2002.07.11

1999(Gyo-Tsu)93

Minshu Vol.56, No.6, at 1204

Judgment upon the case concerning the participation of the prefectural governor in the Daijo-Sai ceremony was found not to be against Article 20, para.3 of the Constitution

Claim based upon the inhabitant's action

Judgment of the First Petty Bench, dismissed

Miyazaki Branch, Fukuoka High Court, Judgment of December 1, 1998

Participation of the prefectural governor in the Daijo-Sai ceremony is not against Article 20, para.3 of the Constitution in the light of the circumstances as indicated, where Daijo-Sai is a traditional ceremony normally conducted at the time of the succession of the throne, the governor merely participated with other participants and vowed, and the participation was intended to congratulate the enthronement of the emperor as part of the conventional courtesy of a person who holds a public office.

The Constitution Article 20 1 Freedom of religion is guaranteed to all. No religious organization shall receive any privileges for the State, nor exercise any political authority. 2 No person shall be compelled to take part in any religious act, celebration, or practice. 3 The State and its organ shall refrain from religious education or any other religious activities.

The jokoku appeal shall be dismissed. The cost of the jokoku appeal shall be borne by the jokoku appellant.

I. On points 2 and 3 of the representatives for the jokoku appeal, KAMEDA Tokuichiro, KONO Satoshi, NISHIDA Ryuji, MATSUDA Kimitoshi, KOBORI Kiyonao, and MASUDA Hiroshi: 1. The Constitution has introduced an unconditional freedom of religion in the light of the fact that since the Meiji Restoration, the state and Shintoism became closely related and caused various disadvantages, and in order to further ensure its guarantee, created the provisions, Article 20, para.1, latter part, para.3, and Article 89, based upon the doctrine of the separation of the state and religion. The provision on the separation of the state and religion is a provision of institutional guarantee and does not directly guarantee the freedom of religion per se, but by guaranteeing the separation of the state and religion as an institution, indirectly intends to guarantee the freedom of religion. The doctrine of the separation of the state and religion which is the basis of the provision on the separation of the state and religion of the Constitution and is the guiding principle of its interpretation requires that the state is religiously neutral, but does not completely disallow the state from becoming involved with religion. The doctrine should be understood to prohibit the involvement of the state with the religion which exceeds the reasonable limit in relation to the basic goal of the institution, i.e. the guarantee of the freedom of religion, in the light of the social and cultural conditions of Japan by taking into consideration the purpose and effect of the act which represents the involvement with the religion. In the light of the doctrine of the separation of the state and religion understood in this way, 'religious activities' in the context of Article 20, para.3 of the Constitution does not mean every activity of the state and its agencies which is related to religion, but only those whose level of involvement exceeds the reasonable limit as mentioned above, and more specifically, acts whose purpose is religious, and its effect is to assist, enhance, promote, or suppress, interfere with religion. Whether a given act qualifies as a religious activity as mentioned above should be determined objectively and in accordance with the socially acceptable sense, not being solely influenced by the appearance of the act, but by taking into consideration the place the given act has taken place, the religious assessment of the general public of the act, the intention, purpose and the existence and the level of the religious consciousness of the person in performing the given act, the effect and influence the given act would have on the general public and other circumstances (Supreme Court, 1971 (Gyo-Tsu) No.69, the Judgment of the Supreme Court, Grand Bench, July 13, 1977, Minshu Vol.31, No.4, p.533; Supreme Court, 1992 (Gyo-Tsu) No.156, the Judgment of the Supreme Court, Grand Bench, April 2, 1997, Minshu Vol.51, No.4, p.1673, etc.). 2. Based upon the above views, the present case shall be examined in the following: According to the facts lawfully established by the original instance court, daijo-sai is a ceremony in which the emperor gives thanks to the ancestors and the gods in heaven and the land for peace and the harvest of various crops and, for the state and the populace, prays for peace and the harvest, and was conducted in a Daijo-palace with Shintoist installations in accordance with the Shintoist ritual. Therefore, the participation and the vowing of the jokoku appellee who is the governor of the Kagoshima Prefecture have an involvement with religion. However, according to the facts lawfully established by the original instance court, (1) Daijo-Sai is an important traditional ceremony of the imperial household normally performed at the time of the succession of the throne since the 7th century although there were occasional interruptions, (2) the jokoku appellee, invited by the Imperial Household Agency, merely participated in a Yukiden Kusen-no-gi ceremony together with the heads of the three powers, ministers and the heads of the local public organisations and vowed, (3) the participation of the jokoku appellee in the Daijo-sai ceremony was intended to celebrate the enthronement of the emperor who is the symbol of integration of the nation and the Japanese people on the occasion of the traditional ceremony of the imperial household at the time of the succession to the throne by the emperor as a social courtesy of a person who holds a public office as a governor of the local public organisation. [Summary] In the light of the above, the purpose of the participation of the jokoku appellee in the Daijo-Sai ceremony was to extend a social courtesy to the emperor who is the symbol of the integration of the nation and the populace on the occasion of the traditional ceremony of the imperial household at the time of the succession to the throne by the emperor, and its effect does not comprise assistance, promotion or enhancement of a specific religion, or suppression of or interference with it. Therefore, the level of involvement with religion of the participation of the jokoku appellee in the Daijo-Sai ceremony cannot be regarded to have exceeded the reasonable limit in relation to the basic goal of institution, i.e. the guarantee of the freedom of religion in the light of the social and cultural conditions of Japan and is not against the constitutional doctrine of the separation of the state and religion and the provisions on the separation of the state and religion based upon this doctrine. The above is clear from the judgments of the grand bench quoted above. The ruling of the original instance court which is in line with them can be upheld, and there is no error in the interpretation of Article 20, para.1 and 3 of the Constitution in the judgment of the original instance court. Other arguments of unconstitutionality lack the premise. The arguments of the jokoku appellants cannot be accepted. II. On other grounds for the jokoku appeal: The argument points out the insufficiency and inconsistency in the reasoning, but in substance, is a claim of the errors in fact-finding and do not fall within any of the grounds provided by Article 312, para.1 and 2 of the Code of Civil Procedure. Thus, the justices unanimously rule as the main text of the judgment.

JusticeFUKAZAWA Takehisa JusticeISHIMA Kazutomo JusticeFUJII Masao JusticeMACHIDA Akira JusticeYOKOO Kazuko