The Japanese government’s limitations of the church’s religious freedom are not among those authorized by Article 18.3 of the ICCPR.
by Patricia Duval
Article 2 of 5. Read article 1.
Under Article 18.3 of the International Covenant on Civil and Political Rights (ICCPR), the limitation (dissolution) brought to the right of Unification Church (“UC”) believers to manifest their beliefs should first be prescribed by law.
Article 81 of the Religious Corporations Act provides that a Court can order the dissolution of a religious corporation if it finds that “(i) in violation of laws and regulations, the religious corporation commits an act which is clearly found to harm public welfare substantially.”
- Japanese Law
In the case in point, the violation of laws would be constituted, pursuant to the dissolution claim of the Ministry of Education, Culture, Sports, Science, and Technology (“MEXT”), by the solicitation of donations found by some Japanese civil courts to be tortious (constituting a tort, a civil wrong) through the violation of social norms.
However, findings of tort (prejudice) in a civil case between private parties do not, in themselves, constitute violations of the law—contrary to what was maintained by MEXT in its plea for dissolution.
Article 709 of the Japanese civil code provides that “A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.”
This law article imposes to the author of a wrong (tort) to compensate the damage caused to third parties. A violation of this Article would be constituted by the author’s lack of compensation. The fact that the UC was sentenced to damages which were paid demonstrates in itself a compliance with Article 709.
The “Black’s Law Dictionary,” a legal reference bible for lawyers in the United States, gives the following definition of tort: “a civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages.”
A civil wrong is not a violation of the law.
MEXT maintains that the findings of tort against the UC imply that the UC violated Article 709 of the civil code. The main point of its claim is that the provision on torts contained in this Article prohibits the intentional or negligent infringement of any right of others.
But an article of law that would prohibit to everyone to do any wrong to others would be:
- completely utopian,
- so broad-scale that it could be applied in a totally discretionary and arbitrary manner as in totalitarian States,
- so vague that it would clash directly with all international human rights standards that Japan has committed to abide with.
As regards the need of precision and predictability of the law, see below in this article on the UN Human Rights Committee’s doctrine and case law.
Therefore, a finding of civil wrong cannot be interpreted as a violation of a civil law article providing for tort compensation.
In the present case, the UC violated no statutory law that could trigger its dissolution in application of Article 81(i) of the Religious Corporations Act.
The best proof of this is that the government has since had a new law enacted to repress “unjust solicitations.” In December 2022, the law on “Preventing Unjust Solicitation for Donations by a Corporation” was adopted to criminalize “unjust solicitation of donations” (Act No. 105 enacted on December 16, 2022).
So, the dissolution request based on tort cases was not prescribed by statutory law at the time of the Court rulings. And the new law cannot be applied retroactively.
Although Japan is a country of statute law, it could be alleged that case law is included in the term “violation of laws.” However, the Japan Supreme Court has ruled to the contrary. Violation of case law cannot be considered a violation of the law.
In the case of the dissolution order against Aum Shinrikyo, the Tokyo High Court ruled on the meaning of “violation of laws and regulations” in a request for a dissolution order filed by the prosecutor and the Tokyo Governor (appellate decision dated December 19, 1995). The Court held that “violation of laws and regulations” refers to acts that contravene the prohibitive or prescriptive norms established by statutory laws such as the Penal Code. The Supreme Court upheld this interpretation in its decision on January 30, 1996 (Supreme Court case no. 1996Ku8).
So, the dissolution requirement of “violation of laws” could not be based on a violation of case law either.
Therefore, Article 81(i) of the Religious Corporations Act cannot be a basis for the dissolution claim of the Japanese authorities.
It can be concluded that the dissolution request does not fulfill the requirement of being “prescribed by law” under Article 18.3 of the International Covenant on Civil and Political Rights that Japan has committed to abide with.
- Human Rights Committee’s doctrine and case law
Additionally, under the Covenant, the requirement of “prescribed by law” entails that the law should be sufficiently precise for citizens to be able to predict the sanction and adapt their behavior accordingly.
The UN Human Rights Committee is entrusted to oversee the good application of the Covenant by the State members and provides directions in this regard. It has especially elaborated on the requirement of “prescribed by law,” which is common to all the limitations to the rights protected by the Covenant.
For each of these rights, the possible limitations should all be prescribed by law. And the Committee’s case law (rulings on individual cases referred to it) on this requirement applies to all of these rights.
In its Comment N° 27 (on freedom of movement, Article 12 ICCPR), the Committee explained: “13. In adopting laws providing for restrictions permitted by article 12, paragraph 3, States should always be guided by the principle that the restrictions must not impair the essence of the right (cf. art 5, para. 1); the relation between right and restriction, between norm and exception, must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution” [emphasis added].
This point is particularly important in the present case where Article 81(i) of the Religious Corporations Law is at stake, which requires that the religious corporation must have committed “an act which is clearly found to harm public welfare substantially.”
The Human Rights Committee, in its successive reviews of Japan, has repeatedly found that public welfare is not a sufficiently precise criterion for limiting human rights.
In its Concluding Observations after the last session on Japan, the Committee made the following recommendation to the Japanese authorities in November 2022: “To clearly define the concept of ‘public welfare,’ so as to ensure that any restriction of freedom of thought, conscience or religion or freedom of expression on grounds of ‘public welfare’ are in accordance with those permitted under the Covenant.”
Public welfare in itself is not a sufficiently precise concept to serve as a basis for limiting the right to freedom of religion or belief. Consequently, Article 81(i) of the Religious Corporations Law should have long been amended to comply with the international instruments that Japan has committed to abide with.
In addition, for the requirement of “prescribed by law,” the Committee has specifically formulated that the limitation cannot be enshrined in traditional or customary law, such as “social norms,” a vague notion used by Japanese Courts.
In its Comment N° 34 (on freedom of expression), the Committee laid out: “24. Restrictions must be provided by law. Law may include laws of parliamentary privilege and laws of contempt of court. Since any restriction on freedom of expression constitutes a serious curtailment of human rights, it is not compatible with the Covenant for a restriction to be enshrined in traditional, religious or other such customary law. 25. For the purposes of paragraph 3, a norm, to be characterized as a ‘law,’ must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not” [emphasis added].
Similarly, in the area of freedom of religion or belief, the law providing for the dissolution of religious corporations cannot be as vague as to leaving it up to the Courts to determine whether a specific manifestation of belief violated “social norms” or harmed “public welfare.”
It can be concluded that the dissolution request against the Unification Church cannot be considered as being prescribed by law in the meaning of Article 18.3 of the Covenant.
