Freedom of religion or belief should always be taken into account when dealing with the dissolution of a religious body.
by Manabu Ishizaki
Article 4 of 6. Read article 1, article 2, and article 3.
Dissolution Orders under the Religious Corporations Act and the Right of Religious Organizations to Acquire Legal Personality
1. The Scope of the Freedom of Religion Guaranteed by Article 20, Paragraph 1 of the Constitution
Regarding the content of freedom of religion, the so-called three-part theory is the prevailing view.
According to Nobuyoshi Ashibe, its content consists, first, of the “freedom of belief,” meaning the freedom of each individual to decide, at their own discretion, whether to hold religious beliefs or not, and to choose and change the religion they believe in (Nobuyoshi Ashibe, “Constitutional Law: Human Rights [1],” 2000, pp. 122–24).
Second, it includes the “freedom of religious acts,” namely the freedom, in connection with one’s faith, to establish places of worship or religious halls, and to perform acts, such as worship, prayer, and other religious ceremonies, rituals, and events, as well as proselytizing, either individually or in association with others (to this extent, the freedom of religious association is also encompassed). In this regard, Ashibe explains that “the freedom to publicize and disseminate religious doctrines—that is, the freedom of proselytization—directly constitutes a matter of freedom of expression” (Nobuyoshi Ashibe, “Constitutional Law: Human Rights [1],” cit., p.124).
Third, according to Ashibe, the scope of the freedom of religion also includes the “freedom of religious association,” the concrete content of which consists of “the freedom to form religious organizations” and “the freedom to join, not join, or withdraw from such organizations” (Nobuyoshi Ashibe, “Constitutional Law: Human Rights [1],” cit., p. 125).
This opinion asserts that within the third component of freedom of religion—namely, the freedom of religious association—the right of religious organizations to acquire legal personality, as explained in Section II above, is included.
2. Dissolution Orders under the Religious Corporations Act and the Right of Religious Associations to Acquire Legal Personality
(1) The Concrete Content of the Right of Religious Associations to Acquire Juridical Personality
Under the position advanced in this opinion, Article 20, paragraph 1 of the Constitution guarantees religious organizations a right to acquire legal personality. As can be seen from the scholarly theories discussed in Section II, as well as from the French legal system and French public law doctrine, this right may be understood as one that requires the state to establish a system through which religious organizations may obtain legal personality, enables them to seek and acquire such legal personality under that system, and guarantees their continued use of it once acquired.
In Japan today, the Religious Corporations Act provides that a “religious organization,” defined as a group whose principal purpose is “to disseminate religious doctrine, conduct rituals and ceremonies, and educate and nurture believers” (Article 2), may establish a juridical person by obtaining certification (Supreme Court decision [March 31, 1966] recognizing limited substantive review in certification procedures) from the competent authority (the prefectural government) (Article 12). Regarding the nature of this Act, Hajime Tajika (Professor of Constitutional Law at Kindai University) explains that it should be understood as “a purely legal-personality–conferring statute, not intended to regulate religious activities by imposing restrictions on freedom of religion” (Hajime Tajika, “The Religious Corporations Act and State Authority,” “Hogaku Kyoshitsu,” no. 515 [2023], p. 52).
William Parsons Woodard, who served on the Religious Affairs Division of the Allied Powers’ General Headquarters in Japan at the time of the Act’s enactment, later recalled that “the purpose of this law was solely to enable religious organizations to obtain legal personality,” and that it “took an extraordinarily long time to persuade Japanese officials of this point” (William P. Woodard, “The Emperor and Shinto” [Japanese translation], Simul, 1988, p. 111).
In this way, the Act is legislation whose primary purpose is to confer legal personality on religious organizations, and it may be evaluated as legislation that concretizes the right of religious organizations to acquire legal personality guaranteed by Article 20, paragraph 1 of the Constitution.
Accordingly, religious organizations in Japan possess, under Article 20, paragraph 1, of the Constitution and the Religious Corporations Act, a concrete right to acquire legal personality and to continue using it.
(2) Dissolution Orders against Religious Corporations as a Restriction on the Right to Acquire Juridical Personality
Therefore, denying a religious organization the acquisition of legal personality, or depriving a religious organization of legal personality once it has been obtained, constitutes a restriction on the concrete right—grounded in the Constitution and statute—of religious organizations to acquire legal personality. For religious organizations of a certain scale or larger, legal personality is indispensable for maintaining and developing their activities and for engaging in external relations; Article 20, paragraph 1 of the Constitution guarantees the right to acquire legal personality on this premise.
Although this right to acquire legal personality is not a purely classical liberty right but also has aspects of a claim right, the denial of legal personality, or its deprivation once conferred, constitutes a restriction of that right. This is analogous to the way in which the “right to know,” guaranteed under Article 21, paragraph 1 of the Constitution and concretized through information disclosure legislation, is restricted by decisions of state organs to withhold information, or the way in which the “right to maintain the minimum standards of living,” guaranteed under Article 25, paragraph 1 and concretized through public assistance legislation, is restricted by standards established by the state.
(3) The Standard for Constitutional Review of Restrictions on the Right of Religious Organizations to Acquire Legal Personality
The question, then, is how constitutional review should be conducted with respect to laws and regulations that restrict religious organizations’ right to acquire legal personality. Legal personality is an indispensable legal device that enables a group to act within the legal order; once conferred, the group becomes the bearer of various rights and obligations in that sphere. Accordingly, for a group, acquiring legal personality and continuing to use it constitute important rights.
Indeed, the Supreme Court of Japan has held, in the Yawata Steel Works case, that “the provisions of Chapter III of the Constitution concerning the rights and duties of the people should, insofar as their nature permits, be understood as applicable also to domestic juridical persons” (Grand Bench, June 24, 1970, “Minshu,” ol. 24, No. 6, p. 625; Supreme Court decision [June 1, 1988], “Minshu,” vol. 42, No. 5, p. 277). In this sense, legal personality also serves as a basis for the attribution of constitutional rights.
Accordingly, when the state refuses to grant legal personality to a group, or deprives it of legal personality once it has been acquired, it effectively denies that group the precondition for enjoying a wide range of rights, including constitutional rights. For that reason, the constitutionality of such laws and regulations must be reviewed under a strict standard.
That said, in the present case, the issue is not the constitutionality of Article 81, paragraph 1, item (i) of the Religious Corporations Act as a statutory provision governing dissolution orders, but rather its application to the appellant in this special appeal. What is therefore required is a constitutionally conforming interpretation of that provision. Specifically, it is necessary to interpret, in a manner consistent with the Constitution, the phrase “an act that violates laws and regulations and is clearly found to substantially harm the public welfare” contained in Article 81, paragraph 1, item (i).
Because this provision employs the abstract concept of “public welfare,” if applied without any limiting interpretation, it would inevitably function as a clause permitting excessive restrictions on religious organizations’ right to acquire legal personality. To avoid such a result, it is necessary to impose a constitutionally conforming interpretation on this language.
Concretely, it is necessary to determine how Article 81, paragraph 1, item (i) balances the right of religious organizations to acquire legal personality—guaranteed under Article 20, paragraph 1 of the Constitution—against the competing interests it seeks to protect.
Manabu Ishizaki (photo omitted for privacy reasons) is a Japanese constitutional scholar and professor in the Department of Law, Faculty of Law, Ryukoku University. Born in 1968 in Kanagawa Prefecture, he graduated from the Department of Law at the Faculty of Law, Meiji University, in 1992. He completed the doctoral program at the Graduate School of Law, Ritsumeikan University, in 1997. He became an assistant at the Faculty of Law, Asia University in 1998, a full-time lecturer in 1999, and an associate professor in 2002. He became a professor at the Ryukoku University Law School in 2010 and at the Faculty of Law, Ryukoku University, in 2017. Professor Ishizaki specializes in constitutional law, with research focusing on modern human rights theory, Article 9 of the Japanese Constitution, and the rights of persons with a psychiatric disability. His major publications include “The Transition of Human Rights” and “Real Constitutional Law” (co-edited).
