YASUKUNI SHRINE (JINJA) VISITS CONSTITUTIONALITY
Keywords: Constitutional Law, Freedom of Religion, Separation of Church and State

Sometimes the Bible provides the greatest of wisdom as in the Proverbs. “Let he who is without sin cast the first stone” is one of the great ones. Long ago I was astonished to find that the loudest critics of Japan’s policy of requiring foreigners seeking extended stays in Japan should be fingerprinted, the South Koreans, imposed the exact same requirements on foreigners in the same conditions in South Korea. Now today, there is great uproar over the visits of Japanese Prime Minister Koizumi to the Yasukuni Shrine. Again the loudest protestors hardly have clean hands. The overwhelming majority of Japanese are pacificists and regret the actions of their military during WWII. On the other hand, we have the Chinese and Koreans screaming over these visits. Yet China, in its actions have in 2004 twice invaded Japanese territorial waters with military submarines while the North Koreans, who fired a missile directly over Japan a couple of years ago, walked threateningly out of international atomic regulation, loudly whisper they already have nuclear weapons. Even in South Korea, many of the best-selling books involve the North nuking Japan out of existence. Let us also not forget China’s expropriation of all of Tibet and threatening world war over its less than substantial claims over Taiwan. Yet they sanctimoniously snarl their disapproval when a Japanese leader visits a religious shrine exercising his right to freedom of religion. The rest of the world hardly takes note nor feels these emotions, certainly not in the US, which also had its war with Japan. China has emphasized the point by making it clear that the Chinese leadership will not visit Japan as long as Koizumi continues these visits.
    In 2004, several Japanese courts made rulings on these visits to the Yasukuni Shrine by PM Koizumi. The decisions uniformly disagreed. Some found the visits unconstitutional, others dismissed the case. The constitutional issue involved the separation of church and state. The Prime Minister always justified it as exercising his freedom of religion and that the visits were not official in nature.  While some courts made much to do about whether the Prime Minister visited in his official capacity, as he signed the guest book as Prime Minister, brought his official secretary, and used a governmental car, others found such factors irrelevant. All in the end awarded no damages to the plaintiffs and the Prime Minister announced he would continue his visits. The reason that the courts awarded no damages was that the courts found that the visits in no way damaged the rights of the plaintiffs.
    Yasukuni Shrine was established to honor Japanese war dead from the mid-19th century. It is a Shinto shrine under Japan’s traditional religion that was basically official before the end of the war. It was made more controversial when its priests added  the names of WWII war criminals including war-time Prime Minister Tojo to those honored at the shrine.
    The court finding the visits unconstitutional in 2004 was the Fukuoka District Court, The Matsuyama District Court did not find the visit unconstitutional as it did not rule on the issue. The Chiba District Court refused to find the visit unconstitutional, although ironically, it called the visits official.  The Osaka District Court had made a similar ruling in February, but then in June in another case in June found the visits private in nature.  In 1991 the Sendai High Court held that official visits to the shrine by the prime minister unconstitutional and the Supreme Court upheld that on appeal. In 1992 the Osaka and Fukuoka High Courts also found such official visits unconstitutional. Some have argued that constitutional law rulings are only binding if made by the Supreme Court.

    In a somewhat similar case, in June 2004 the Supreme Court ruled that use of government funds for prefectural officials to attend the enthronement of the emperor in 1990, even though it involved Shinto rites, did not violate the constitution’s prohibitions on the government engaging in religious activity. The court classified the activities as participating in social protocol. Likewise, spending by the Tokyo Metropolitan government for its part of the enthronement ceremonies in 1990 were also ruled appropriate by the Tokyo High Court and did not infringe on the prohibition of separation of religion and state.

Copyright 2005. All rights reserved Attorney Roderick H. Seeman

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