Lawsuit over the Jichinsai of Tsu

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The legal dispute over the Jichinsai of Tsu ( Japanese 津 地 鎮 祭 訴訟 Tsu jichinsai soshō ) led in 1977 to a key decision by the Supreme Court of Japan on the relationship between state and religion in Japan . It was the first time that the Supreme Court had dealt with this legal issue.

background

This decision has a decisive influence on the understanding of Article 20 of the Japanese Constitution in Japanese case law . This article, like Article 89, was strongly influenced by the background of the historical experience of State Shinto - de facto the state religion of Japan from the Meiji period to the occupation of Japan - which was abolished after the surrender of Japan . The two articles in question are as follows:

“ 1 Freedom of religion is guaranteed to everyone. No religious community may be granted special rights by the state or exercise any political power.
2 No one may be compelled to participate in any religious act, celebration, custom or practice.
3 The state and its organs must abstain from religious education or any other religious activity. "

- Article 20 of the Japanese Constitution

"Public funds or other public property may not be issued or made available for use by any religious institutions or associations, for their benefit or maintenance, or for charitable, educational or charitable works that are not subject to public supervision."

- Article 89 of the Japanese Constitution

However, this constitutional separation of religion and state turned out to be problematic in the practice of Japanese jurisprudence. a. This is because the relevant law on religious communities in Japan, the Law on Religious Societies ( 宗教 法人 法 , shūkyō hōjinhō ) of April 3, 1951, does not make any or only very diffuse substantive provisions on the content of religion or its activities . This was the reason why, in the legal dispute over the Jichinsai von Tsu, the Supreme Court saw itself prompted to make a key decision on the relationship between state and religion for the first time.

facts

In the Japanese city of Tsu (Mie Prefecture), a municipal sports hall was built in 1965 in the Sendō-chō district. The client was the chief clerk of the education department of the city of Tsu, Itō Yoshiharu. Before the construction work began, the Shinto priest Miyazaki Yoshinaga, high priest of the Shinto shrine Ōichi-jinja (responsible for the Ujigami or Ubusunugami of the building site), as well as three other priests were commissioned to hold a ceremony with which the spirits living in the property were commissioned should be reassured. Such a ceremony is called Jichinsai ( 地 鎮 祭 ). The Jichinsai was held on January 14, 1965.

From the city's budget, 7,663 yen were paid for this (4,000 of which were as fees for the priests, 3,663 as expenses for the offerings in Jichinsai; converted, the amount should have been about 84.93 DM at the time). December 1964 was approved by the city parliament. The action in this legal dispute was directed against this, alleging that the separation of state and religion required by Articles 20 and 89 of the constitution was violated here. The lawsuit was brought by a communist MP in the city parliament of Tsu, the defendant was formally the then mayor of Tsu.

The lawsuit had been dismissed in the first instance by the Tsu District Court on the grounds that Jichinsai was an ancient custom that was only formally outwardly similar to a religious ceremony. In the second instance, however, the complaint was upheld by the Nagoya Higher Regional Court . The Supreme Court overturned this ruling in the appellate court and finally dismissed the action, i.e. denied a violation of the constitution.

The distinction between ( secularized ) traditional events and religious activities was particularly controversial in the proceedings , since the arguments of both parties to the dispute depend on the interpretation of this distinction.

Decision of the Nagoya High Court

The Nagoya Supreme Court ruled on May 14, 1977 that the defendant had to repay the costs of the Jichinsai (plus interest) to Tsu City and to bear the legal costs. On the other hand, the plaintiff's request for compensation for pain and suffering was not granted.

In the extensive justification of its decision, the higher court repeatedly referred to the historical context in which the relevant articles of the constitution were to be interpreted. The higher court emphasized the importance of the radical separation of state and religion, which is intended by the constitution and without which the guarantee of religious freedom would be impossible. In negative evidence for this view, it cited various pieces of evidence from Japanese history, in which religious freedom in Japan had been undermined by the state through its interference in intra-religious matters (including the law on religious communities ) and the unity of cult and Government ( 祭 政 一致 , saisei-itchi ).

Furthermore, the higher court tried extremely meticulously to define and differentiate religion and customs. After the presentation and assessment of numerous individual factors (including the religious-phenomenological character of all individual acts of Jichinsai and its religious-historical genesis) and their assessment by experts and experts, it came to the conclusion that ultimately only those social events could be considered customs that have their religious significance as far as possible would have lost (the higher court named as examples including the setting up of Christmas trees , the throwing of beans at the Setsubun and the Hina-Matsuri ). Religion is defined in this sense as "[...] the conviction of the existence of supernatural , superhuman beings (ie of an absolute being, a creator, a supreme existence, etc., especially of gods, Buddhas, spiritual beings, etc.) as well as feelings and actions of reverence and admiration “In addition, it came to the assessment that the shrine Shinto was a religion (a view that was not taken for granted at the time) and that this Jichinsai was a genuine ritual of the shrine Shinto (which it also did in various ways Buddhist schools), the ceremony in question was a religious ritual and thus a ritual in violation of paragraph 3 of Article 20 of the constitution because it was authorized by public political authorities.

Supreme Court decision

The Supreme Court, in a majority decision of 10 to 5 votes on July 13, 1977 overturned the Nagoya Supreme Court's judgment and declared the Jichinsai of Tsu to be constitutional. It gave the following reasons for this:

First, the decision turned against an understanding of the constitution that seeks to radically exclude any relationship between state and religion. However, because of the high proportion of religion in society on the one hand and the task of the state to regulate social life on the other, this is not practicable and, contrary to the purpose of the regulations, would conversely lead to discrimination and unreasonable conditions. According to a radical understanding, state support for private universities with a religious background would have to be omitted, the state should not employ pastors in prison and the financial support of cultural monuments would also be prohibited if they had religious significance. The court rejected this radical interpretation, stating "[...] that in the real state it is virtually impossible to achieve a complete separation of state and religion".

Instead, according to the purpose and effect of the act in question, it should be examined whether the relationship of the state (which is in principle obliged to religious neutrality) to religion exceeds the appropriate level in the individual case and is therefore likely to impair religious freedom. That was not the case in the present legal dispute: The Jichinsai had a primarily secular purpose and no particular support for Shinto by the state or an impairment of freedom of belief could be ascertained.

In addition, the Supreme Court contradicted the higher court with regard to the religious character of Jichinsai: The purpose and effect of the ceremony in question had little religious significance as a routine laying of the foundation stone. In the consciousness of the common man, Jichinsai is presumably not understood as a religious ceremony because of its long-standing general custom and has also objectively had no meaning for an active form of the spread of faith, so religious activity in the sense of an act that restricts freedom of belief has neither directly through the executive priests, nor indirectly through the state, did not take place. In its decision, the higher court had previously rejected the assessment by the general population as a criterion because “[...] it [i. e. the general population] to differentiate and limit the two areas [i. e. Sacred and profane] lack of rational judgment, that it is religiously very superficial ”. In its reasoning, however, the Supreme Court demanded that the view of the average citizen be taken into account in order to be able to determine the objectively justified limits of the separation of state and religion.

Effect and meaning

Subsequently, the case law of the Supreme Court remains with this standard. It then depends on the purpose and effect of the action in question, which in turn would have to be assessed according to the general average understanding in society. In most of the decisions (e.g. 1993 on the legal dispute over the Ireisai of Minō ), as in this legal dispute, a violation of the constitution was denied. A well-known exception is a 1997 decision in which direct payments from the state budget to the Yasukuni Shrine were first classified as unconstitutional.

The decision of the Supreme Court in the legal dispute over the Jichinsai von Tsu is one of only 24 that are published in an anthology in German translation. It is also included in the authoritative Japanese constitutional law rulings.

Individual evidence

  1. ↑ So the translation in Lokowandt
  2. ↑ a b Quoted from the translation by Andreas Kley ( http://www.cx.unibe.ch/~ruetsche/japan/Japan3.htm ( Memento from May 19, 2007 in the Internet Archive ) ).
  3. ↑ a b Lokowandt 1981, p. 11.
  4. ^ Decision of the Higher Regional Court of Nagoya of May 14, 1971, website of the Supreme Court.
  5. ↑ See Lokowandt 1981, especially p. 11 f. and 89-128.
  6. ↑ Quoted from Lokowandt 1981, p. 103.
  7. ^ Supreme Court of July 13, 1977, website of the Supreme Court.
  8. ↑ See Lokowandt 1981, especially p. 13 f. and 145-152.
  9. ↑ Quoted from Lokowandt 1981, p. 148.
  10. ↑ Quoted from Lokowandt 1981, p. 111.
  11. ^ Supreme Court of April 2, 1997, website of the Supreme Court.
  12. ↑ Eisenhardt et al. a. (Ed.), Japanese decisions on constitutional law in German.
  13. ↑ Takahashi et al. a. (Ed.) Kenpō hanrei hyakusen (100 selected decisions on constitutional law), Volume 1, 5th edition 2007, p. 96 f.

literature

  • Ernst Lokowandt: On the relationship between the state and Shintô in Japan today: a collection of materials (Studies in oriental religions; Vol. 6). Otto Harrassowitz, Wiesbaden 1981. ISBN 3-447-02094-6 .
  • Toshiyoshi Miyazawa (translated by Robert Heuser and Kazuaki Yamasaki): Constitutional Law (Kenpō) . Heymanns, Cologne 1986, Japanese Law Series, Volume 21. ISBN 3-452-20464-2 .
  • Junichi Murakami: Property Inauguration Case; Separation of state and religion. In: Eisenhardt u. a. (Ed.): Japanese decisions on constitutional law in German . Heymanns, Cologne 1998 (Japanese Law Series, Japanese Jurisprudence Sub-Series Volume 1), pp. 259–286. ISBN 3-452-23504-1 .

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