As noted in January, the Japanese Supreme Court held that Sunagawa city’s allowing the free use of its land by the Sorachi-buto shrine violated two provisions of the Japanese Constitution: Art. 20(1) (“No religious organization shall receive any privileges from the State, nor exercise any political authority.”) and Art. 89 (providing that “[n]o public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority”). However, the Supreme Court also reversed a removal order issued by the appellate court, saying that such a removal would prevent the believers of that shrine from exercising their religious freedom guaranteed by the other clause of Article 20(1) of the Constitution (“Freedom of religion is guaranteed to all”). The Court pointed out that the city could develop alternatives, including the possible sale or rental to the shrine of the portion of public land on which the religious establishment sits. As a result, the Court remanded the case to the appellate court at Sapporo, on the ground that the lower court failed to use the inquisitorial approach – which is allowed in administrative lawsuits such as this one – to remind the city of other possible alternatives.
Note that the suit was filed as administrative litigation and thus courts found no difficulty reviewing the case. The Local Autonomy Act allows a citizen to sue the prefecture and municipality in which he or she resides for constitutional violation by the local government. Unlike a civil action, the resident plaintiff can get a court judgment on the merits WITHOUT showing individual harm to his/her constitutional/statutory rights or legally protected interest.
On April 20, Sunagawa city announced that the city would sign a lease as suggested by the Supreme Court decision in order to dispel the questioned constitutional violation. The plaintiffs said that they would argue on remand that the only redress is the removal of the shrine from the city’s property. In my opinion, a lease in such case will not be a constitutional alternative-it remains the government entanglement with the religion.
–Tokujin Matsudaira, Tokyo University