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ROTECTION OF PROPERTY RIGHTS AND

DUE PROCESS OF LAW

IN THE JAPANESE CONSTITUTION

NOBUSHIGE U1KAI* and NATHANIEL L. NATHANSON**

I. THE RELATIONSHIP BETWEEN THE JAPANESE AND AMERICAN DUE PROCESS CLAUSES

A. The Issue

Some writers find a reflection of the due process clauses of the fifth and fourteenth amendments of the United States Constitution in Article 31 of the 1946 Japanese Constitution. Article 31 provides: "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Obviously there are disparities as well as similarities between this article and the American due process clauses.' Since the Japanese Constitution was framed under the direction of the Supreme Com mand Allied Powers (SCAP), during the allied occupation, the similar ities are not surprising. In the words of an Indian Supreme Court judge: 2

One of the characteristics of the [Japanese] Constitution which undoubt edly bespeaks of direct American influence is to be found in a lengthy chapter, consisting of 31 articles, entitled, "Rights and Duties of the People," which provided for the first time an effective "Bill - Rights" for the Japanese people.

Many of those articles reflect other provisions of the American Bill of Rights. Consequently, the natural surmise is that Article 31 of the Japanese Constitution is derived from the due process clauses of the United States Constitution.

Nevertheless, even if one clause is derived from the other, there are reasons for questioning whether their meanings are therefore substan tially the same. The differences in wording are significant. But more important is the divergent historical development of the two pro visions.

B. Historical Development of Due Process in the United States

The interpretation of due process in American constitutional his tory may be divided into four stages. During the first period, before the American Civil War, it was limited almost entirely to matters of procedure. As Mr. Justice Story said in his Commentaries, the fifth amendment "in effect affirms the right of trial according to the process and proceedings of the common law."'

The second period of interpretation began after the Civil War and the adoption of the fourteenth amendment. During this period a broader view of the due process clause was urged. Thus when a law conferring a monopoly on the slaughtering of livestock was challenged as violative of due process, this view was supported by at least two of the dissenting justices.' Gradually this "substantive" view of the due process clause gained additional support, and in 1897 the Court un animously held that it was a violation of due process for a state to forbid its residents from making contracts with out-of-state insurance companies.' More important than the Court's decision was its reason ing, which embraced this statement: 6

The liberty mentioned in that amendment [the fourteenth] means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avo cation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclu sion the purposes above mentioned.

                       The third stage covers the period in which this broad view of the substantive reach          of the   due process clause dominated the scene and resulted in the invalidation of many          laws,   such as those establishing maximum working hours, minimum wages, and various             forms  of price control and licensing.7

The fourth period began in the early days of the New Deal and extends to the present. During this period the use of due process as a substantive restriction upon the regulation of the economy has been largely suspended or abandoned."

It seems quite likely that the lawyers on General MacArthur's staff who drafted the Japanese Constitution were strongly influenced by the legal developments of the New Deal and were in favor of the due process interpretation of the fourth period. Furthermore, some Japa nese scholars assert that Article 31 of the Japanese Constitution should be interpreted as limited to procedural due process not only as a direct inference from the American experience, but also on the basis of Japanese social and economic development.

C. The Significance of Differing Phraseology

The deletion of "property" and the substitution of "procedure es tablished by law" for "due process of law" characterize the Japanese Constitution when compared with that of the United States. This change is also seen in the Indian Constitution." -Both were patterned more or less closely on the due process clauses of the United States Constitution. Article 31 of the Japanese Constitution mentions only "life and liberty," whereas the fifth and fourteenth amendments of the United States Constitution use the phrase "life, liberty and property." Article 21 of the 1948 Indian Constitution, closely resembling the Japanese clause, provides: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Apparently the judges of the Indian Supreme Court attach considera ble significance to the similarity in expression of the Indian and Japa nese provisions and their common departure from the American. For in 1950 the Supreme Court of India sustained the validity of the Pre ventive Detention Act partly on the ground that "the Constituent Assembly had before it the American article and the expression due process of law but they deliberately dropped the use of that expression from our Constitution."'"

1. Significance of the Omission of "Property."-Let us consider more fully the significance of this difference in phraseology so far as Japan ese constitutional law is concerned. Considering first the omission of the word "property," it should be noted that the rights of property are explicitly protected by other provisions of the Japanese Constitution. Article 29 in particular contains three important stipulations:

1. The right to own or to hold property is inviolable.

2. Property rights shall be defined by law, in conformity with public welfare.

3. Private property may be taken for public tise upon just compensation therefor.

It is natural to surmise that the word "property" was omitted from Article 31 because property rights are explicitly protected in Article 29. Indeed, substantially the same guarantees and qualifications of property rights now included in Article 29 were originally set forth in three separate articles of what is frequently referred to as the Mac Arthur draft of the Constitution. Thus the guarantees of property rights and personal liberties which were treated together in the fifth amendment of the American Constitution were deliberately placed in separate articles in the Japanese Constitution. It must be remem bered, however, that the line between property and personal rights is not always distinct. Thus the provision of Article 22 which guarantees to every person the right "to choose his occupation to the extent that it does not interfere with the public welfare" and the provision of Article 28 which states that " [ t] he right of workers to organize and to bargain and act collectively is guaranteed" may be thought of in part as pro tection of one's property interest in his own labor.

It is also noteworthy that the Japanese Constitution states in Article 13 that the "[r]ight to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs." This article may be regarded as a legacy from Thomas Jefferson who gave John Locke's phrase "life, liberty and property" a more human istic flavor by substituting "pursuit of happiness" for "property," when he transplanted it into the Declaration of Independence.

The foregoing discussion suggests that the omission of the word "property" from Article 31 was not intended to deprive property interests of a substantial measure of constitutional protection. It is perhaps more open to debate whether such protection is to be achieved through Article 31 itself, or only through other provisions of the Con stitution.

2. Significance of "Procedure Established by Law."-There is his torical support for the view that the substitution of "procedure estab lished by law" for the American phrase "due process of law" is not of great significance. Coke in his Institutes asserted that the phrase "law of the land" used in the Magna Carta is equivalent to "due proc ess of law."' The Indian Supreme Court, on the other hand, took the view that the deliberate omission of the word "due" from Article 21 of the Indian Constitution lent strength to the contention that the reasonableness of a law was not a justiciable question under the Indian Constitution.14 It is also of some interest that the original draft of the Japanese Constitution submitted to the Japanese Government by SCAP used the phrase "procedure established by the Diet" instead of "procedure established by law." Later the Japanese Constituent As sembly substituted the word "law" for "Diet," but since there is no record left, we do not know why this change was made.' 5

II. Tn MEANING OF ARTICLE 31

A. The Issue

Broadly speaking, there are three issues which are decisive in the interpretation of Article 31:

(1) Is it limited to procedural due process, or does it include sub stantive questions as well?

(2) Is it limited to criminal sanctions or can it be extended to administrative sanctions as well?

(3) Does it control the content of the law or can it be satisfied so long as the forms of law are provided, irrespective of their fairness or reasonableness?16

The narrowest interpretation views Article 31 as limited to the guarantee of criminal procedures stipulated in laws passed by the Diet; the broadest interpretation views it as including administrative as well as criminal sanctions, applying to substantive as well as pro cedural matters, and requiring not only that there be a law, but also that the law be just.

In Japan, scholars have a variety of views ranging from the narrow est to the broadest.' Some believe that Article 31 means that sub stantive as well as procedural requirements must be established by law, but that only the procedural requirements must conform to natural justice or due process. Others believe that both procedural and substantive matters must be stipulated by law, but in neither case are the courts to adjudicate the validity of their content, except insofar as they may contravene some other more specific provision of the Con stitution.

When it was discussed in the Constituent Assembly, Mr. Kimura, then Minister of Justice, in the course of answering questions from the members, said that Article 31 controlled not only criminal but also administrative matters and not only procedural but also substantive stipulations."8 This statement was an expression of opinion by the

presiding government official suggesting that the scope of Article 31 was broader than its exact wording.

This background indicates the vagueness of legislative intention existing on the part of the Constitution makers. It is not too clear whether they had in mind the American due process stipulation, let alone the historical development of its interpretation. Professor Hideo Tanaka has stated that the members of the SCAP staff intended to avoid the broad interpretation of the due process clause, taking a lesson from the American experience of the turn of the century.

Be that as it may, the situation in Japan is somewhat different from that in the United States. Japan still requires stronger guarantees than the West, lest the lack of the historical background for freedom should prove a fatal defect in the whole constitutional structure of its society. Therefore the broadest interpretation of Article 31 should be favored, including the implications of due process. At the same time, certain inherent limitations on the exercise of judicial power should be recog nized, such as the requirement of justiciability and the avoidance of purely political questions.

B. Judicial Interpretation

The first few cases which involved Article 31 were concerned with problems of delegated legislative authority. These cases dealt with the imposition of criminal penalties, including (a) Cabinet and Minis try orders, (b) rules of the National Personnel Agency pertaining to the civil service, and (c) local by-laws or ordinances. Although the particular type of delegation is different in each of these situations, the general principle is the same-so long as the authority to issue the regulations is explicitly delegated by the legislation, and the regula tions issued are within the limits of the delegation, they are valid.

The first case of this type concerned a delegation under the Food Control Law." The law itself explicitly provided for delegation of controls over the distribution of food through cabinet order. The Cabinet order in turn delegated control over the transportation of staple foods to the Minister of Agriculture, to be enforced by such penalties as were stipulated in the law. The petitioner claimed that the delegation of authority to include penalty provisions in cabinet orders was explicitly provided for in Article 73(6), as an exception to Article 31, and was therefore to be strictly limited to that form of order; consequently the cabinet order could not delegate to a lower form of order the definition of acts to be punished under the law. The Su preme Court rejected this contention, holding that the law implied authority to sub-delegate by cabinet order to other forms of order. The only limitation was that the framework within which lower orders could control must be stipulated by the cabinet order. Penalties stipu lated by the law were not affected.

The second case arose under the National Civil Service Law.2 The statute provided that political actions of civil servants should be re stricted in accordance with regulations issued by the National Person nel Agency, violations of such regulations to be punishable in accord ance with provisions of the statute. Personnel Agency Rule 14-7 defined the meaning of "political acts" and "political purposes" as used in the statute. It said, inter alia, that political purposes include support of or opposition to a particular candidate in an election for public office, and that political action includes utilization of the title or authority of public office and other public or private influence. The penalty for violation was that stipulated in the statute. The Su preme Court, after analyzing the rule, held that it was not substan tively unconstitutional and did not transgress the limits set forth in the statute. Consequently, there was no occasion for the application of Article 31 of the Constitution.

The third case concerned the validity of a city ordinance prohibiting various forms of vice. The Supreme Court, relying on precedent, stated that the delegation of the power to prescribe penalties through local by-laws was not contrary to Article 31, and therefore not uncon stitutional. The penalty for violation of the ordinance or by-law was provided for by the statute2 3 which established a maximum of two years' imprisonment and 100,000 yen fine. But the exact delegation was different here than in the previous cases because the statute es tablished only the limits of the penalty, permitting each by-law to stipulate the exact penalty for its violation within those limits.

In general the above cases discussed the propriety of defining crimi nal conduct through forms of law other than a statute passed by the Diet; this problem can be solved by application of the general theory of delegated legislative authority.

Now we turn to cases presenting the question whether the content of a law complies with the principle of Article 31.

1. Lower Court Cases.-There have been a few lower court decisions which struck down statutes because, while following the form of law, the statutes were thought to be in conflict with the fundamental idea of due process implied in Article 31. One example is a decision of the Osaka District Court, rendered in 1962, holding invalid a provision of a law controlling possession of guns, swords and similar weapons.24 The provision in question made it a crime not to report the acquisition of guns immediately. This provision was declared invalid because the word "immediately" was considered too indefinite and vague.

Another decision of the Osaka District Court held invalid a provi sion of the Local Government Employees Law which prohibited com pletely, on pain of criminal punishment, all strikes by local govern ment employees. 5 The Court concluded that the law violated Article 18 (involuntary servitude) and Article 28 (the right to organize and bargain collectively) because it prohibited all strikes, absolutely and indiscriminately. Moreover, because there was no reasonable or sub stantial ground for prescribing punishment in all such cases, it also violated Article 31.

Similarly, in the well-known "Sunakawa Case" involving the United States-Japan Security Treaty, the Tokyo District Court declared in valid as a violation of Article 31 of the Constitution a special penal law based on the executive agreement between the United States and Japan, because it imposed substantially heavier punishment than that imposed by the general Misdemeanor Law for similar offenses. 6 The court reasoned that there was no justifiable ground for such a dis tinction if the stationing of American forces in Japan was in violation of Article 9 of the Constitution, as the court found.

Finally, the action of the warden of a prison prohibiting a convicted prisoner awaiting the death penalty from subscribing to a newspaper was declared invalid by the Osaka District Court to be a violation of the spirit of Article 31 of the Constitution."

Although these cases show a strong appreciation on the part of some lower courts of the importance of safeguarding the, fundamental rights of the people, it is obvious that this "due process" theory of Article 31 will not be a panacea for all the mistakes of government. This is particularly evident since the higher courts did not sustain the deci sions of the district courts just mentioned. Thus the question whether the theory of "due process" has been imported into the Japanese Con stitution must be confronted.

2. Supreme Court Cases.-This question was considered by the Su preme Court in a decision rendered in November of 1962.2 The Court held unconstitutional and void a statutory provision for the forfeiture of property used in smuggling but allegedly owned by an innocent third party. The defendants had conspired to export goods illegally to Korea; without permission from the customs authority they loaded a ship with cargo and weighed anchor, but a storm turned them back into port, resulting in the failure of their plan. The courts of first and second instance, following earlier precedents of the Supreme Court, did not discuss the validity of Article 83(1) of the Customs Law (Kanzeihd). The Supreme Court reversed the lower court decision and held the statutory provision invalid. 9 The statute did except from forfeiture goods owned by innocent third parties; however, it did not provide any method of notice to them or opportunity for them to present their defenses.

The Supreme Court stated that forfeiture of the property of an innocent third party was extremely unreasonable if no opportunity for notice and presentation of his defenses was afforded him. The Court concluded: 0 "Since there is no stipulation in Article 83(1) or in the Articles of Criminal Procedure about these matters, it is contrary to Articles 31 and 29 of the Constitution to confiscate property owned by a third party."'"

The position taken by the Supreme Court in this case seems to be a long step toward the Western idea of procedural due process. Indeed the principle that fair procedure is required by natural justice seems to be clearly accepted by the Japanese Supreme Court.

This decision also seems to mean that the former minority has now become the majority in giving a broader interpretation to Article 31. As Mr. Justice Harlan said in his dissent in Poe v. Ullman:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.

Perhaps the fact that the opinion of the Japanese Supreme Court is changing shows a similar trend in the development of Japanese law. The concept of due process may well play an even more important role in Japan than it has in the United States in light of the historical development of Japanese society.

III. THE FUTURE ROLE OF DUE PROCESS

When the Japanese Constitution was drafted by the General Head quarters staff, the officers in charge were particularly conscious of the American experience with the problems of constitutional interpreta tion. They knew how the United States Supreme Court had denied the validity of laws required by changing social conditions, and how se verely the Court had been criticized by scholars and law-makers sym pathetic to such reform legislation for the conservative way it had handled the due process clause. The American lawyers drafting the Japanese Constitution gave serious consideration to this history and inserted into Chapter III, affirming the "Rights and Duties of the People," positive recognition of governmental power to control indivi dual economic freedom in the interests of the public welfare. For example, Article 27(2) provides that the "Standards for wages, hours, rest and other working conditions shall be fixed by law." Thus legis lators are clearly free under the Constitution to regulate wages and working hours on the basis of economic and social conditions despite the encroachment of such laws upon the individual right of freedom of contract and there can be no constitutional challenge on this ground under either the Labor Standards Law33 or the Minimum Wage Law."

Nevertheless, the proper balance between human rights and govern mental power must be sought at every stage of the historical develop ment of society. Sometimes such human rights as freedom of expres sion, freedom of religion, and freedom of conscience need particularly strong safeguards against governmental encroachment; at other times material interests are similarly in need of protection.

The situation in Japan is such that stronger protection is needed for both the former human rights and the expression of personal rights through material interests. Professor Gellhorn's comment that the Japanese Constitution does not give sufficient protection to property rights has merit. 5 In addition because Japan's tradition of human freedom is not as solid as that in the United States, strong guarantees of due process are needed, although there should be some exceptions permitted because of the nature of administration. 6

A. Due Process in Land Ownership

One of the crucial questions at this time is that of land ownership. When General MacArthur proposed a constitution to the Japanese government, he included two articles which read as follows:

Article 28. The ultimate fee to the land and to all natural resources reposes in the State as the collective representative of the people. Land and other natural resources are subject to the right of the State to take them, upon just compensation therefor, for the purpose of securing and promoting the conservation, development, utilization and control thereof.

Article 29. Ownership of property imposes obligations. Its use shall be in the public good. Private property may be taken by the State for public use upon just compensation therefor.

These articles were not accepted by the Japanese government on the ground that they were too close to nationalization of land and natural resources. The Japanese government was not in favor of such a sweeping negation of private ownership. Nevertheless by now the Japanese Court should accept the basic conception of limitation of ownership incorporated in this proposal.

This idea of limited ownership was in fact acknowledged in the land reform case, Tanaka v. Japan.17 There the former landlord whose land was bought by the state to be given to the former tenant at a very small price sued the government for just compensation, asserting that the compensation provided violated the just compensation clause of Article 29 of the Japanese Constitution.

Three different theories were suggested for sustaining the constitu tionality of the land reform program. According to Professor Kawa shima, the farm lands owned by large feudalistic landlords are not appropriately included in the property guaranteed by Article 29 of the Japanese Constitution. He reasons that all the modern constitutions came into existence after the abolition of feudalistic land ownership and therefore their guarantees apply only to the property rights of a modern capitalistic society. This theory is ingenious especially be cause it brings a historical perspective to bear on the interpretation of the Constitution. However, as a principle of interpretation it is not satisfactory because it lacks precision in distinguishing between feud alistic property and nonfeudalistic property. Even farm land owner ship has become capitalistic and only those regulations stipulated in the civil law can be applied to land ownership in modern Japanese society.

The second theory assumes that the price paid in the land reform program is not just compensation as stipulated in Article 29, and there fore the measure is clearly contrary to that provision of the Constitu tion; but that nevertheless the program was to be treated as valid because land reform was laid down as an occupation policy. This theory assumes that SCAP could simply ignore any constitutional limitations in contravention of its policies. A similar reform could not be repeated by the Japanese government itself under the present Constitution but as far as the past program is concerned there would be no problem. This theory too is quite ingenious but sounds like justification for what was done by the occupation alone. It provides no legal explanation for what was subsequently done by the Japanese government under a valid constitution.

The third theory was adopted by the Japanese Supreme Court in a decision of the Grand Bench, December 27, 1953, sustaining the land reform program." The fair value of farm land was calculated as the capitalization of actual income realized from the land. Since the income was controlled by the governmental policy regulating the price of rice and other produce, the capitalized sum was necessarily limited, and this limited sum was held to be the appropriate price of the land.

Application of this theory to other possible acts of nationalization might raise some interesting problems. Suppose for instance, the gov ernment was to restrict the dividend rate of a certain type of stock and then capitalize this rate for the purpose of buying the stock and nationalizing that particular industry. The only acceptable justifica tion for lowering the price of the stock in this way would be another principle embodied in the Constitution, i.e., the principle of social welfare embodied in Article 25. But such discriminatory regulation di rected at one particular type of stock would also raise a substantial question of equality under law, guaranteed by Article 14 of the Con stitution.

B. Due Process in Land Use

Achieving a proper balance between free competition (private prop erty) and social justice (the public welfare) should be regarded as the basic ethos of the present Japanese Constitution. This idea is clearly embodied in Articles 22 and 29 of the Constitution." The individual right of freedom to engage in economic activities is guaranteed in these articles subject to a clear limitation in the interest of the public wel fare as defined by law.

Such coordination between individual freedom and social justice, achieved through law, is one of the basic purposes of present-day legislation especially in the field of economic activities. An outstand ing example of this is land use control. One of the basic aspects of the land problem is that land use cannot be increased except with the social investment in transportation and other public utilities. This means that the landowner profits by a rise in the price of land which is caused not by his own work, but rather by social investment for public purposes.

Another aspect of the problem is that land at a particular location cannot be replaced by some other land; if the particular land is needed for a public purpose and the landowner does not consent to sell, it must be taken by the power of government. However, in order not to be unfair to the particular owner he must be given just compensation. Urbanization in the modern world requires stronger controls over land and the extent to which private enterprise involving land is restricted increases accordingly. There also arise new types of land use. For instance, a new law, 0 enacted in 1966, provides for the establishment of distribution centers outside concentrated and high traffic areas; in order to create the new distribution business area, land can be ex propriated according to the Land Expropriation Law.

We have to be careful in coordinating the interests of the public and the private property owner. Land reform in Japan transferred large land holdings from the feudalistic landowners to free working farmers thus stimulating their interest in greater production. This land transfer was one of the reasons for the rapid economic development in post-war Japan. However, land values in urbanized areas can be increased not so much by the work of the landowner as by public investment in utilities. Urban land use can therefore properly be restricted much more severely than farm land use.

However, if the restriction affects only a particular group of people, they should be justly compensated for their loss. Let us consider, for instance, the new City Planning Law. According to this law the city planning area is to be divided into urbanized and controlled urbaniza tion areas. The City Plan will include establishments such as roads, railroads, terminals, parks, waterways, schools, houses, and distribu tion business4" areas. Development activity is not to be permitted in the controlled urbanization area, unless the plan fits the conditions set forth in the law.

This kind of restriction may cause quite a difference in the price of the land in each of these two areas. The control of real property for the sake of the public welfare is necessary, but if it causes inequality among landowners, those who suffer economically should be justly compensated.

The same is true in the case of a bill which, if enacted, would establish a basic plan for        land utilization whereby each land utilization area is to be divided into various sections             with an appropriate land use for each section designated. There is no stipulation regarding         com pensation even though a tract of land is designated as a "green sec tion,)45 except that          the landowner may ask for the purchase of it by the government.

It is not easy to give fair treatment to everyone in such complex situations but the aim of the law is to provide equal treatment, without any discrimination. Equality is also guaranteed in Article 14 of the Constitution where it is stipulated that "[a]ll of the people are equal under the law." Consequently, if a law does create inequality or dis crimination without justification, it should be judged unconstitutional as contravening Articles 14 and 31. Article 31 should serve as the basic bulwark against any kind of discriminatory, unreasonable and unfair encroachment upon the fundamental human rights guaranteed under Japan's democratic form of government.