JAPAN: Religion and the “public welfare” principle 1. Betraying Japan’s international obligations
By keeping in its Constitution and laws the principle that religions may have their activities restricted and even be suppressed in the name of “public welfare,” Japan violates its international obligations.
by Patricia Duval
Bitter Winter (14.03.2025) – In the wake of the Universal Declaration of Human Rights signed in the aftermath of World War II, the United Nations has adopted a series of human rights treaties to elaborate further on the various human rights protected by the international community.
This is the case in particular with the International Covenant on Civil and Political Rights (“ICCPR” or “Covenant”), which entered into force in 1976, and which Japan signed in 1978.
However, the Japanese authorities have ever since ignored this commitment and silently betrayed the international community, as most Japanese people in Japan itself are unaware of it.
Article 18.1 of the Covenant protects “the right to freedom of thought, conscience and religion,” which right includes “freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
Therefore the right protected under the Covenant includes the right to manifest one’s religion or beliefs in community with others, through the establishment and maintenance of religious institutions.
Article 18.3 lays out the few permissible cases when States can enact legislative restrictions to this right: “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 cases of permitted limitations are to be strictly construed and the protection of “public welfare” is not part of them.
However, like Russia, which has invented a new concept of “spiritual security” to justify repressing religious minorities, Japan has created, in blatant contravention of the Covenant provision, another exception to this freedom: protection of “public welfare” and respect for “social norms.”
When Japan adopted its new Constitution after World War II in 1946, it expressed its desire to regain prestige amongst the international community, after its alliance with the Nazi regime and the appalling horrors of Hiroshima: “We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationships, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want.”
Japan thereby committed to protect fundamental rights of its citizens, in particular the right to freedom of religion under Article 20 of the Constitution.
However, the Japanese Constitution provides a major exemption from the obligation to respect this right, which is inconsistent with Japan’s commitments under international human rights law.
Article 12 of the Constitution reads: “The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.”
This provision implies that these freedoms, in particular freedom of religion or belief, can be restricted in cases of infringement of “public welfare.”
As a matter of fact, when in 1951 Japan enacted the Religious Corporations Act, which regulates the status and functioning of religious corporations, it included a limitation to this freedom based on public welfare.
Article 81 of the Act provides that courts can order the dissolution of religious corporations when “in violation of laws and regulations, the religious corporation commits an act which is clearly found to harm public welfare substantially.”
Thereby, the right to the status of religious corporation can be restricted for the protection of “public welfare,” a vague and arbitrary term that has no place in matters of religion or belief, in particular when deciding on the legal “death” of a religious entity.
Considering these restrictions, both in the 1946 Constitution and the 1951 Act, the Japanese authorities, when they signed the Covenant in 1978 and committed to Article 18.3 which provides that no limitation can be enacted other than those restrictively listed, should have modified their national instruments accordingly.
This is particularly true in consideration of Article 98 of the Constitution which provides: “The treaties concluded by Japan and established laws of nations shall be faithfully observed.”
Therefore, when Japan signed and ratified the Covenant, it should have subsequently amended Article 12 of its Constitution to erase the public welfare exception, and Article 81 of the Religious Corporate Act to erase infringement of public welfare as a basis for dissolution.
Doing otherwise reveals that Article 98 of the Constitution is merely a smokescreen for outsiders, and that Japan never had the intention to uphold its commitments in total disregard of its treaty co-signatories.
Keeping “public welfare” in the Constitution and in the Religious Corporations Act as a basis for dissolution of religious corporations is tantamount to saying that if a religion displeases a majority of people, then it can be eradicated.
Protection of public welfare is very different from protection of public order, which is a permitted limitation under the Covenant, and which was a valid basis for example to severely punish the authors of the criminal sarin gas attack by Aum Shinrikyo in the Tokyo subway in 1995.
Public welfare intends to protect the wellbeing of the public at large, not their security. When applied to religious matters, it intends to protect the wellbeing of the public against minority beliefs or practices in the absence of any public order or security issue.
This is incompatible with Article 18 of the Covenant. The UN Human Rights Committee—the body of independent experts that monitors implementation of the Covenant by its States parties —has elaborated on Article 18 in Comment 22: “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.”
Hence, the very essence of Article 18 implies a duty of neutrality on the part of member states in religious matters and their duty of protection of religious minorities against “predominant” hostility.
Protection of “public welfare” represents the antithesis of it. It actually turns out to be a tool particularly convenient for the Japanese authorities to take repressive measures against religious minorities, when hate speech has spread in the media for several years with the government’s blessing and has incited the public at large to hate the religious groups in question.
Photo: The original copy of the Constitution of Japan, which includes the controversial reference to “public welfare.” Credits.