High courts not on same page on Yasukuni visits

Back-to-back conflicting rulings unlikely to stop Koizumi from going to Tokyo war shrine

by Reiji Yoshida

Last week’s conflicting high court rulings on Prime Minister’s contentious visits to Yasukuni Shrine showed that the judicial system of the world’s second-largest economy is sharply divided on the politically sensitive issue.

The visits to the war-related shrine, a recurring source of diplomatic friction with China and South Korea, have prompted several lawsuits charging that Koizumi is violating the supreme code’s separation of state and religion.

The Tokyo High Court ruled Sept. 30 that Koizumi’s 2001 visit to Yasukuni was made in a private capacity and avoided ruling on constitutionality. On the following day, the Osaka High Court ruled all his visits were official and thus violated the Article 20 of the Constitution, which prohibits the state from engaging in religious education or “any other religious activity.”

The Osaka court ruled his actions were both religious and official in nature. In all of his visits, he signed the shrine guest roster with his name preceded by his title.

How will the two conflicting rulings affect Koizumi’s contentious visits to Yasukuni Shrine, which honors Japan’s war dead as 14 Class-A war criminals?

The simple answer is: They won’t. Observers say the Osaka High Court’s ruling will not stop Koizumi from visiting the shrine because it does not have binding power on the executive and legislative branches.

“Yesterday’s ruling was good, but today’s ruling is very regrettable,” Chief Cabinet Secretary Hiroyuki Hosoda told reporters last Friday after the Osaka judgment. “(The two) different courts have given separate judgments. We’d like to keep watching (the developments) because there are still (lawsuits) pending.”

Many courts remain divided on the politically sensitive issue, which has not yet reached the Supreme Court. Of the 10 district and high courts to issue Yasukuni rulings so far, two have judged Koizumi’s visits as official and unconstitutional acts: the Fukuoka District Court and the Osaka High Court.

The eight others avoided the constitutionality question altogether. Some judged whether Koizumi’s visits were official state acts or private visits, and whether damages should be awarded. All rejected any monetary award.

Four of the 10 courts judged the visits as official acts and two said they were private. The others didn’t even address the visits and merely ruled out damages.

The government is attempting to play down the Osaka High Court’s ruling. It reckons the visits were described as unconstitutional in a supplementary paper on the court’s reasoning and that it is not directly connected with the main ruling.

Indeed, the main ruling did not touch on the constitutionality. It only addressed the plaintiffs’ demand for damages for “mental suffering” the visits allegedly caused. Since their demands were rejected, Koizumi declared that he won the case.

Presiding Judge Masahiro Otani said Koizumi’s shrine trips did not violate the plaintiffs’ freedom of thought, conscience, religion or privacy.

“The judgment of unconstitutionality was stated as a side argument, and it will not affect judgments at other lawsuits” filed against Koizumi’s visits, Tsutomu Takebe, secretary general of the Liberal Democratic Party, argued in a written statement released Sept. 30.

Whether the Osaka High Court case goes to the Supreme Court is up to the plaintiffs, since they are the ones who were denied damages. But the ruling is likely to give more symbolic ammunition to the political forces opposed to Koizumi’s contentious visits.

The Sept. 30 Osaka High Court ruling is the second one and first at the high-court level to declare the shrine visits unconstitutional. Tsukasa Sato, professor emeritus at Kanagawa University and an expert on the Constitution, said the Osaka ruling is remarkable because courts tend to avoid making constitutional judgments on politically sensitive issues.

“Japanese courts have been quite reluctant to make judgments on the constitutionality of government actions because (they respect) the separation of administrative, legislative and judicial powers,” Sato said.

But the professor reckoned the courts should be more active in defending citizens’ rights because the administrative branch is much stronger than the judicial branch in Japan, compared with the situations in the United States and other countries.

Koizumi’s repeated visits have angered China and South Korea as well as local politicians and citizens’ groups who remember the war shrine as a spiritual pillar of the country’s fervent Shinto-inspired militarism during the war.

To keep his pledge to visit the shrine at least once a year, Koizumi will have to thread his next visit into a tight diplomatic schedule that includes visits with other Asian leaders by the end of the year.

On Oct. 17, Yasukuni Shrine will start Reitai-sai, its most important biannual religious ceremony. The shrine said it wants to invite a prime minister to attend the rite, which takes place in the spring and fall.

But Koizumi is set to meet the leaders of China and South Korea at an Asia-Pacific Economic Cooperation forum summit in November and an East Asian leaders’ meeting, and South Korean President Roh Moo Hyun at a summit in December.