom3, Physical Freedom4, The Limitation of the Personal LibertyⅢ To protect Personal Liberty 191, Rule of Law2, Fighting the Threat to Rule of LawⅣ Conclusion 2

Ⅰ. Right to Life1.Fundamental Human RightsConstitution, Article 11The people shall not be prevented from enjoying anyof the fundamental human rights. Thesefundamental human rights guaranteed to the peopleby this Constitution shall be conferred upon thepeople of this and future generations as eternal andinviolate rights.3

Ⅱ. Personal Liberty-Psychological(1) Freedom of One’s mind - ThoughtConstitution, Article 19Freedom of thought and conscience shall not beviolated.• If the people have any views of the state, theworld, and the life, these views are absolutelyfree from the power of the state as long as theseare in their minds.7

Ⅱ. Personal Liberty-Psychological(1) Freedom of One’s mind - ReligionConstitution, Article 20(1) Freedom of religion is guaranteed to all. No religiousorganization shall receive any privileges from the State,nor exercise any political authority.(2) No person shall be compelled to take part in anyreligious act, celebration, rite or practice.(3) The State and its organs shall refrain from religiouseducation or any other religious activity.• Religion was separated from the State.• Religious activities prohibited by the constitution arethose which assist, promote, enhance, or suppressinterference with religion.8

Ⅱ. Personal Liberty-Psychological(1) Freedom of One’s mind -AcademicConstitution, Article 23Academic freedom is guaranteed.• Based on the history that academic freedom and thecontents of academic theories were violated by powerof the state (Case of Professor Takigawa).• This article also guarantees authority in a university(Case of Poporo in Tokyo University, Judgment of theSupreme Court, May 22,1962)9

Ⅱ. Personal Liberty-Psychological(2) Freedom of ExpressionConstitution, Article 21.Freedom of assembly and association as well asspeech, press and all other forms of expression areguaranteed.• The scope is fairly broad, covering Freedom of assembly, association, press, broadcasting…… Right to know which is regarded as a prerequisite to thefreedom of expression.10

Ⅱ. Personal Liberty-Psychological(2) Freedom of Expression• Freedom of expression enjoys the highest ofguarantees, since it forms the basis of ademocratic society.• Freedom of the press serves the right to know indemocratic society because the press providespeople with important information about nationalpolitics (Case of Hakata Station, Judgment of theSupreme Court, November 26, 1969).11

Ⅱ. Personal Liberty2. Freedom of EconomicConstitution, Article 22Every person shall have freedom to choose and change hisresidence and to choose his occupation to the extent thatit does not interfere with the public welfare. Freedom ofall persons to move to a foreign country and to divestthemselves of their nationality shall be inviolate.Constitution, Article 29The right to own or to hold property is inviolable.Property rights shall be defined by law, in conformitywith the public welfare. Private property may be takenfor public use upon just compensation therefor.12

Ⅱ. Personal Liberty3. Physical FreedomConstitution, Article 18No person shall be held in bondage of any kind.Involuntary servitude, except as punishment forcrime, is prohibited.Guarantee of Due Process13

Ⅱ. Personal Liberty-Physical freedom(1) Due Process of LawConstitution, Article 31No person shall be deprived of life or liberty, norshall any other criminal penalty be imposed,except according to procedure established by law.This provisioncovers・・Substantive due processProcedural due process•Not be vague•Should be reasonable•Should be fairThe right to notice and hearing14

Ⅱ. Personal Liberty-Physical freedom(2) The Rights of Defendants and SuspectsIn Criminal ProcedureThe Constitution guarantees…• No person shall be apprehended(Article 33)• No person shall be arrested or detained(Article 34)• The right of all persons to be secure in their homes,papers and effects against entries, searches and seizuresshall not be impaired (Article 35)• No person shall be compelled to testify against himself(Article 38)The Code of Criminal Procedure was totally amended in1948 based on the constitution.15

Ⅱ. Personal Liberty-Physical freedom(3) Be Presumed Innocent Until Proven GuiltyCriminal code, Article 336When the case under public prosecution does notconstitute a crime or has not been proven to be acrime, the court shall render a not guilty verdictin the judgment.16

Ⅱ. Personal Liberty-Public WelfareThe Limitation of Human RightsConstitution, Article 12The freedoms and rights guaranteed to the people by thisConstitution shall be maintained by the constantendeavor of the people, who shall refrain from anyabuse of these freedoms and rights and shall always beresponsible for utilizing them for the public welfare.• When contrary to the basic principle of public welfare,even the right to life is forfeited or legislative restricted(Judgment of Supreme Court, March 12, 1948).17

Ⅱ. Personal Liberty-Public WelfareJudicial Precedents•Even the freedom of expression is not guaranteedinfinitely, it must be limited for the benefit of other interestsby reasonable and unavoidable restrictions (Judgment ofSupreme Court, March 16, 1993).•Freedom of expression and freedom of conscience,require stronger guarantees than economic rights.It is unavoidable that the exercise of freedoms orrights brings people into conflict with the interestsof others, and that under certain circumstances theserights and freedoms may have to be restricted.18

Ⅲ. To Protect Personal Liberty1. Rule of Law Rule of Man(1) Respect for the Basic human rights(2) Due process of law(3) The constitution is the supreme lawThis Constitution shall be the supreme law of the nation and nolaw, ordinance, imperial rescript or other act of government, orpart thereof, contrary to the provisions hereof, shall have legalforce or validity(Constitution, Article 98).(4) Respect for the judiciaryThe Supreme Court is the court of last resort with power todetermine the constitutionality of any law, order, regulation orofficial act(Constitution, Article 81).19

Ⅲ. To Protect Personal Liberty2. Fighting the Threat to Rule of Law(1) Antisocial ForcesAct on Prevention of Unjust Acts by OrganizedCrime Group Members, Article 1This Act shall take necessary regulations forviolent acts conducted by the gangster thereby itintends to secure the peace and safety of civil life,and to protect the freedoms and rights of citizens.20

Ⅲ. To Protect Personal Liberty2. Fighting the Threat to Rule of Law(2) CorruptionPenal code, Article 197(1)A public officer who accepts, solicits or promises to accepta bribe in connection with his/her duties shall be punished..Unfair Competition Prevention Act, Article 18(1)No person shall give, or offer or promise to give, anymoney or other benefits to a foreign public officer for thepurpose of having the foreign public officer act or refrainfrom acting in a particular way in relation to his/herduties….21

Ⅲ. To Protect Personal Liberty2. Fighting the Threat to Rule of Law(3) Contempt of Court• No contempt of court in Japanese law, but Court Actprovides court rules.Court Act, Article 71(1)The presiding judge or a single judge who has opened the sessionshall maintain order in the court.(2) The presiding judge or a judge who has opened the session mayorder any person who interferes with the exercising of the dutiesof the court or who behaves improperly, to leave the court, andmay issue such other order or take such measures as are necessaryfor the maintenance of order in the court.Court act provides sanction provisions ( Article,73)22

Ⅳ. ConclusionThe mission of an Attorney•Social JusticeAttorney Act, Article 1(1) An Attorney is entrusted with the mission of protectingfundamental human rights and achieving social justice.(2) An Attorney shall in keeping with the mission specifiedset forth in the proceeding paragraph, perform his/herduties in good faith and endeavor to maintain the socialorder and to improve the legal system.23