Dissolving Religious Corporations in Japan: Constitutional Problems. 4. Violation of International and Domestic Provisions on Fair Trial

Proceedings for the dissolution of a religious corporation are conducted behind closed doors, which makes them especially unfair for the accused religion.

By Setsu Kobayashi

July 22, 2025

Article 4 of 5. Read article 1, article 2, and article 3. Note: We have kept the parenthetical references of the Japanese original.

British poster promoting the International Covenant on Civil and Political Rights.

Violation of the International Covenant on Civil and Political Rights and Article 98, paragraph 2 of the Constitution

Article 18, paragraph 1 of the United Nations International Covenant on Civil and Political Rights (the so-called Covenant B, which came into force in 1976 and was ratified by Japan in 1979) states, “Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching.”

In addition, Article 98, paragraph 2 of the Japanese Constitution states, “The treaties concluded by Japan and established laws of nations shall be faithfully observed.”

Nevertheless, since a dissolution order based on grounds and procedures that violate Article 31 of the Constitution has the effect of transferring the management rights and even ownership of a church or place of worship, and can severely restrict the use of believers, it is clear that this severely limits the freedom of religious activity of churches and believers.

Therefore, the state’s deprivation of a religious corporation’s status without legitimate grounds and due process cannot escape criticism as violating Article 18, paragraph 1, of the International Covenant on Civil and Political Rights and Article 98, paragraph 2, of the Japanese Constitution.

Violation of Articles 32 and 82 of the Constitution

Furthermore, the Constitution guarantees to everyone “the right of access to the courts” in Article 32. It also guarantees in Article 82 that “adversary proceedings shall be conducted and judgment declared publicly.” In other words, citizens are guaranteed the right to public and adversary trials in court for “legal disputes that concern the existence of rights, particularly human rights.” Trials must be “fair” in their very nature, and the core element that guarantees fairness is an “adversary proceeding” between the parties in an “open” courtroom, not behind closed doors. The essence of an adversary proceeding is the availability of cross-examination.

Furthermore, Article 14, paragraph 1 of the International Covenant on Civil and Political Rights states, “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” This is a principle common to all civilized countries including the United States, the United Kingdom, France, and Germany. State actions that violate the provisions of this treaty violate Japan’s “obligation to observe international law in good faith” as stipulated in Article 98, paragraph 2 of the Japanese Constitution.

Italian artist Gaetano Gandolfi (1734–1802) represented justice and the guarantee of fair trials in this painting, which is now at the Louvre Museum in Paris. Credits.

The meaning of “trial” and non-contentious cases

“Trial” in Article 82 of the Japanese Constitution generally means civil and criminal litigation procedures. It does not include non-contentious proceedings or administrative proceedings of guardianship by the state. Article 81, paragraph 7 of the Religious Corporations Act stipulates that the procedure for issuing an order to dissolve a religious corporation is a “non-contentious proceeding.”

However, the issue at stake in this case is through what court procedure should the legal interests of the religious organization be determined authoritatively. The facts at issue in the Family Federation case are, “Did the former Unification Church commit anti-social acts that justify dissolution?” It is clear that for the parties involved, this is a “legal dispute” that concerns the “continuation of their religious life in the future.”

On this point, the Supreme Court has confirmed that, regardless of the wishes of the parties, “litigation cases that are purely litigious in nature” whose purpose is to conclusively establish the facts and determine the existence of the rights and obligations asserted by the parties must be conducted by ‘adversary proceeding’ and judgment in an ‘open’ court” (Supreme Court Grand Bench decision of July 6, 1960, “Supreme Court Decisions for Civil Actions,” vol. 14, no,. 9, p. 1657).

Therefore, the dispute over the dissolution order stipulated in Article 81, paragraph 1 of the Religious Corporation Law, which is the issue at hand, is a dispute over whether the former Unification Church “in violation of laws and regulations, has committed an act which is clearly found to harm public welfare substantially” (item 1) according to the specific requirements outlined in the law, and whether the law should be interpreted and applied to force dissolution. Dissolution means stripping the church of its certified legal personality, transferring the right to manage the facilities and other assets owned by the church to a liquidator, and liquidating them, which is a change in the rights relationship in a legal manner, and a change in the religious life of church members in general, that is, their very lives.

It is thus unreasonable to regard this as a purely non-contentious case. In particular, considering that freedom of religion is a “superior human right” and that the dissolution of a religious organization (the stripping of its legal personality) is a fatal violation of the religious freedom of the church and its members, it would be more natural to consider this a “typical litigation case.”

It is often said that it is difficult to distinguish between non-contentious cases and litigation cases. However, it is clear that, regardless of the formal distinction in legislation, the procedure in line with the actual legal interests, particularly human rights, that are being infringed, is the best way to guarantee the right to a fair trial, as clearly stated in the Constitution.

In this regard, a case involving the procedure for imposing administrative fines, which was argued at the Supreme Court, can be used as a reference. In that case, the Supreme Court Grand Bench decision of December 27, 1966 (“Supreme Court Decisions for Civil Actions,” vol. 20, no. 10, p. 2279) stated that the imposition of a fine is the so-called guardianship of civil supervision by the state. In substance, it has the nature of a type of administrative disposition. Even when imposed by a court, it differs from the imposition of criminal sanctions, which are purely litigious. The Supreme Court also stated that it is “quite natural” that an appeal should be made according to the procedure for immediate appeal stipulated in the Non-Contentious Cases Procedure Law.

However, given that fines are legal and economic sanctions by the state against those on whom they are imposed, it can be said that the dissenting opinion of Judge Toshio Irie is undoubtedly correct. Irie stated that “when an appeal is filed against the decision, such a dispute is ultimately a legal dispute and should ultimately be handled as a typical litigation case, and Articles 32 and 82 of the Constitution (guarantee of adversary proceeding in open court) should naturally apply… If this case is treated as a non-contentious case from start to finish, and the only remedy allowed is an immediate appeal (or a special appeal against the decision) under the Non-Contentious Cases Procedure Act, and this ultimately makes it an incontestable case, the provisions of the Non-Contentious Cases Procedure Act must be said to violate the above-mentioned articles of the Constitution.”

This opposing position is also supported by influential constitutional law theories (Koji Sato, “Constitution of Japan,” p. 608; Yoichi Higuchi, “Constitution,” p. 142). In particular, it should not be overlooked that the present case is not one in which the parties are subject to guardianship by the state, but rather one in which they are confronted with state power regarding their superior human rights.

Supreme Court Judge Toshio Irie (1901–1972). Credits.

Actual harm and the rule of law

However, Article 81, paragraph 7 of the Religious Corporations Act stipulates that the Non-Contentious Cases Procedure Law shall govern the procedure for issuing an order to dissolve a religious corporation. Article 30 of the Non-Contentious Cases Procedure Law stipulates that the procedure shall be “confidential.”

The affected parties have criticized the fact that there were several statements submitted by the MEXT as evidence (which are unfavorable to the former Unification Church) during the district court proceedings, which appear to have been fabricated. This will become clear when the records are inspected. Even so, it will be too late to reveal this after the dissolution procedures have begun and the church has been put in a dysfunctional situation, as the damage will already be done. It is hard to believe, but if it is true that there has been a “fabrication of evidence” resulting from the essential flaws of non-contentious case procedures (i.e. non-disclosure), then the former Unification Church and its members who were tried based on this would be the victims of a “modern witch hunt” through a closed-door trial (administrative procedure). This could even damage the trust in the rule of law and the judicial system.

Such a situation would have been avoided if public and adversary trials had been guaranteed in accordance with constitutional principles. In this case, the public trust in the judiciary would not have been damaged.

Source: bitterwinter.org