Contenzioso intorno al Jichinsai da Tsu
La controversia attorno al Jichinsai di Tsu (giapponese津地镇祭诉讼, Tsu jichinsai Sosho) led in 1977 to one of the leading Supreme Court (OGH) in Japan, the relationship between state and religion in Japan. It was the first time that the Supreme Court dealing with this legal issue was involved.
Background
The Japanese Court decision in the form substantially the understanding of Article 20 of the Constitution of Japan after the war. This article, like Article 89, has been strongly influenced by the background of historical experience of the State Shinto - the de facto state religion of Japan from the Meiji period until the occupation of Japan - which, after the capitulation of Japan been abolished. The two articles are:
"1Religionsfreiheit is guaranteed. No religious community can be said with special equipment, or of any political power.
2Niemand may be forced to participate in any religious act, celebration, a custom or participate in an exercise.
3Der State its institutions have joined the religious education or any other religious activity to be understood. "
- Article 20 of the Japanese Constitution
" Public funds or other public goods can be used by any religious institutions or associations, for and as for the storage or charitable, educational or charitable works, which are not subject to public scrutiny, nor be issued or made available. "
- Article 89 of the Japanese Constitution
This constitution provided for separation of religion and state, however, proved in the practice of Japanese law is problematic, among other things, not least because the relevant Law on religious communities in Japan, the law on religious associations (宗教 法人 法, shūkyō hōjinhō) 3. April 1951, there are very vague or provisions relating to the substantive content of religion, or whose activities are made. This is justified later, because in case of Tsu Jichinsai the Supreme Court had taken the first time for the relationship between State and religion cases.
Facts
In the Japanese city of Tsu (Mie Prefecture) in 1965, Sendo-cho district of a municipal gymnasium were built, was built by the Chief Registrar of the Education Unit of the city of Tsu, Yoshiharu Ito. Before construction begins, the Shinto priests Miyazaki Yoshinaga, chief priest of the Shinto-shrine-jinja Oichi (or Ubusunugami Ujigami responsible for the construction site), and three other priests asked to hold a ceremony in which the land living ghosts need to be reassured. This ceremony called Jichinsai (地 镇 祭). The Jichinsai was the 14th held in January 1965.
From the budget of the city were to pay 7,663 yen (4,000 of them as a fee for the priest, such as costs in 3663 for the sacrifices Jichinsai; converted, the amount of time they have met DM 84.93), which were previously this expenditure, 5 December 1964 was approved by the City Council. On the other hand, direct action, in this case, the claim that in Articles 20 and 89 of the Constitution called separation of church and state was breached here. The action was a communist member of parliament gathered in Tsu City, has been formally agreed, the then mayor of Tsu.
The action was primarily the Tsu District Court for the fact that it is an ancient Jichinsai costume, the only formal resemblance went to a religious ceremony, which were rejected. In the second case, however, why the Oberlandesgericht Nagoya accepted. The Supreme Court's decision in this case, review and finally repealed rejected the complaint, which is a violation of the Constitution denied.
Particularly controversial was the procedure for the definition of (secular), customs and religious activity, as also the interpretation of this definition, the arguments of both parties depended.
decision, the Higher Regional Court Nagoya Nagoya
The Oberlandesgericht (OLG) is May 14, 1977 for the verdict that the defendant city \u200b\u200bof Tsu, the cost of Jichinsai (plus interest) and attorneys fees to be paid. However, the applicant's request to sue is not accepted.
In broad reasons for its decision, the repeated use of the OLG historical context in which the relevant articles of the Constitution to indicate that. The court stressed the importance of the radical separation between state and religion, the Constitution intended, and without the guarantee of religious freedom was impossible. A negative test of this thesis has led to numerous documents in Japanese history in which freedom of religion in Japan by the State through its interference in internal religious affairs (including law sulle comunità religiose) era stata compromessa e l'unità del culto e governo (祭政一致, saisei-itchi) ha portato.
Inoltre, il giudice ha provato a modo anche molto meticolosa, la religione e le tradizioni di definire e differenziare tra loro. Dopo la presentazione e la valutazione di numerosi fattori individuali (religionsphänomenologischen compreso il carattere di tutti i singoli atti di Jichinsai la religione e la sua genesi storica) e la loro valutazione da parte di esperti e gli esperti sono giunti alla conclusione che il Congresso in ultima analisi, solo eventi sociali potrebbero essere soggette al suo significato religioso, nella misura hanno perso (il giudice citati come esempi di questo includono la costruzione Christmas trees, to throw beans and Setsubun Hina Matsuri). Religion, in this sense is defined as "[...] the belief in the existence of the supernatural, superhuman nature (ie an absolute being, a creator, a higher existence, etc., in particular deity, Buddha, Spirit, etc.) as well as feelings and actions of awe and reverence. " It was also a problem for the assessment to the Shinto shrine is a religion (which has a clear vision) and, since this Jichinsai a real rite of Shinto shrine was (what it is, but also in various Buddhist schools), is the question of a religious ceremony, in violation paragraph 3 of Article 20 of the Constitution, violating the ritual act because it is through public political forces had been authorized.
The Supreme Court's decision
The Supreme Court stated in a decision by a majority of 10 votes to 5 on July 13, 1977 the Court of Appeal and declared by the Court of Nagoya Jichinsai for Tsu Constitution. It led to the following reasons:
First, the decision turned on an understanding of the Constitution, any fundamental relationship between state and religion to exclude. This is due to the high percentage of religion in society and the role of the state, social life, to govern others, but not practical and would be contrary the purpose of the legislation on discrimination, and vice versa unreasonable conditions. Therefore, the need for a radical understanding of government support for private universities, with a religious background, will remain, if the State fails in prison chaplain and would also be able to use the financial support of cultural monuments prohibited if they had religious significance. This radical interpretation of the court issued a denial and said that 'it real in the state is in fact almost impossible, a complete separation of church and state to achieve ".
Instead, after the purpose and effect of law is to examine whether the ratio of (the principle of neutrality religious committed) state of religion in any case exceed the appropriate level and, therefore, could affect religious freedom. It was in this case is not the case: the Jichinsai have an essentially secular purpose and had a special support of Shinto from the state or a deterioration of religious freedom were not detectable.
Moreover, the Supreme Court does not agree with the Court of Appeal regarding the religious character of Jichinsai: The ceremony in question was a routine Groundbreaking in purpose and effect of little religious significance. Aware of the ordinary citizen would Jichinsai presumably due to its long existing generally accepted come una cerimonia religiosa non è capito e non hanno alcun significato per obiettivo una forma di fede si è diffusa, una attività religiosa, in termini di limitare la libertà religiosa di azione non è stata quindi direttamente dal paese esportatore sacerdoti o indirettamente dallo Stato, non ha avuto luogo. La valutazione da parte della popolazione in generale, la Corte d'appello, nella sua precedente decisione o respinto in quanto un criterio, perché "[i. e. la popolazione in generale], per la distinzione e la limitazione dei due campi [i. e. Sacro e Profano] razionale Urteilsfähigkeit carente [e] che sono molto superficialmente religioso "è stato. La Suprema Corte, tuttavia, ha chiesto nel suo ragionamento, anche the viewpoint of the average citizen must be considered objectively justified by the ends of the separation between state and religion can be determined.
The impact and importance
Consequently, the jurisprudence of the Supreme Court at this scale. Then depends on the purpose and effect of law, which in turn based on the average of the company must be evaluated. In most cases (eg, 1993 on the court to Ireisai Mino) was as in the case of a violation of the Constitution denied. One known exception is a decision taken in 1997, direct payments from the state budget to the Yasukuni Shrine were unconstitutional as before.
The Supreme Court's decision in the case of Tsu Jichinsai is just one of 24, in an anthology is published in German translation. It 'also important for the Japanese decision Verfassungsrecht collection included.
Ernst Lokowandt Literature: The relationship between the state and Shinto in contemporary Japan: a collection of materials (University of Eastern religions, Vol 6). Otto Harrassowitz, Wiesbaden, 1981. ISBN 3-447-02094-6.
Toshiyoshi Miyazawa (translated by Robert Heuser and Kazuaki Yamasaki): Constitutional Law (Kenpo). Heymanns, Cologne 1986, the Japanese legislation Series Volume 21. ISBN 3-452-20464-2.
Junichi Murakami: "Land Opening the case, separation of state and religione", in: Eisenhardt a. (Ed.): giapponese decisioni in materia di diritto costituzionale in lingua tedesca. Heymanns, Colonia 1998 (numero di diritto giapponese, giapponese legge sotto-serie del volume 1), p. 259-286. ISBN 3-452-23504-1.
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