“Public welfare” and “social appropriateness” are not part of “public order” and are not admissible grounds to restrict freedom of religion or belief.
by Patricia Duval
Article 3 of 7. Read article 1 and article 2.
The next question is whether this restriction can be considered a legitimate aim under the criteria set out in the same article.
Did the dissolution pursue a legitimate aim?
Under Article 18.3 of the Covenant: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
The High Court ruled (VI, 1): ‘Moreover, conduct that constitutes a tort under Article 709 of the Civil Code and is clearly recognized as significantly harming the public welfare may be understood as conduct that infringes ‘public safety, public order, public health or morals, or the fundamental rights and freedoms of others,’ as referred to in Article 18(3) of the ICCPR.”
This statement is inherently false. The fact that something constitutes, in the understanding of Japanese courts, an infringement of public welfare does not imply that it constitutes a violation of public order, safety, health, or morals.
The concept of public welfare is so broad that it does not necessarily meet the specific criteria outlined in the treaty for falling within one of the categories of permissible restrictions on freedom of religion or belief.
In particular, about judicial decisions on civil liability, how could such decisions—which resolve disputes between private individuals—constitute a matter of public order falling within the scope of the State’s law enforcement policy?
According to an explanation in the Annotated Civil Code—a standard reference work in Japan—when determining illegality under civil liability law, a distinction is drawn between violations of written law and violations of unwritten norms, such as public order. (In Japanese, the terms “public order” and “public policy” are denoted by the same word.)
Pursuant to the Annotated Civil Code: “Even where an act does not directly violate any statutory provision, causing damage to another through conduct that is socially unacceptable constitutes a violation of public policy and good morals, and thereby entails illegality.”
Hence, the concept of public order or public policy in Japanese tort law should be understood as referring to the degree of public acceptability or social appropriateness of the behavior in question.
This differs from the concept of public order outlined in Article 18.3 of the Covenant.
In this provision, the term “public order”—or “public policy,” as it is usually called in common-law countries—must be understood in a strict sense: it refers to situations or areas in which the State must intervene to ensure the survival of society.
The “Black’s Law Dictionary” defines “public policy,” in its narrow meaning, as “the principle that a person should not be allowed to do anything that would tend to injure the public at large.”
This concept is far more restrictive than those of “public welfare” or “social appropriateness,” which might be relevant to tort law, but cannot be used to justify State regulation of freedom of religion.
Under the Covenant, States may not interfere in matters relating to religious practices, unless such interference is required by imperatives such as public safety or law and order. This is where criminal law applies, but that was not the case in the context of the dissolution.
In the 26 civil judgments against the Church on which the High Court based its decision, the solicitation of donations by Church members was found tortious because it violated “social appropriateness.”
The High Court summarized the criteria used in these civil courts’ findings: “However, even where the conduct consists of soliciting donations by a religious organization or its believers, such conduct does not escape the characterization of unlawfulness when it is carried out by methods or in a manner that exceeds the bounds regarded as socially acceptable.” This is far from being a matter of law and order.
In the Final Judgments, the courts formulated a general principle that soliciting donations is illegal. They articulated that “when solicitation activities are carried out by unduly instilling anxiety or fear in the other party, exploiting their psychological state, and when such donations or purchases of goods are conducted in a manner that cannot be said to be based on the free will of the person in question according to societal norms, or when they involve the expenditure of an unreasonably large sum of money, considering the actor’s social status, assets, or circumstances, thereby significantly deviating from what is generally considered acceptable by society, such solicitation or sales activities must be deemed antisocial. In such cases, they would inevitably be regarded as contrary to public order and morality, and thus illegal” (Tokyo District Court 15 Jan. 2008, Tokyo High Court 10 Sep. 2008).
Deviations from social norms and social acceptability may be taken into account by civil courts in determining civil liability in disputes between private individuals, and may be used to establish violations of public order and morality under Japanese civil liability law; however, they may under no circumstances be invoked to characterize a violation of public order within the meaning of Article 18.3 of the ICCPR.
Simply labeling a behavior as “antisocial” is not sufficient to demonstrate a degree of seriousness sufficient to justify invoking public order.
Proselytism is part of the right to manifest one’s beliefs under Article 18.1 of the Covenant. It is protected as such.
The UN General Assembly provided in the 1981 Declaration that the right to freedom of thought, conscience, religion or belief includes the following freedoms: “(d) To write, issue and disseminate relevant publications in these areas; (e) To teach a religion or belief in places suitable for these purposes; (f) To solicit and receive voluntary financial and other contributions from individuals and institutions” (Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, General Assembly resolution 36/55).
This right may be limited only in accordance with the conditions set out in Article 18.3 of the ICCPR.
If the solicitation by believers of the Unification Church were considered a threat to public order, Japanese criminal law would have all the necessary tools to suppress abusive proselytizing, such as provisions regarding intimidation (Art. 222), compulsion (Art. 223), extortion (Art. 249), or taking advantage of a person’s vulnerability (Art. 248).
These provisions have never been used to incriminate the solicitation of donations by members of the Unification Church.
This means that the allegations raised were not serious enough to warrant prosecution and that it was not deemed necessary to seek government intervention in this case.
It is therefore not a matter of public order in the meaning of Article 18.3 of the Covenant.
Additionally, the concepts of “social acceptability” or “social appropriateness” cannot justify State interference in matters of religion or belief.
The Human Rights Committee provided detailed explanations on the application of Article 18 of the Covenant (General Comment no. 22, 1993): “2. Article 18 protects theistic, non-theistic, and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”
States have a duty of neutrality in religious matters and cannot assess religious practices in light of “societal norms” or “social appropriateness” in this area.
Such concepts are not only unwritten and undefined but also illegitimate in the realm of religious beliefs and practices.
Ordering the dissolution of a religious association on the grounds of violations of social appropriateness and judgments rendered in civil liability proceedings constitutes an unacceptable attempt to extend public policy—as well as the scope of the State’s regulation—to religious practices.
This would allow States to intervene to protect their citizens from undesirable religious movements.
The dissolution ordered on such a basis cannot be considered to have pursued the legitimate aim of protecting public order. The same applies to the protection of morals for the same reasons.
Could it be considered, then, to have pursued the legitimate aim of protecting public safety? This must be answered in the negative, as the dissolution order would have to encompass public security issues, which it does not.
Could it be motivated by the protection of public health? The answer is also negative.
The only remaining legitimate objective under Article 18.3 would be the protection of “the fundamental rights of others.” However, this possibility has been strictly limited by international court case law.
Fundamental rights of others
In its plea for dissolution, the Ministry of Education, Culture, Sports, Science, and Technology (“MEXT”) maintained that: “From around 1980 to 2023, Unification Church believers caused significant damage to many people by making them donate or buy goods by restricting their free decision and preventing their normal judgment, which resulted in disrupting the peaceful life of many people including the family members of the guests [attendees of seminars or conferences].”
However, there is no such protected right, such as the right not to be disturbed by proselytizing from new religious movements.
Even if Article 81.1 of the law on the dissolution of religious associations was intended to protect the fundamental rights of others, this provision should not be applied in a manner that infringes upon the rights guaranteed by Article 18, namely the right to freedom of religion for believers.
The Human Rights Committee laid out in Comment 22: “Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18.”
In cases where a State claims to pursue the legitimate aim of protecting fundamental rights of others, it is necessary to strike a fair balance between, on the one hand, the fundamental right of the Church’s faithful to express their faith and to seek to convince others, and, on the other hand, the fundamental right to freedom of conscience of those who complain about this proselytism or their relatives who oppose the spread of that religion.
This balance is necessary to protect the fundamental right to proselytism against undue limitations on freedom of religion.
As previously mentioned, the State actually has a duty to stay neutral and protect religious beliefs and practices, even if they “are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”
The UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, addressed limitations based on the rights and freedoms of others in her 2005 report on the Elimination of all forms of religious intolerance. She addressed the subject of proselytism and the limitations that can be imposed in accordance with article 18.3 of the Covenant: “However, it should be noted that this article allows for restrictions only in very exceptional cases. In particular the fact that it mentions the protection of ‘fundamental rights and freedoms’ of others as a ground for restriction indicates a stronger protection than for some other rights whose limitation clauses refer simply to the ‘rights and freedoms of others’ (e.g. article 12, 21 and 22)” (Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, 30 September 2005, A/60/399).
This means that the right to freedom of religion can be limited only in the name of the fundamental rights of others, a more restrictive limitation than that provided for other rights in the Covenant.
She then concluded regarding missionary activities: “It could indeed be argued that the freedom of religion or belief of others can be regarded as such a fundamental right and freedom and would justify limitations to missionary activities, but the freedom of religion and belief of adults basically is a question of individual choice, so any generalized State limitation (e.g. by law) conceived to protect others’ freedom of religion and belief by limiting the right of individuals to conduct missionary activities should be avoided.”
Consequently, State intervention to protect others’ rights against proselytism is confined to extreme cases. It would be permitted, for example, in cases of forced conversions as provided for at Article 18.2 of the Covenant: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”
This would apply in particular to cases of forced de-conversion (“deprogramming”) of members of the Unification Church, thousands of whom have been victims of this illegal practice for more than half a century in Japan.
It would justify State intervention to abide with Article 98, para.2, of the Constitution and Article 18 of the Covenant, as stated by the Human Rights Committee in a recommendation to Japan in 2014 (CCPR/C/JPN/CO/6): “Abduction and forced de-conversion. The Committee is concerned at reports of abductions and forced confinement of converts to new religious movements by members of their families in an effort to de-convert them (arts. 2, 9, 18, 26). The State party should take effective measures to guarantee the right of every person not to be subject to coercion that would impair their freedom to have or to adopt a religion or belief.”
However, in the absence of any coercion or harm to individuals under criminal law (such as, as mentioned above, intimidation, coercion, extortion, or taking advantage of a person’s vulnerability), proselytizing falls under the protected right to express one’s beliefs.
Patricia Duval is an attorney and a member of the Paris Bar. She has a Master in Public Law from La Sorbonne University, and specializes in international human rights law. She has defended the rights of minorities of religion or belief in domestic and international fora, and before international institutions such as the European Court of Human Rights, the Council of Europe, the Organization for Security and Co-operation in Europe, the European Union, and the United Nations. She has also published numerous scholarly articles on freedom of religion or belief.
