Current Controversies on the Control of Religious Organizations in Japan


CURRENT CONTROVERSIES ON THE
CONTROL OF RELIGIOUS

ORGANIZATIONS IN JAPAN

YASUHIRO OKUDAIRA"

During the early days of 1995, it looked as if Japan was under some
curse. On January 7, the Kobe area was struck by an earthquake of great
magnitude, killing more than 5,500 people and injuring thousands more as
well as causing property damage on an enormous scale. And on March 20,
highly poisonous sarin gas was released in various places throughout the
Tokyo subway system, depriving 12 people of their lives and causing
injuries to hundreds more. Ten days after the subway incident, on March
30, Koji Kunimatsu, Inspector General of the National Police Bureau, was
the victim of an unknown, would-be assassin. All of these unusual events
took place in rapid succession within a very short time.

In light of the widely held belief that the Tokyo metropolis, despite
its dense population and high level of industrial activity, was one of the
safest cities in the world, the sarin incident in the Tokyo subway system
greatly shocked people throughout the world. It became all too clear that
any populous place in the world could be a target of attack by fierce and
indiscriminate terrorists.

A few days after the subway incident, the police had a clue about who
committed the crime. They were almost certain that some members of a
religious organization called Aum ShinrikLyo ("Supreme Truth Sect"), under
the direction of its guru, Shoko Asahara, had placed containers of sarin in
certain subway cars with the intention of murdering people and inciting
serious social disorder. Various facets of Aum Shinrikyo were exposed in
great detail in daily newspaper and TV reports.

Before the Tokyo sarin incident, it was rumored that Aum Shinrikyo
was responsible for committing a variety of crimes, including abductions,
illegal confinements, firearms violations, kidnaping for ransom, and
swindling people, as well as plotting and committing murder. The police
came to suspect that another, still unexplained sarin outbreak that had
occurred in the town of Matsumoto in the early summer of 1994, had been
caused by cult members.' More than 200 cult followers were arrested over

* Professor of Law at International Christian University. Tokyo, Japan.
1. Gas Attack Probe Enters Final Phase, Japan Times Weekly Int'l Ed.. May 8. 1995.

available in LEXIS, News Library, Curnws File.



COLUMBIA JOURNAL OF ASIAN LAW

the span of a few weeks. Criminal investigations by both the police and
public prosecutors took place throughout the country on a large scale and
were followed by a number of criminal proceedings in various district
courts.

While the criminal investigations and proceedings were going on,
politicians came to the stage and began to argue that in order to end such
terrorist activities by members of the cult organization, the government
should dissolve Aum Shinrikyo in addition to imposing criminal sanctions
on individual members guilty of wrongdoing. To the extent that the story
of Aum Shinrikyo concerns only criminal justice, no serious constitutional
issues are involved.2 Most problems, if any, are matters of criminal law. If,
however, as some politicians argue, the governmental dissolution of Aum
Shinrikyo should be accomplished by whatever means necessary, including
the application of the Subversive Activities Control Law3 or, as other
politicians suggest, the amendment of the Religious Corporation Law of
1951' to strengthen governmental control of religious organizations,
constitutional controversies about Article 20 of the Constitution of Japan,
which guarantees religious freedom,5 would become unavoidable. This
paper explores some of the constitutional issues involving religious
organizations that have arisen in the aftermath of the Tokyo sarin gas
attack.

2. There is a notorious practice of police investigations which has invited a constitutional
argument and this practice seemed prevalent throughout the whole process of police investigations
of Aum's activities. The practice is known as bekken taihtor bekken sdsa, in which the police invoke
an arrest warrant or a search warrant on the grounds of the nominal cause of a minor and easily
proved crime in order to get a clue for a real target of another more serious crime. The practice, if
relied upon in unlimited ways, comes into conflict with articles 34 and 35 of the Constitution which
provide strict systems for arrest and search warrants. The Supreme Court is rather reluctant to set a
clear-cut limitation on such practices probably due to the consideration of practical necessity.
Ishikawa v. Japan, 31 KEISHU 821 (Sup.Ct., Aug. 9, 1977).

3. Hakai katsud6 b6shih6 [Subversive Activities Control Law), Law No. 240 of 1952.
4. Shfiky5 h~jinh5 [Religious Corporation Law], Law No. 126 of 1951.
5. Kemp6 [Constitution of Japan], art. 20, para. 1 ("Freedom of religion is guaranteed

to all. No religious organization shall receive any privileges from the State, nor exercise any political
authority").

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

I. RECENT HISTORY OF GOVERNMENTAL REGULATION OF RELIGIOUS

CORPORATIONS

In prewar Japan, people lived in a very peculiar world in terms of
religion. This peculiarity can be seen in the very text of the clause in the
prewar Meiji Constitution of 1889. Article 28 of the Constitution provided:
"Japanese subjects shall, within limits not prejudicial to peace and order,
and not antagonistic to their duties as subjects, enjoy freedom of religious
belief."

The language of Article 28 sounds as if "freedom" is guaranteed. But
this guarantee depends entirely on such highly ambiguous concepts as
"peace and order" and "duties as subjects." Furthermore, being different
from other "freedoms," such as freedom of dwelling and movement or
freedom of speech, the "freedom of religious belief' of Article 28 was
subject not only to limitations imposed by Diet enactments but to
limitations imposed by ordinances of the emperor and other forms of
administrative orders as well. Therefore, what constituted "peace and
order" or "duties as subjects" could be determined by mere administrative
orders. Indeed, before 1939, almost all matters concerning religion were
regulated by various kinds of administrative orders. Thus, there was no
consistent regulation of religious organizations.

In 1939, the Diet passed the first systematic law regulating religious
organizations, the Religious Body Law.7 This law, however, was passed
not out of concern for religious freedom but rather as a means of
controlling religious organizations as part of the then prevalent National
Mobilization Movement.' The law defined schools, sects, or associations
of Shintoism (excluding, however, Jinja Shinto, or State Shinto),
Buddhism, Christianity, and other religions as "religious bodies" and for
the first time conferred the status of "juridical person" on each religious
body that qualified under the law. In order to receive the status of' juridical
person," a group of citizens had to apply for a license from the Ministry of
Education (Monbush-). For the purpose of handling the application, the

6. See generally HELEN HARDACRE, SHINTO AND THE STATE. 1868-1989 (1939).
7. Shiiky6 dantaih5 [Religious Body Law], Law No. 77 of 1939 (repealed 1945).
8. The National Mobilization Movement culminated in the enactment of the Kokka

S6d6inh6 [National Mobilization Law], Law No. 55 of 1938. The law was enacted in order to
concentrate the war effort in the hands of the government and resulted in encouraging nationalistic
and militaristic sentiments among the people and crushing any peace-loving sentiments. See
generally, HAVENS, VALLEY OFDARKNESS: THE JAPANESE PEOPLE AND WORLD IAR TWO (1978).

9. See HARDACRE, supra note 6, at 3-19 (as to the concepts of Shinto and State Shinto).

19961



COLUMBIA JOURNAL OF ASIAN LAW

Ministry was supposed to scrutinize in great detail such matters as the
character, structure, personnel, and property of the applicant religious
group. The government could regulate various aspects of the body in the
name of the preservation of "peace and order" or observation of "duties as
subjects."

Diverse groups, both large and small, were forced to reconstruct
themselves so that they could be recognized as a "religious body" within
the meaning of the new law. The most serious victims in this respect were
perhaps Christians, since Catholics and Protestants had to reunite as a
single religious group."0 Notably, however, there was no provision
concerning State Shinto in the Religious Body Law of 1939. State Shinto
was outside the reach of that law. According to the established, official
doctrine of prewar Japan, State Shinto was not a "religion" in the ordinary
sense of the word. State Shinto was considered a national institution which
performed state rites. Participation in rites and rituals conducted by State
Shinto was required of every person, irrespective of his or her religion, on
the basis of this theory that State Shinto was not a religion. State Shinto
was given strong support by the state, and it held control over the nation as
a sort of super religion. Thus, throughout the history of prewar Japan, there
was no room for speaking about a separation between the state and
religion."

In the late 1930's and early 1940's, a number of preachers, priests, and
citizens of various religions, including Buddhism, local Shintoism (some
of which the government called "pseudo-religions"), and Christianity were
arrested and detained by the government, and some were convicted and
sent to prison-in the name of the "preservation of peace" or on the basis
of the violation of "duties as subjects."' 2 For the purpose of such
governmental suppression there existed a very convenient legal tool-the
Peace Preservation Law of 1925.13 This law enabled the government to
suppress any persons who had connected themselves with any organization
aiming to overthrow the "national polity."' 4

10. See generally DAVID M. O'BRIEN & Y. OHKOSHi,TO DREAM OF DREAMS 45-46 (1996)
11. See Hiro Takagi, Shuy6Ho, in NIHON KINDAI HO HATrATSU SHI ,vol. 7, 3-36 (N.

Ukai et al eds. 1959)(for a brief history of the non-separation between the state and religion).
12. See RICHARD H. MITCHELL, THOUGHT CONTROL IN PREWAR JAPAN (1976); EusE

TIPTON, THE JAPANESE POICE STATE: THE ToKKo IN INTERWAR JAPAN (1990).

13. Chian ijih6 [Peace Preservation Law], Law No. 46 of 1925 (amended as Law No. 54
of 1941).

14. Lese majesty of the Criminal Code (art. 76, as before deleted in 1947, Keih6
ichibukaiseih6 [Law amending the Criminal Code] Law No. 124 of 1947) was another useful tool for
suppression by the government. See generally LAWRENCE W. BEER, FREEDOM OF EXPRESSION IN

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

In sum, there was practically no freedom of religion in prewar Japan.
After the war, one of the first things that the occupation powers demanded
was that the Japanese government abolish State Shinto as a national
institution and guarantee freedom of religion to the citizens. In October
1945, the Religious Body Law, together with the notorious Peace
Preservation Law, was abolished. In its stead, at the direction of the
occupation powers, the government enacted the Religious Corporation
Ordinance.' S

The new ordinance introduced, in place of the former licensing
system, a registration system whereby status as a religious juridical person
was conferred upon any group that registered at a registry office in
accordance with the form required by the ordinance. The ordinance aimed
at providing a rule that set minimally necessary requirements for
institutionalizing the concept of a religious juridical person, paying high
respect to the freedom of religion now held in the hands of the people. 6

The new Constitution was promulgated in 1946 and came into force
in 1947. Article 20 of the Constitution provided a firm foundation for
religious freedom as well as for the separation between the state and
religion. 7

In 1951, the Diet replaced the Religious Corporation Ordinance with
the present Religious Corporation Law. The substantive character of the
latter was not different from the former in that it remained to provide
simply a minimally necessary framework for the system and to avoid state
interference as much as possible. There were some technical changes,
however. For example, a new system was introduced for granting juridical
person status whereby applicants had to present to the governor of the
prefecture in which their headquarters were located documents required by
the law and to ask for official certification from the governor (in the case
of a larger corporation having under its umbrella smaller corporations
which were located in a prefecture or prefectures different from that of the
larger corporation, the certification proceedings were to be handled by the
Ministry of Education rather than by any local government). The

JAPAN 48, 53, 77, 80 (1984) (as to the concept of lese majesty).
15. Shdky h6jinrei [Religious Corporation Ordinance]. Imperial Ordinance (chokurei) No.

719 of 1945 (repealed 1951).
16. As to the law reform under the Occupation period, see Kazunori Koga. Senryoka ni

Okeru Shulyd Gysei no Henyo, in 11 SHOKYOHO KENKYtI (Shaikyaho Kenkyukai, Ryukoku
University ed. 1992); William P. Woodward, Religion-State Relations in Japan, in COT2'IP.
JAPAN, Vol. XXV, No. I at 81 (1957); WILUAM P.WOODWARD, THE ALLED OCUPATOX OFJAPAN
1945-1952 AND JAPANESE REuGIONS (1972).

17. See supra note 6; infra pp. 138-41.

1996]



COLUMBIA JOURNAL OF ASIAN LAW

government had no discretion whatsoever regarding these matters; its only
function was to refuse to grant certification when it found formal
illegalities in the documentation. 8 It is interesting to note that although the
law generally presupposed the religious juridical person to be a non-profit,
public-service body, for the first time the law explicitly allowed the
religious corporation to engage in profit-making activities insofar as the
activities were not in conflict with the corporation's purpose and on the
condition that profits so gained be used for the purposes of the corporation
itself. 9

II. THE DISSOLUTION OF AUM SHINRIKYO BY APPLICATION OF THE

RELIGIOUS CORPORATION LAW

One consequence of the Aum Shinrikyo controversy was that it made
it possible for the government to amend the Religious Corporation Law. 20

Another consequence of the incident was that the government was
reminded of the existence of a provision in the law which could be usefully
applied against this cult organization. Article 81(1)2' of the law empowers
a judicial court to issue a dissolution order against any religious

18. Aui Shinrikyo was certified as a religious juridical person in August 1989. And as will
be described later, it lost this legal status in December 1995. It may be worth mentioning that the
Governor of Tokyo did not grant Auto's application automatically, and that the governor spent some
time to take into account a number of citizens' complaints against Aum's certification. Aum applied
for certification in the beginning of March 1989, which the governor refused to receive on account
of some illegalities in the documentation. Aum devotees performed public demonstrations and other
protest activities in front of the Tokyo Metropolitan Government buildings, accusing the Governor
of a negative attitude toward Aum. Finally the Governor received the application, but postponed the
issuance of certification until late August of the same year. In the meantime, in early June, Aum
entered a suit against the Governor, arguing that the Governor's delay of granting certification to Aum
was groundless and that the certification be issued as soon as possible. See, e.g., Asahi Shimbun,
Nov. 10, 1995.

19. As to the Religious Corporation Law, see generally, EIGYO INOUE, KAITEI SHOKYO
HOJINHO NO KISoTEKI KENKYU (5' ed. 1995). See also BUNKACHO BUNKABU SOMUKA, SHOKYOHO

NO KAISErSU TO UNYO (1974); SHIGERU WATANABE, CHIKUJO KAISETSU SHOKYO HOJINHO (1972).
20. See infra p. 134.
21. The clauses concerned read as follows:
Article 81(1). When the court recognizes one of the following conditions fulfilled by
a religious corporation .... the court may order to dissolve that corporation:
1. when there is clear evidence that a corporation has given serious harms to the public
welfare by violating law.
2. when a corporation has behaved itself considerably inimical to the purpose of a
religious organization as provide in Article 2 of this law, or when a corporation has
done nothing with respect to the said purpose for more than one year.

Religious Corporation Law, supra note 4, art. 81. The case against Aur was grounded on the
recognition that the conditions in Clause I and the first part of Clause 2 were met.

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

corporation under certain circumstances. According to the first clause of
Article 81(1), the court may issue a dissolution order against a corporation
which the court deems to have clearly violated the law in general and
conspicuously injured the public welfare. The first part of the second
clause of Article 8 1(1) gives the court the same power when the court finds
that the corporation has exceedingly deviated from its religious purpose.
The court may proceed by issuing a dissolution order either ex officio or
upon application by competent authorities (in this kind of case, usually a
prefectural governor), interested parties, or public prosecutors.

In the end of June 1995, the Governor of Tokyo together with the
Chief of the Tokyo District Prosecutors Bureau applied to the Tokyo
District Court requesting that the court issue a dissolution order against
Aum Shinrikyo on the basis of Article 81(1), Clauses 1 and 2 (first part) of
the law.

This is the first case in which dissolution has been invoked on the
basis of these clauses of Article 81 ,' which contains other clauses whereby
a court may issue a dissolution order against a religious corporation, e.g.,
when the court determines that despite the demolition of the settlement for
religious worship, a corporation has done nothing for reconstructing that
settlement for more that two years (Article 81 (1) Clause 3) or that there has
been a vacancy in the position of its representative officer or its substitute
for more than one year (Article 8 1(1) Clause 4) and the like. There have
actually been a few cases in which the courts have dissolved religious
bodies on the basis of these clauses.' However, these clauses are
considerably different from the clauses that were invoked in the case of
Aum Shinrikyo's dissolution in that the former are related only to cases of
inaction for a certain period, easily determined, whereas the latter are
necessarily concerned with an evaluation of substantive wrongdoing. From
a constitutional perspective, the latter are more important than the former
because the latter may require some possibly delicate fact-finding and
balancing of conflicting interests between substantive wrongdoing and
freedom of religious association.

In the end of October 1995, four months after receiving the
application for dissolution of Aurn Shinri,o, the Tokyo District Court
approved the application and decreed that Aun Shinrikyo be disbanded. 4

22. M. Tanamura, Shu-LydHcfjin Seido ni Okeru Gydrei no Sekinin to Yak wari. HOrrsu
NO HIROBA, Apr. 1996, at 11, 19.

23. See Inoue, supra note 19, at 420.
24. Takahashi v. Au Shinrikyo, 1544 HANREI hIHO 43 (Tokyo District Court, Oct. 30

1995).

1996]



COLUMBIA JOURNAL OF ASIAN LAW

Aum Shinrikyo appealed to the Tokyo High Court, which rejected the
appeal in the middle of October 1995, and the Tokyo District Court's
ruling became final.' According to the general rules of procedural law in
this area, the judgment of a court of appeal is final.26

Both of the inferior courts gave serious consideration to the question
of whether it was possible to apply Article 81(1) to this cult organization.
The district court did not consider the constitutionality of either the
dissolution clause or of its specific application to Aum Shinrikyo. The high
court recognized the possibility of involvement of constitutional issues,
namely, freedom of religious belief of the individual members of that
organization, but the court avoided consideration of this issue on the basis
of a technicality concerning the standing of Aum Shinrikyo.

Aum Shinrikyo made a special appeal to the Supreme Court, but the
Court dismissed the appeal in the end of January 1996.27 The Court,
however, did take up the question of whether Article 81(1) could
constitutionally be applied to Aum Shinrikyo, and did not allow itself the
indulgence of the standing issue raised by the high court. The Court upheld
the constitutionality of the application of Article 81(1) by striking a
balance between the conflicting interests as follows. On the one hand, the
Court realized that, due to the issuance of the dissolution decree, Aum
Shinrikyo property, such as settlements and places which had been used by
members for religious purposes, would be subject to liquidation
proceedings and that, as a result, the members would have to face
difficulties inflicted upon them. On the other hand, the Court held that it
was undeniable that the appellants' illegal activities were appallingly
contrary to the public welfare and clearly deviated from the purpose of a
religious corporation, and therefore the dissolution decree issued against
Aum Shinrikyo was compelling and fully justified. The Court concluded
that the decree against Aum Shinrikyo was constitutional. It should be
noted that in reaching this conclusion, the Court indicated that the
dissolution proceedings were conducted entirely by a judicial court and,
thus, it could be assumed that the proceedings had been procedurally fair.
The Court avoided the question of whether the dissolution clause in the law

25. Aum Shinrikyo v. Takahashi, 1548 HANREi JHO 26 (Tokyo High Court, Dec. 19, 1995).
26. Minsoh6 [Civil Procedure Law], art. 419, para. 2, Law No. 127 of 1954 (as amended).

A party may further appeal to the Supreme Court on the basis that the judgment of the inferior court
was in conflict with constitutional law. And, in fact, as discussed in the text below, Aum did appeal
the case to the Supreme Court. However, an appeal of this special kind to the highest court has, as
interpreted generally, no influence on the effect of the dissolution decree.

27. Aum Shinrikyo v. Takahashi, 1555 HANREI JIHO 3 (Sup. Ct., Jan. 30, 1996).

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

was constitutional. It appears that the Court assumed that the law was
constitutional.'

In addition, Aum Shinrikyo had to confront an additional legal
challenge from ordinary citizens. There were a great number of people who
claimed that they were the victims of various crimes allegedly committed
by this cult organization, and many of them brought their ovn actions for
damages against Aum Shinrikyo. At some point they all came to the same
realization that the total sum of the damages which they had claimed
against Aur Shinrikyo would be more than the assets of this organization.
Therefore, they decided to act as a group and to file a bankruptcy petition
against Aum Shinrikyo. This victims' group asked the Tokyo District Court
to provisionally freeze Aum Shinrikyo's assets as the initial step in the
bankruptcy procedures. Quite independent from this citizens' action, the
state also presented almost the same petition to the Tokyo District Court
as being in the position of being responsible for the recovery of crime-
victims.

In the middle of December 1995 when the dissolution proceedings
were still pending in the Tokyo High Court, the district court affirmed the
petitions filed by both the victims' group and the state, and provisionally
froze all of Aum Shinrikyo's assets. In the end of March 1996, the Tokyo
District Court officially declared Aunt Shinrikyo bankrupt,29 against which
Aum Shinrikyo - through its liquidator - did not appeal to a high court.
Aum Shinrikyo no longer exists as a religious corporation. Although it still
survives as a mere de facto group of devotees, its influence, power and
significance have rapidly dissipitated because it has been deprived of a
large amount of its financial resources.

28. In the consideration of the constitutionality of the dissolution order or of the law itself,
there involves an interesting issue of standing. That is, whether the applicant, Arur Shinrikyo, can
attack the dissolution order or the law itself as unconstitutional on the grounds that the order or the
law deprives, or otherwise fatally damages, its members' free exercise of religion. The Tokyo High
Court in this case took this issue of standing rather seriously, arguing, in effect, that the corporation
was an independent organ from its members, that it could not. as a rule, argue on behalf of its
members' legal position, and that there were no special circumstances which justified the corporation
to act as representative of its members' constitutional position. Interestingly enough, however, the
Supreme Court did not say anything about the problem of standing. Instead, the Court considered the
substantive issue about the constitutionality of the dissolution order in terms of Aum members'
freedom of religion. It is almost certain that the Supreme Court examined the issue more leniently as
to the devotees' constitutional freedom than did the High Court. In any event, the issue presented
induces us to conduct a comprehensive study comparing U.S. jurisprudence in the area.

29. Sakamoto v. Aur Shinrikyo, 1558 HANREI JIHO 3 (Tokyo District Court, Mar. 28.
1996).

19961



COLUMBIA JOURNAL OF ASIA N LA W

HI. THE AMENDMENT OF THE RELIGIOUS CORPORATION LAW

As early as April 1995, the government made public that in order to
avoid a repeat of a disaster like the Tokyo subway sarin incident, it was
considering whether to amend the Religious Corporation Law.

In the amendment process, the Ministry of Education, the
governmental entity empowered to administer and amend the law, usually
submits the proposed amendment to the Advisory Council on Religious
Corporations (Shuiky5Hqjin Shingikai),0 an entity within the Ministry of
Education. However, instead of the usual process, Prime Minister
Murayama initiated the amending of the Religious Corporation Law when
he commented in a Diet committee meeting that the government should
reexamine the law.3' Three weeks after the prime minister's comment, the
Ministry of Education convened a meeting of the Advisory Council and
requested it to reexamine the law. It was reported at that time that the
Advisory Council was not being rushed to hastily present its opinions about
the pros and cons of amending the law.32 Most people believed that since
the law serves as a fundamental basis for religious bodies and is closely
related to the constitutional guarantee of religious freedom, it would
require three years or more to reach conclusions about amending the law.33

Generally, representatives from religious groups have been
antagonistic to any attempt to amend the law. These representatives
believe that current law affords great respect to religious freedom and
protection to religious groups, including granting various privileges and
immunities. Thus, religious groups tend to be satisfied with the legal status
quo concerning them.

30. The Advisory Council consists of ten to fifteen members who are appointed by the
Minister of Education on the basis of suggestions by the Chief of the Cultural Bureau. As to the
qualification of members, the law only provides that the appointment shall be made among ministers
of religion and other persons who have enough knowledge of or experience with religion. The term
of the appointment is for two years, but reappointment is allowed. Religious Corporation Law, supra
note 4, art. 72. See Okura, infra note 33, at 98 (as to the performance of the current Advisory
Council).

31. Police Raid Three More Facilities of Aum religious Sect, Deutsche Presse-agentur,
April 4, 1995, available in LEXIS, News Library, Curnws File.

32. Lawmakers Leery of Clamping Down on Religious Groups; Cult Fears Raise Callfor
Reform, but Establishment Balks, THE NIKKE! WEEKLY, July 31, 1995, available in LEXIS, News
Library, Curnws File.

33. See, e.g., Fumihito Okura, Shtky6Hin Shingikai nilgiAri, Ushio, Dec. 1995, at 102,
SANKEi SiIINBuN, Apr. 6, 1995, at 2; SANKEI SHINBUN, May 9, 1995, Evening, at 9;, May 23 1995,
at 9; SANKEI SHINBUN, June 12 1995, Evening, at 7. See also MAINICHI SHI SANKEI SHINBUN NBUN,
April 23, 1995, at 4; MAINICHI SHINBUN, June 20, 1995, at 27.

110:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

Largely due to the antagonistic attitudes of religious organizations
concerning amendments to the Religious Corporation Law, there has been
no success in attempts to amend the law. In 1958, the Advisory Council on
Religious Corporations sent to the Ministry of Education a report in which
it recommended corrections to what it believed were defects in the system
concerning the certification of religious organizations. All religious groups,
except the Shint6 Honch6, 4 opposed the position of the committee and
were successful in stopping the proposed amendments."5 Since 1958 there
have been new topics that conflict with the substance of the law. Such
topics which became the subject of public discussions include the misuse
of tax privileges enjoyed by so-called religious groups and political
campaigns. Other questionable political activities such as using illegal
means to sell goods or collect money, kidnaping for ransom, false
imprisonment, and negligently caring for children were also publicized. 6

It appeared to be appropriate to deal with most of these problems through
new legislation aimed at these specific wrongdoings, which were of a
secular nature, rather than by amending the Religious Corporation Law.
However, if the government attempts to tackle these problems, it is
inevitable that the problems are placed in a larger perspective of world
affairs in the area of religion and must reexamine the concept of religious
freedom in light of this new perspective. The public exposure of the
dangerous conduct allegedly engaged in by Aur Shinrikyo gave the
government an excellent opportunity to propose consideration of how to
respond to religious groups - something which, since 1958, seems to have
been regarded as a very difficult topic to broach.

However, it was widely understood that the primary reason for the
Advisory Council on Religious Corporations being convened was for it to
examine the situation created by Aum Shinrikyo. In addition, the committee
was expected to present its recommendations on amending the Religious

34. Shint6Honch, forming itself as the headquarters of various Jinja Shinto (or State
Shinto) establishments, was created in 1946 in accordance with the then new law, the Religious
Corporation Ordinance.

35. Government Panel Starts Debate on Religion Organizations. JAPAN POLY & POL.
May 1, 1995, available in LFXIS, News Library, Curnws File.

36. See generally Ronso: Shiky Hojinh5, (Dai-ni Tokyo Bengoshikai ed. 1995); see also
Masaki Kito, Nijuiseild no Shidky6 Hojinh5 (1995). A vexing problem is in the special treatment of
various taxes for religious corporations. However, this problem is not created by the Religious
Corporation Law. The tax privileges which have been enjoyed by religious organizations which have
been provoking public criticism are provided by tax laws. As to the tax problem, see generally e.g..
Fumitoshi Tamakuni, Shut-y5Hqin Kaiseino Arikata, 1081 JuRiSTO. at 16 (1995); see also Hiro)yki
Kitano, Shtiy6Hqinh6no Kaisei Mondai no Ronten, 494 HOGAKU S-INA 46 (1996).

1996]



COLUMBIA JOURNAL OF ASIAN LA W

Corporation Law. Because amending the Religious Corporation Law has
been a difficult endeavor in the past, most observers expected the
formulation of recommendations to take several years. However, on
September 29, 1995, only months after its first session, the Advisory
Council delivered its final report, in which it pointed to three items that
needed to be amended.37 None of the three points were clearly or directly
related to Aum Shinrikyo's alleged activities, and accordingly the points
were not necessarily useful with respect to trying to control other religious
bodies which might engage in similar illegal activities. In other words, the
Advisory Council, in making the recommendation that it did, side-stepped
the Aum Shinrikyo story and proceeded to a more general, sensitive, and
neutral amendment to the Religious Corporation Law, thereby stepping
into an area which had been regarded as somewhat sacrosanct,38 at least
among some groups of citizens.

A. The Running Dispute over the Amendment of the Religious
Corporation Law

The Advisory Council on Religious Corporations sent to the Minister
of Education a report of inquiry into the law in which the committee
suggested three points in the law that needed amending. Although the
report resulted in some criticisms of various kinds39 (e.g., among members
of the committee), on the basis of the report the government created a bill,
which was passed by the Diet in December 1995 without additional
changes.4°

The amendment concerned: (1) modification of the Public Safety
Review Commission's jurisdiction; (2) a new system of keeping records of
each corporation; and (3) the right of access to a corporation's documents
by its members. The relationship between the amendment and the Aum
Shinrikyo incident is, if any, extremely limited. The amendment was

37. See JURISTO No. 1081at 24 (1995).
38. See, e.g., Y. Shimomura, Shukyd5Hqin Minaoshi o Habamumono, BUNGEi SHUNJU,

July 1995, at 178 (Shimomura is a former Minister of Education).
39. Seven of the 15 members of the Advisory Council endorsed a protest letter to the

Minister of Education on the same day the government presented a bill to the Diet to amend the
Religious Corporation Law, based on the Advisory Council's report. The protest letter stated that the
entire process of making the report had been mishandled by the representative from the Ministry of
Education and that the they did not intend to suggest amendment of the law on the basis of their
report.

40. Shfiky6 h6jinh6 no ichibu o kaiseisuru h6ritsu [Amendment to the Religious
Corporation Law], Law No. 134 of 1995.

(10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

regarded as long overdue, but was achieved only by availing itself of the
good opportunity presented by the Aum Shinrikyo incident."

Despite being neutral in its content, the amended law indicates bitter
political implications. In July 1995, while the Advisory Council on
Religious Corporations was just beginning to consider the matter assigned
to it, the regular election of members of the House of Councillors was held.
This election was the first since the collapse of the "1955 political frame
work '42 and politically very important. The achievements of the newly
created party, the New Frontier Party, in the election were remarkable.
This party gained 12,500,000 votes in the districts of proportional
representation, whereas the former administration party, the Liberal
Democratic Party ("LDP"), received 11,090,000 votes in the same
districts.43 The advance of the New Frontier Party at this election was
obviously due to the support of members of the largest religious
corporation, the Soka Gakkai. In 1964, this corporation had created its own
political party, the Clean Government Party (Komeito-). However, in 1994,
during the restructuring of the "1955 Regime," the Clean Government
Party disbanded itself and joined the creation of the New Frontier Party
together with the former Democratic Socialist Party and some ex-members
of the LDP. There is no doubt that the New Frontier Party is a coalition
between various political groups and it is uncertain how long this party will
last. As long as it survives, the power of the members of the former Clean
Government Party will also survive within the new party as well.
Therefore, the Soka Gakkai continues to be influential in the political
sphere.

The Liberal Democratic Party considers the New Frontier Party as its
only rival worthy of its attention and anxiety. Therefore, the LDP
endeavors to decrease their rival's political strength. After the election of
July 1995, the LDP seriously considered amending the Religious

41. For the amended law and several comments and articles, see, e.g., JURIS"O (Dec. 15.
1995); HORrrsU NO HIROBA (Apr., 1996).

42. In 1955, conservative politicians established a unified political party, the Liberal
Democratic Party. Progressive liberals also formed a new political party, the Socialist Party. The
"establishment" of Japanese society seemed to hope that both parties would compete with each other
so that a two party system like that of Great Britain could develop in the future. However, the Liberal
Democratic Party soon began to occupy a dominant position over the Socialist Party and as a result.
it is said, Japan was under the regime of"1.5 party v. I party" instead of a two party system. In any
event, the "1955 Political framework" or the "55 Regime" connotes the political realities created
under the dominant Liberal Democratic Party and the weaker Socialist Party.

43. In that election the LDP held 46 seats in total, the New Frontier Party 40. the Socialist
Party 16, the Communist Party 8 and the New Party Sakigake 3.

19961



COLUMBIA JOURNAL OFASIAN LAW

Corporation Law in order to somehow restrict the political activities of
religious organizations.

This line of political action was similar to the manner in which the
government was reluctant to introduce restrictions on the political activities
of religious groups by way of amendment to the Religious Corporation
Law.' The government just wanted to carry out the amendment of the
three points discussed above. Thus, the LDP decided to separate its own
attempt from the government bill for the amendment of the Religious
Corporation Law. The LDP, with the consent of the Socialist Party and the
new Sakigake Party, passed the government bill - with the tacit
understanding that it would produce at the next session of the Diet a bill
aimed at restricting the political activities of religious groups. The last few
days of the Special Committee of the House of Councillors, which was
deliberating the government bill, were thoroughly taken up by the LDP for
the purpose of demonstrating its political inclination toward control of
religious organizations.45

B. A New Phase of "Politics and Religion"

In late 1995, the LDP began to think of the possibility of enacting an
entire new law which would regulate political activities of religious groups,
rather than amending the Religious Corporation Law. The first problem the
LDP faced was having to overcome the constitutional difficulties
concerning the political freedom of religious groups.

The problem starts with Article 20(1) of the Constitution, which
provides: "Freedom of religion is guaranteed to all. No religious
organization shall receive any privileges from the State, nor exercise any
political authority." There have been numerous disagreements about the
interpretation of the second sentence. The LDP insists that the sentence

44. See discussion infra p. 139.
45. For instance, LDP members of a special committee on religious corporations of the

House of Councillors insisted that the highest leader of Soka Gakkai, Daisaku Ikeda, be summoned
before the committee as a witness for questioning about his organization's involvement in politics,
To some members of the New Frontier Party, Ikeda's position was considered so prestigious that his
forced service as a witness in the Diet was unthinkable. After several political skirmishes, both sides
reached a compromise thatthe present President of Soka Gakkai, Einosuke Akiya, rather than Ikeda,
would come to be questioned about "religion and politics." On December 4, 1996, Akiya appeared
before the special committee, received questions, and responded to them. However, the debates were
rather dull, and full of formality. See, e.g., ASAHI SHINBUN, Dec.4, 1995, Evening, at 1; MAINICHI
SHINBUN, Dec. 5 1995, Evening at 1.

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

should be interpreted literally, and that it means "No religious organization
shall engage in any political activity."

The argument about the interpretation of this clause has its own
history. First, when the Constitution was under consideration in the
Imperial Diet in 1946, the government indicated its position that this clause
was part of the constitutional principle of the separation between state and
religion, and that it did not connote anything about the restraint of religious
organizations' political freedom. 6 Since then, on every occasion when the
same question concerning the interpretation of Article 20(1) was raised in
the Diet, the government, through its bureaucratic mouthpiece, the Cabinet
Bureau of Legislation, has publicly repeated its original position47

Although there are a minority of scholars who maintain that this
clause prohibits any religious organization from establishing a political
party or engaging in other kinds of positive activities which may have an
impact on politics,4 the government's interpretation is now well
established. According to the prevailing interpretation, the term "political
authority," which concerns the authority which religious organizations may
exercise, designates legislative power, taxation power, judicial power and
the appointment power as commonly exercised by the Church in medieval
Europe. Since in modem times, such medieval church practices have
become inconceivable, the constitutional provision is regarded as mainly
a precautionary measure.

Article 20(1) first appeared in the so-called "MacArthur Draft" which
used substantially the same words (Article 19: "Freedom of religion is
guaranteed to all. No religious organization shall receive special privileges
from the state, nor exercise political authority"). In order to understand the
draftsman's intent of this provision, the following part of the minutes of the
Meeting of the Steering Committee with the Committee on Civil Rights is
necessary (Original Draft)(Friday, February 8, 1946);' 9

As originally written Article XIII not only guaranteed freedom
of religion but expressly forbid [sic] all ecclesiastics from
political activity of any kind. The Steering Committee
questioned both the wisdom and the practicality of the latter
provision. Colonel Kades objected that the denial of political

46. See CHIKUJO NIHONKOKU KEIPO SHINGIROKU 2, at 421 (Shin Shimizu ed. 1962).
47. See KAZUOYA1ANOUCHI AND Icimo AsANo. KoKKAI NO K~tFO RONGI, 1204-1208

(1984).
48. See, e.g., JOJ TAGAMI, NIHONKOKU KEMPO GENRON 123 (1980).
49. NIHONKOKU KEMPO SEnE1 NO KATE[, 200 (Kenzo Takayanagi ed. 1972).

19961



COLUMBIA JOURNAL OF ASIAN LAW

activity to ecclesiastics involve the denial to them of freedom of
speech and press as well. A special prohibition of this kind has
no place in a Constitution, which should be a Bill of Rights,
rather than a Bill of Restrictions. Colonel Roest states that this
article was designed to prevent the abuse of spiritual authority
to political ends. Japan has been a priest-ridden country for
generations and political tyranny has been reinforced by the
threat of spiritual punishment. It must be made clear to the
Japanese that no political authority is attached to any
ecclesiastical organization.

The established interpretation of the article is consistent with the position
taken by the draftsmen of the original document.

Now that the prevailing interpretation is well established, the LDP
will have to be persistent in surmounting it. Otherwise, they have no
constitutional grounds on which to regulate the political freedom of
religious organizations. Some members of the political world have been
repeatedly trying to persuade the government to alter its interpretation of
this article.

With respect to the government's position of constitutional or other
legal interpretation, it is necessary to discuss the operation of the cabinet
Bureau of Legislation. This is an organ attached to the cabinet that serves
as a consultant on legislative matters and its bureaucrats are highly trained
in legislative technicalities. As the Constitution adopts the Westminster
style of government, the cabinet may propose bills of legislation. One of
the most important tasks of the bureau is to examine the constitutionality
of the government's bill before presenting it to the Diet and to maintain
consistency in the government's interpretation of the constitutional
intepretationi 0

The bureau is not completely independent from political pressures.
The bureau had received the image of being too subservient to the political
demands of the party in power"1 (usually the LDP). However, on the

50. See Yasuhiro Okudaira, Forty Years of the Constitution and Its Various Influences:
Japanese, American, and European, in JAPANESE CONSTITUTIONAL LAW 29-30 (Percy R. Lucny, Jr.
& Kazuyuki Takahashi eds. 1993) (for a brief description of the role of the Cabinet Bureau).

51. The following is one example which indicates the bureau's involvement in politics led
by the LDP. In 1984-85, Prime Minister Yasuhiro Nakasone was quite enthusiastic about legalizing
"official visits" to Yasukuni Shrine and established a private advisory committee to issue a report
as to the constitutionality of the "official visits." With a few dissenting opinions, the general tone of
the report was in favor of "official visits" on the condition that rites accompanied with the visits be
performed not in the traditional manner of State Shinto. It is widely believed that the idea of

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

whole, the bureau has been regarded as a respected professional team
acting with consistency and according to principles.

Since late 1995, some members of the LDP have become increasingly
enthusiastic about the idea of having a law regulating the political freedom
of religious organizations and have tried very hard to persuade the cabinet
bureau to alter its constitutional position as to Article 20(1). These
members argue that a change of constitutional interpretation is justified
because of the present state of political involvement of certain religious
organizations. However, it will be difficult to overturn such a consistently
upheld interpretation as the present one.

IV. THE PROPOSED APPLICATION OF THE SUBVERSIVE AcTVIrrIEs
CONTROL LAW TO Aum Shinriko

The same day that the Tokyo District Court brought the cult
organization to the verge of bankruptcy, another fateful blow struck Aun
Shinrikyo-this time the attack came from the Public Safety Investigation
Bureau (K5an Chosa-ch6, set up as extra-ministerial board in the
Department of Justice) ("PSI Bureau") when it announced the beginning
of its investigation 2 of Aum Shinrikyo under the Subversive Activities
Control Law of 1952' ("SAC Law"). The entrance of the PSI Bureau onto
the scene was a sign of political maneuvering backstage.

As soon as Aum Shinrikyo was reported nationally as allegedly
responsible for the two sain incidents and other various crimes, politicians
demanded that this cult organization be completely disbanded.' But while
some politicians sought to apply and/or amend the Religious Corporation
Law, others called for Aum Shinrikyo's dissolution by the application of the

introducing the alternative manner of performing rites in order to overcome constitutional difficulties
was born in the process of communicating with some officials of the Cabinet Bureau of Legislation.

Nakasone payed an "official visit" to Yasukuni Shrine on August 15. 1985 (the memorial day
of defeating the Pacific War), soon after forming the private advisory commiuce. Strong protests from
various Asian countries including China and both Korean republics resulting in the cancellation of
future plans of "official visits" to Yasukuni. The Asian countries bitterly criticized Nakasone's
actions on the basis that Yasukuni had recently enshrined the souls of A-class war criminals including
Hideki Tojo and that Yasukuni continued to be a symbolic legacy of Japanese Imperialism.
Interestingly, since Nakasone's visit, there have been no "official visits" by any administration. See
O'Brien supra note 10, at 169-171 (as to the Nakasone policy of Yasukuni). See generally, 848
JuRiSTO (1985) (providing a collection of materials concerning this matter).

52. Tokyo Moves to Disband Aum Cult, THE NIKKEi WEEKLY, Dec. 18. 1995, available
in LEXIS, News Library, Curnws File.

53. Hakai katsud6 boshih6 [Subversive Activities Control Law], Law No. 240 of 1952.
54. See, e.g., 223 Local Assemblies Seek Aur Disbandment, Japan Econ. Newsire, June

30, 1995, available in LEXIS, News Library, Curnws File.

1996]



COLUMBIA JOURNAL OF ASIAN LAW

SAC Law. The New Frontier Party in particular urged that the SAC Law
be used against Aum Shinrikyo and opposed the application of the
Religious Corporation Law. This new party wanted so strongly to keep the
Religious Corporation Law intact that they did not want to do anything to
make the law conspicuous. "

Why on earth was the New Frontier Party so keen about leaving the
Religious Corporation Law untouched? As discussed earlier, this political
party was created in December 1994 by a coalition of various political
groups, the major one of which was the former Clean Government Party
(Komeito), which had been closely connected to the largest religious
organization in Japan, the Soka Gakkai16 It would be fair to say that the
New Frontier Party is heavily dependent on the support of this most
powerful religious organization. The Soka Gakkai has been accused by
various groups of being too deeply involved in power politics. On more
than one occasion, it has been suggested that the Religious Corporation
Law should be amended so that the political activities or political
involvement of religious organizations such as those of the Soka Gakkai
could be limited. 7 An attempt at such highly political legislative reform
had never been attempted before the occurrence of the Aum incident.
Against this backdrop, it is quite understandable why the Soka Gakkai was
very cautious about anything which might lead to bringing the Religious
Corporation Law to the political arena. That is the reason why the New
Frontier Party as well as the Soka Gakkai preferred the application of the
SAC Law to that of the Religious Corporation Law for the purpose of
disbanding Aum Shinrikyo.

55. The New Frontier Party's position favorable to the application of the SAC Law to Aum
(instead of the Religious Corporation Law's revision) became evident especially after the election of
the House of Councillors in July 1995. See, e.g., TOKYO SHINBUN, Aug. 30, 1995, at 2. See TOKYO
SHiNBUN, Sept. 9, 1995, at 2; SANKEI SHINBUN, Sep. 6, 1995, at 2; NIKKEI SHINBUN, Sep. 13, 1995,
at 2.

56. See, e.g., John Kie-Chiang Oh, The Fusion of Politics and Religion in Japan: The Soka
Gakkai-Komeit, 14 J. CHURCH & ST. 59 (1972); DANIEL A. METRAUX, THE SOKA GAKKAI
REVOLUTION (1994).

57. It is a widely supported observation that the attempt of the Religious Corporation Law's
amendment which had started to control Aum Shinrikyo now (after the surprising rise of the New
Frontier Party in the July 1995's elections of the House of Councillors) shifted its target and that the
party in power (LDP) wanted it to control political activities of the Soka Gakkai and other religious
organizations. See, e.g., NIKKEI SHINBUN, Sep. 1, 1995, at 2; NIKKEI SHINBUN, Sep. 5 1995, at 2;
NIKKEI SHINBuN, Sep. 6, 1995, at 2. See also YOMIURI SHINBUN, Sep. 6, 1995, at 3; ASAHI SHINBUN,
Sep. 5, 1995, at 2; AsAHi SmNBUN Sep. 14, 1995, at 2; ASAHI SHINBUN Dec. 27, 1995, at 4; TOKYO
SHINBUN, Sep. 6, 1995, at 2; MAINICHI SHINBUN, Sep. 6, 1995, at 2; MAINICHI SHINBUN, Sep. 10,
1995, at 3.

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

In addition to the New Frontier Party, there were still plenty of other
politicians in the ruling LDP who were very enthusiastic about the
application of the SAC Law for that purpose. The SAC Law had never
been applied for the purpose of regulating the activities of any organization
since its promulgation in 1952. Right-wing politicians had long sought the
opportunity to apply the law, but it did not come until Aum Shinrikyo's
alleged crimes came to light in 1995. This provided them with the
long-cherished chance to apply the law.58

Immediately following the revelation of Aum Shinrikyo's role in the
Tokyo sarin gas incident, the people who hated the group the most tended
to think that every tool should be utilized by the government to extirpate
the root of this organization. Therefore, it was no surprise that more than
80 percent of the whole population were reportedly in favor of the SAC
Law's application to the cult organization. 59 Most people, of course, did not
have sufficient information as to what the law was, what kind of problems
were involved in its application to such an organization as Aum Shinrikyo,
and so on. They just wanted the extinction ofAum Shinrikyo by whatever
means.

A. A Historical Sketch of the Subversive Activities Control Law

Although the SAC Law was promulgated immediately after Japan
became independent from the occupation powers, most of its drafting work
was done under the regime of the occupation powers. The predecessor of
the law was an Imperial Ordinance entitled the Organization and Other
Activity Regulation Ordinance,' which was made in 1949 under the
special authority of General Headquarters. This ordinance aimed to
regulate any organization which had attempted to resist or oppose the
authority of the occupation powers, or to assist or justify any policies of
overthrowing the governmental scheme by violence. It is undeniable that
during the whole occupation period the ordinance served as a very efficient
apparatus for the execution of occupation policies. For example, it served
as a legal basis for conducting political purges of militarists, ultra-
nationalists, and the like. It was also utilized by the government to deprive

58. See, e.g., YASUHIRO OKUDAIRA, KOREGA HABOH0 25 (1996).
59. See, e.g., Tokyo TV Says Sect Leader Confessed. WASH. TIMES. OZL 5, 1995. at A 13.

available in LEXIS, News Library, Curnws File.
60. Dantait6 kiseirei [Organization and Other Activity Regulation Ordinance], Imperial

Ordinance (chokurei) No. 64 of 1949 (repealed 1952).

1996]



COLUMBIA JOURNAL OF ASANIAN LA W

communist members of their Diet seats and to stop the Communist Party
from printing of periodicals. 61

But as the end of the occupation neared and Japan prepared to regain
its sovereignty, the government felt the need to replace the Organization
and Other Activity Regulation Ordinance with a new law enacted by the
Diet. Thus, the Department of Justice began to draft the new law starting
in the spring of 1951. After a year-long draft-making process, the
government laid a bill before the Diet in April 1952.

The government named the bill the Subversive Activities Control
Law. This should remind the older generation of Americans of the U.S.
Subversive Activities Control Act of 1950.62 It should invite no serious
objections if the writer characterizes this Act as principally directed against
communist and communist-infiltrated organizations and their movements,
and as such, as a very unhappy product of McCarthyism or of the cold war
mentality.

63

In the spring of 1952, throughout the country there prevailed public
demonstrations and public meetings against the bill.' Perhaps there had
never been such widespread, organized anti-government movements in the
entire history of Japan. The people were worried about the revival of the
prewar "police state," seeing in the SAC bill a sign of resurrection of the
notorious Peace Preservation Law of 1925.

The bill finally passed the Diet in late July of the year, but only after
it had been subject to various changes. (It should be pointed out, though,
that changes were in terms of phraseology rather than substance.) 65

61. See, e.g., TOSHIMASA SUGINUMA, Er AL, SENGO CHIAN RiPPO NO HATrEN TO
TOKUSHITSU, CHIAN Rippo 29 (1958); Yutaka Miyauchi, Keisatsu Kiko, 61 HOGAKU RONSO, No. 5,
at 23 (1955).

62. Act of Sept. 23, 1950, ch. 1024, title 1, 64 Stat. 987 (current version at 50 U.S.C. §781
et. seq. (1994)).

63. The similarity of the name in the two laws was not by accident. It has been said that the
Japanese law was made under the strong influence of the U.S. law. See, e.g., Yutaka Miyauchi,,
Sengo Chian Rippo no Saihen to Kihonteki Seikaku, in SENGO CHIAN RIPPO NO KIHONTEI SEIKAKU
25, 47 (1960). However, this is not a place for the writer to try to develop a comparative study of
these two laws. Suffice it to say that for the Japanese law the target was also communist movements
and their organizations and that as such the law was also an unlucky accessory to cold war policies.
To that extent, a similarity can be drawn between the laws.

64. See, e.g., SENGO SHIRYO MASU MEDIA, 191-195 (Rokuro Hidaka, ed. 1970). See also.
SHIRY6 SENGo 20 NEN SHI: RODO, 190-196 (Kazuo Okouchi ed. 1966).

65. See generally ITARU SEKi, HAKAI KATSUDO BOSHIHO KAISETSU (1952) (as to the
legislative process).

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

B. Analysis of the Subversive Activities Control Law

The structure of the SAC Law66 is somewhat complicated. However,
we can broadly grasp it by dividing it into two parts: the first part deals
with the control of organizations rather than individuals; the second part
deals with the criminal handling of individual wrongdoers.

The key concept predominant in both parts is that of "subversive
activities by violence," 67 which is defined in Article 4 of the law. The
Article 4 definition is very extensive, providing a long and very
complicated list of illegal activities. However, as a matter of convenience,
the definition can be divided into two categories. The first category
concerns such crimes as rebellion, insurrection, etc.-broadly speaking,
something like the U.S. concept of "treason" or overthrow of the
government by violence. The second category includes, again broadly
speaking, regular crimes defined by the Criminal Code, but committed
with special motivations-that is to say, with political intentions. Since the
concern in this paper is with the government's attempt to dissolve Aum
Shinrinkyo by applying the SAC Law, only the first part of the law dealing
with the control of organizations will be discussed here.

The law provides for two ways of regulating organizations. Article 5
empowers the Public Safety Review Commission ( 'TSR Commission," or
simply "agency") to prohibit any organization of a certain type from
engaging in activities such as organizing public demonstrations, public
meetings, etc., or printing, distributing organs, etc. Article 7 grants the
same agency the power to issue an order of dissolution against any
organization of a certain type.

Article 5 (provision of the control on organization activities) and
Article 7 (provision of dissolution) provide, respectively, the condition
prerequisite to the agency's action by almost the same words-except that
before issuing a dissolution order under Article 7, the agency shall first
consider whether the action prescribed by Article 5 (a less restrictive
alternative than dissolution) is insufficient to suppress illegal activities of
the organization concerned. The agency may issue either a restraining
order or a dissolution order against an organization which the agency
deems as having engaged in some "subversive activities by violence" and
which will clearly be repeated in the future.

66. Hakai katsud6 b~shih5 [Subversive Activities Control], Law No. 240 of 1952.
67. Id.

1996]



COLUMBIA JOURNAL OF ASIAN LA W

In terms of these whole businesses, the law lays down two
administrative steps: first, the PSI Bureau takes the preliminary step of
giving information and evidence against the organization; and then, it
applies to the PSR Commission for an official action. Finally, the PSR
Commission takes the stage and decides formally whether it is a case in
which the agency will take any action against the organization.

As indicated above, nine months after the Aum Shinrikyo incident, in
the middle of December 1995, the PSI Bureau decided to carry out the
initial step of giving information and evidence against Aum Shinrikyo -
what we call the "explanation procedure" on the basis of Article 12. Up to
the present, the PSI Bureau has been able to perform only two sessions of
the explanation procedure, and nobody knows when the PSI Bureau will
finish the whole process, nor what kind of conclusions it will draw.

C. The Constitutionality of the Subversive Activities Control Law

Before the Aum Shinrikyo incident, the government had never
invoked the organization control clauses of the SAC Law. And as a result,
except for public discussions at the time of the legislative process in the
early 1950s, there had been no serious constitutional arguments about this
part of the law. The law had nearly sunk into oblivion.

But now that the government has decided to apply the dissolution
clause to Aum Shinrikyo, it is unavoidable for the government to confront
the issues of the constitutional validity of the law at every stage of the
whole process, including even judicial review by the Supreme Court.
Those constitutional issues raised by the SAC Law's dissolution system,
rather than the organization control scheme in general, will be discussed
below.

Constitutional arguments can be divided into two parts: the
substantive aspects of the law and the procedural aspects of the law.

1. Substantive Aspects

The dissolution system of the SAC Law is quite different from that of
the Religious Corporation Law. The latter involves merely a deprivation
of a legal status (or the privilege) as a religious juridical person, whereas
the former constitutes not only the denial of the organization's very
existence, but also the direct denial of individual membership. In terms of
the effect on people's freedoms (freedom of religious association, freedom
of religious performances, freedom of religious communication, etc.), the
former system could be more serious than the latter. Therefore, in

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

considering the question of constitutionality, the former should be subject
to stricter scrutiny than the latter.(8

Article 7 prescribes several conditions for the operation of the
dissolution scheme. First, to issue a dissolution order, the agency has to
prove that the organization has already conducted "subversive activities by
violence." Second, the agency must present enough evidence to support the
belief that there is a clear danger that the organization concerned will
continue to conduct or will repeat subversive activities as actions of the
organization in the future.

The key concept of the SAC Law, "subversive activities by violence,"
appears here as axial for inflicting, as it were, capital punishment upon an
organization. But does the law define this concept precisely and narrowly
enough to be constitutional? As noted above, Article 4 of the law gives the
definition. The list of what constitutes "subversive activities by violence"
is very extensive and very complex. It seems rather difficult not to have
doubts about its legal validity.

There are, as already mentioned, two types of "subversive activities
by violence." The first is of the "rebellion, insurrection or treason" type
(Article 4, Section 1, Clause 1) and the second is of the type of "regular
crimes with political motivations"type (Article 4, Section 1, Clause 2).
Since the government has not yet tried to deal with the cult organization by
using the first category (despite strong pressure by conservative politicians
and lawyers),69 it will not be discussed here. At least at the moment, the
PSI Bureau has accused Aum of committing, and plotting to commit,
murder with political motivations in the Matsumoto sarin incident of June
1994.

As for political motivations, the law defines this as an "intention to
carry out, to support, or to oppose any political principle or policy." Is this
phraseology precise and narrow enough to be constitutional? Perhaps it is
fine, if you contemplate application of the law to communist or another
type of organization with some identifiable political ideology. But if you
try applying the law to an obscure, but principally religious, organization
like Aum Shinrikyo, does this phrase still work as an appropriate standard?

68. See infra p. 148 (as to the strong effect which Article 8 of the law bestows with the
dissolution order in an evaluation of the constitutionality).

69. See, e.g., Kazuo Kawakami, Ssa, Kohan no Mondaiten wa Nanika, HOGAKUi Se,.UNA.
Feb. 1996, at 16. Kawakami, former Public Prosecutor of the Supreme Public Prosecutors' Office,
was of the opinion that the government should have indicted Asahara, the guru of Aum, for a rebellion
in addition to homicide and other charges.

1996]



COLUMBIA JOURNAL OFASIANLAW

The law requires that any "subversive activities" shall be recognized
as conducted by the organization itself ("as the organization's actions")
rather than by its individual members. Again, it might be satisfactory if
application of the law to any political association is more or less
philosophically consistent. But what about in the case of a cult
organization such as Aum Shinrikyo? Would it be possible to identify an
"organization's actions" as distinct from actions done by individual
members in the case of a cult organization?

With regard to the requirement that there be a clear danger, the
then-Deputy Chief of the PSI Bureau, who had served as a principal
draftsman in the legislative process of the law in 1951-52, wrote a book in
which he stated that this requirement was satisfied by showing a possibility
of danger.7" Surely "a possibility of danger" is not enough to meet the law's
requirement. At that time in Japan, during the U.S. occupation, the "clear
and present danger" test7' of U.S. jurisprudence was unknown among
legislative bureaucrats, perhaps even unfamiliar among legal scholars.
Moreover, the writer believes that although the law does not require
explicitly that the danger be immediate or imminent, this element should
be introduced by interpretation lest the law be declared invalid. In order to
correctly say that "there is a clear danger," not only should the danger be
precisely existent, but it also should be visible in the very short, foreseeable
future, that is to say, in the immediate future. Otherwise, we cannot say
that there is a clear danger.

We will have the opportunity again to touch on the issue of the
constitutionality of Article 7 from other angles. However, the writer would
like to now turn his attention to Article 8, which is deeply connected to the
dissolution scheme. Article 8 provides that once the dissolution decree
comes into effect, no officer or member of the organization concerned may
do anything for the sake of the organization. This article purports, of
course, to pursue the dismantling effect as drastically as possible. But, does
the wording, "[d]o nothing for the sake of the organization" sound so
strong and so indefinite as to be constitutional? It is interesting that a
similar phrase had once been in the notorious anticommunist law, the
Peace Preservation Law as amended in 1928, from which the prewar
"police state" made habitual use of the law.72

70. See Seki, supra note 65 at 93.
71. Schenck v. United States, 249 U.S. 47 (1919); Brandenburg v. Ohio, 396 U.S. 444

(1969).
72. See, e.g., YASUHIRO OKUDAIRA, CHIAN IJIHO SHOSHI, 102-05 passim (1977).

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

In attempting to apply the law to Aum Shinrikyo, the PSI Bureau came
to realize that Article 8 had some constitutional difficulties due to its
broadness and vagueness. Right after the PSI Bureau took the initial step
(the 'explanation procedure), it made public "Guidelines" for the
interpretation of Article 8 immediately before the opening of the
explanation procedure. The Guidelines are peculiar in that they did not
establish a general standard for legal interpretation, but purported to show
the PSI Bureau's policy specifically for application of the law to Aum
Shinrikyo. The PSI Bureau seemed to try to limit the broadness and
vaugeness of Article 8 so that they could avoid its constitutional
difficulties. It is, however, quite dubious whether the PSI Bureau was
successful in ensuring the law's constitutionality by establishing the
Guidelines. Instead, it is arguable that the Guidelines are designed to
restrain rather than to protect religious freedom of ex-members of the cult
organization.73 In any event, the Guidelines do not have any legal force and
their existence does not prevent judicial review of the constitutionality of
the law.

2. Procedural Aspects

Let us proceed to consider constitutional difficulties from a
procedural point of view. The operation of the dissolution system starts
with an initial request from the PSI Bureau's chief (Article 11). First, the
chief shall make a notice of the PSI Bureau's request to open the
dissolution procedure and set up hearing opportunities for the organization
concerned. There then follows the explanation procedure, in which the
representatives of the organization face the PSI Bureau's officials. These
initial steps are publicly announced in the government's Official Gazette
(Article 12).

It should be noted at the outset that although the explanation
procedure handled by the PSI Bureau undoubtedly constitutes an essential
part of the whole dissolution system, the law characterizes this procedure
just as a preliminary, preparatory step for the final decision to be made by
the PSR Commission. Strangely enough, however, the provisions
concerning this rather introductory "explanation procedure" are more
detailed than those of the final decision-making process!

73. Helen Hardacre, Dissolving Aum: Legal Challenges, Future Implications 13 (1996)
(unpublished paper) (on file with author) (giving a critical analysis of the Bureau's Guidelines).

1996]



COLUMBIA JOURNAL OF ASIAN LAW

At any sessions of the explanation process, the organization may send
no more than five people as their representatives and no more than five
people as observers. Furthermore, the law allows people from news-
gathering services to attend the sessions - perhaps as representatives of
the media (Articles 14-15). As some people may be aware, with this the
law seemed to introduce a semi-open type of hearing in the administrative
process. In the early 1950's when the concept of due process was rarely
known in Japan, the introduction of this type of administrative hearings
was quite unique. We can trace this to a U.S. influence. Since then,
however, we have developed some meaningful sense of due process.74 And
given our present legal common sense, semi-open types of hearings of that
extent are not satisfactory at all. But still, it would be rather difficult to say
that the insufficiency inherent in these provisions makes the law
unconstitutional, because the constitutional requirement of an open court
(Article 82) is not literally applicable here.75

Broadly speaking, the procedural rights of the accused organization
are well secured, but not entirely free from fault. There is an uncertainty,
because of the lack of explicit guarantee, as to whether the accused party
has the right to present witnesses on its behalf. As a matter of fact, this
problem came up at the first session when Aum Shinrikyo's representatives
requested to let Asahara Shoko, the guru of the accused organization, take
the witness stand. Despite Aum Shinrikyo's urgent request, he has not yet
appeared as a witness.7 6 There exists a certain conflict among the Public
Prosecutors' Tokyo District Bureau, the Tokyo Metropolitan Police, and
the PSI Bureau surrounding the issue of how to deal with the guru, who is
presently being detained in prison and has never appeared before the court
for his own trial. Whatever positions may be taken by these three agencies,
Aum Shinrikyo's request was taken as reasonable and undeniable, but
meeting the request will be postponed until some time in the near future.
It is certain that if the PSI Bureau should proceed and finish the
explanation process without giving the opportunity to the guru or other
people to serve as witnesses, the whole process will be regarded as
contrary to due process of law and hence invalid.

74. See Okudaira, supra note 72, at 13-16 (in respect to the gradual adoption of the concept
of due process).

75. Kenp6 [Constitution of Japan], art. 82, para.l ("Trials shall be conducted and judgment
declared publicly.").

76 This was true at the time when this article was written. However, he was at last
allowed to appear as a witness before the PSI Bureau on May 15, 1996 and May 28, 1996. See
ASAHI SHINBUN, May 15, 1996, Evening, at 1; ASAHI SHINBUN, May 29, 1996, at 1.

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

Another procedural defect can possibly be found in Articlel6. This
article provides that the PSI Bureau does not have to investigate any
evidence which has been presented by the accused party (Articlel4 secures
the accused party's right to present evidence), if the PSI Bureau deems it
unworthy. Undoubtedly this provision gives the PSI Bureau discretion that
is too broad. Thus, the law tries to limit such discretion by adding the
proviso that the delegated officials shall take caution not to unjustly
restrain the accused party's right to fair treatment. The real point is,
perhaps, in the actual operation of the proviso.

After the explanation procedure has completely finished, the PSI
Bureau must determine whether it will continue or discontinue the
dissolution procedure. If it chooses to continue, the PSI Bureau shall send
all of the evidence that was presented before the explanation procedure as
well as all minutes of the proceedings (Article 20). From this phase on, the
PSR Commission acts as the sole player.

In view of the legal structure in which this commission is the agency
to decide the matter concerned and the PSI Bureau is merely an organ to
collect (by handling the explanation procedure) proper and necessary
information for consideration by the commission, it seems rather
mysterious that the procedural clauses for the former are weaker than those
for the latter. There is no provision for the right to hearings or any other
kind of procedural rights on the part of the accused party. It seems that the
law allows the PSR Commission to reach its decision mainly on the basis
of the oral testimony, the documents, and other written material that have
been produced by the PSI Bureau. In other words, the law appears to
presuppose that the case is decided in secret sessions by the one-sided
handling of the commission. This is the reason, the writer submits, why the
law here, being different from the case of the explanation procedure, is
utterly silent about the accused party's representation and about the
attendance of observers or representatives of news-gathering services.

It is true, that the law (Article 22) provides that in the
decision-making process "the PSR Commission may make any
investigations which it deems necessary." For example, the PSR
Commission may summon any interested parties, references, and the like.
But it appears that it is left to the discretion of the PSR Commission to
determine what kind of investigation is necessary and when it should be
performed. The law says nothing about the reservation of rights of the
interested accused party.

The writer submits if the PSR Commission carries out its "review"
process in its own way without compensating for the silence of the law, the

1996]



COLUMBIA JOURNAL OF ASIAN LAW

decision thus reached will inevitably invite critical arguments about due-
process protection.

For better or worse, the SAC Law is unusual in the Japanese legal
system in that action such as the disbandment of an organization is carried
out through administrative procedures. This kind of action in other fields
is, as a rule, taken by the judicial courts.' For instance, as we already
know, Aum Shinrikyo's dissolution as a juridical person under the
Religious Corporation Law was carried out by the court. In upholding the
constitutionality of this disorganization scheme, as will be recalled, the
Supreme Court offered different reasons, one of which concerned the
fairness of the procedure. In this respect the Court placed emphasis on the
fact that the system was handled by a judicial court. It is highly interesting
to observe how this kind of reasoning will be applied to the case of Aum
Shinrikyo's dissolution under the SAC Law.

3. Problems That Remain

So far we have briefly discussed the constitutionality of the SAC Law
with respect to the dissolution scheme it sets up. The next question is
whether this part of the law could be properly applied to the case of Aum
Shinrikyo. The most serious problem in doing so is the issue of how the
government will be able to overcome the requirement for the dissolution
order provided by Article 7 of the law. The government has to prove, for
example, that there is a clear and present danger that the cult organization
will continue to conduct or will repeat in the future similar kinds of illegal
activities as those involved in the two sarin incidents as well as other
incidents. Is this organization still capable of conducting "subversive
activities by violence," despite all of the subsequent events such as the
bankruptcy declaration to preserve assets to be paid as the damages of the
victim groups, the denial of the status as juridical person, and the
imprisonment of a great number of persons, including the guru and other
leaders of the cult group? But, however interesting they may be, these are
all matters of application of the law beyond the scope of this article and left
for the analyses of other writers.

77. See, e.g., Sh6h5 [Commercial Code) art. 58, (with respect to the dissolution of a
commercial company); Dokusen Kinshih6 [Anti-Monopoly Law] art. 95 para. 4 (in the case of
disbandment of a trade association which is deemed to have violated the law).

[10:127



CONTROL OF RELIGIOUS ORGANIZATIONS IN JAPAN

V. A FEW WORDS FOR PERSPECTIVE

The LDP formed a special 'Working Team" (headed by a former
Minister of Education, K. Yosano) and assigned it to deliberate on issues
of "Politics and Religion" and to produce a draft law which accommodates
the conflicting interests in this very sensitive area. Already at the end of the
year, it was reported that the team had made a first draft for the bill
provisionally called "Fundamental Law on Religion" or "The Fundamental
Law on the Separation Between Politics and Religion."

The contents of the draft as publicly reported 78 are remarkably
extensive: a definition of "religion" and "religious organizations," several
provisions concerning the separation between the state and religion, the
relationship between education and religion, various provisions on the
regulation of religious organizations' activities, and a special provision on
the dissolution of religious organizations among others.

There is no doubt, however, that the main target of the draft law is the
regulation of political involvement of religious organizations. The draft
imposes, first of all, upon religious organizations the duty to concentrate
on religious activities along the line of their own religious doctrines (it, of
course, contains a proviso that it does not prevent them from engaging in
public interest activities). Apparently, the most essential part of the draft
is this:

[N]o political party or member of the Diet may utilize any
religious authority or religious doctrines in order to assert the
legitimacy of its (his/her) political position, etc. . . . No
religious organization may form a political party aimed at the
realization of its doctrines. No religious organization... may
contribute any amount of money to any political party, political
organization, member of the Diet, or any local government
assembly ....

Obviously, this part of the draft is in conflict with the constitutional
guarantee of religious freedom, unless one repudiates the established
interpretation of Article 20(1) and replaces it with a new interpretation that
that clause prohibits religious organizations from having a commitment to
politics. That is the reason why the LDP, notwithstanding that it is the most
influential of the parties in power, was unable to get any legislative

78. See, e.g., CHOGAI Nippo, Feb. 1, 1996, for the most recent and well-formed draft.

19961



COLUMBIA JOURNAL OF ASIAN LAW

assistance from the Cabinet Bureau of Legislation. The bill, if finally
completed, will be presented to the Diet under the names of individual
members of the LDP and other affiliated parties, not by the sponsorship of
the government itself.

At the outset, the LDP seemed to attempt to provoke public
sentiments against the abuse of privileges and immunities of religious
organizations and their involvement in politics so that by the spring of
1996 they could create to a certain degree conditions that would be
advantageous for the enactment of their bill. But it turned out, on the other
hand, that from the end of 1995, much more serious problems developed,
and all of the energy of politicians was consumed to confront these
problems.79 These events have forced the LDP to delay drafting of the
"Fundamental Law of Religion" and presenting it to the Diet. However,
even without the interference of new political crises, such a drastic
legislative attempt as this will not be successful under the present
circumstances since the concept of constitutional guarantee of freedom of
religion has been so firmly established among the people that the attempt
will inevitably have to be confronted with people's resistance on a wide
scale. It seems no single political party or even a coalition of a few parties
has any political powers to carry forth such an energy-consuming
undertaking.

The main target of constitutional challenge in the field of religion has
been set on the establishment clause (Article 20, Clause 3) because of the
legacy of various forms of state-Shintoism.80 This tendency will likely
continue, but the Tokyo sarin gas incident has shrouded another
constitutional clause (Article 20, Clause 1) in controversy as well. It
remains to be seen whether government interference in the affairs of
religious organizations shall become an enduring area of constitutional
controversy.

79. The most troublesome topic is how to settle the failure of housing loan companies-
a symbolic issue of the aftereffects of the late "bubble era" of economics. Additionally, the redefining
of the Security Treaty between Japan and the United States as well as the settlement of the Okinawa
problem are also very serious. Next comes the HIV problem, which originally concerned the Welfare
Ministry, but has now developed into a public demand for open government generally.

80. Some examples of this legacy include the Yasukuni shrine issue and the issue around
the Emperor's various rituals.

[10:127