Statement by Japanese Constitutional Law Scholars of August 31, 2022 Japanese Government’s Decision to Give Former Prime Minister Abe a State Funeral Violates the Constitution of Japan

On July 22, 2022, the Japanese Government announced by Cabinet decision that the funeral of former Prime Minister Abe would be held on September 27 (Tuesday) at the Nippon Budokan in Chiyoda-ku, Tokyo, in the form of a state funeral, and the bereaved family agreed. Prime Minister Kishida will serve as the chairman of the funeral committee and all the expenses for the funeral will be paid from the reserve fund of this fiscal year. As researchers majoring in constitutional law, we oppose to the implementation of this state funeral because we fear that if this state funeral is carried out, it will not only have no legal basis, but also violate current Japanese constitutional law, the Constitution of Japan, both procedurally and substantively.

1. Under Japanese prewar constitutional law, the Meiji Constitution, the “State Funeral Ordinance” (promulgated in 1926) existed and state funerals were held for members of the Imperial Family and those who “had distinguished themselves in the service of the nation”. The application of the State Funeral Ordinance was timed to coincide with Taisho Emperor’s state funeral. The emperor’s wishes dictated that funerals be held and that the people of Japan be obliged to mourn. The formality of the national funeral had the effect of encouraging the militarization of the Meiji Constitution more than anything else, as in the case of Isoroku Yamamoto¹, but this “State Funeral Ordinance” expired in 1947 with the implementation of the postwar Constitution of Japan. The state funeral ordinance is in violation of the egalitarian principle (Article 14 of the Constitution) as well as the guarantee of fundamental human rights (Articles 10-40) stipulated in the current Constitution. After the war,
there was only one state funeral for former Prime Minister Shigeru Yoshida in 1967, but this was an exception among exceptions because of his “dedication to postwar reconstruction”. A state funeral was also proposed for former Prime Minister Eisaku Sato in 1975, but the Cabinet Legislation Bureau, that used to be a watchdog of the Constitution, refused to approve it, and the proposed state funeral was not carried out. Since the time of former Prime Minister Masayoshi Ohira in 1980, joint funerals between the government and the Liberal Democratic Party have been the customary format.

2.The long sealed state funeral is about to be conducted by the Kishida Cabinet for the following reasons. (1) Mr. Abe assumed the heavy responsibility of Prime Minister for eight years and eight months, the longest period in the history of constitutional government. (2) His great achievements in the reconstruction from the Great East Japan Earthquake, the rehabilitation of the Japanese economy, and the development of diplomacy based on key relations with the US and Japan. (3) His high reputation in related society, including among foreign leaders. (4) His sudden death due to the barbaric behavior during the election campaign. However, has the Abe Cabinet done what is worthy of praise, as described in (1)-(3) points? During his first term (90th Prime Minister), he implemented the revision of the democratic Fundamental Law of
Education and the promotion of the Defense Agency to the Ministry of Defense, but left office due to a Cabinet scandal and his own illness. During his second long term in office (96th-98th Prime Minister), he repeatedly revised laws that violated the Constitution (e.g., the Organized Crime Law’s collusion crime, security- related laws, etc.) and left behind money scandals that were dubbed the “Moritomo-Kake-Sakura” scandal. He again relinquished his post, using his illness as an excuse, and he did it without answering the many allegations made against him. In particular, the allegations against former Prime Minister Abe, who tampered with records of the Ministry of Finance and covered up the facts, even going so far as to drive one of the finance bureaucrats to suicide, are still very large, but they are still in the dark. On the other hand, despite so-called his many diplomatic achievements, there has been no significant progress on “the issues of territory, military bases, and the Korean Peninsula”, which have been a cause for concern. The Abe Cabinet has raised to revise the Constitution, but he failed to do so facing objections raised by Japanese people. The reality is that the core of the Constitution has been gradually eroded without formal procedure of revising constitutional law clearly stipulated in Article 96.

3.The Kishida Cabinet, at the suggestion of the Cabinet Legislation Bureau, insists that it is now attempting to formally implement the state funeral as “affairs under its jurisdiction” as stipulated in Article 4, Clause 3, Item 33 of the Law for Establishment of the Cabinet Office. However, this law is just an organization law. Since the organization Law only describes what areas of work the government can perform, what and how it is to be implemented, especially when making important government decisions including the state funeral, must be specified separately in the Action Law. Therefore, conducting a state funeral solely on the basis of the Law for Establishment of the Cabinet Office would lack a basis in law. Here is a clear violation of the rule of Law. Furthermore, even if the formalities are fulfilled, the state funerals substantively violate the Constitutional Law.

4. Although the cabinet secretary has stated that “public schools will not be closed on the day of the state funeral”, the government’s implementation of the state funeral and the images shown on TV could have a huge impact on the general public. The government may request a specific time for the public to express their condolences and may recommend the use of mourning flags in public institutions. The current administrative directive by the Minister of Education, Culture, Sports, Science and Technology to national and public universities to fly the national flags may be strongly and extensively enforced² . All of these things would constitute a violation of fundamental human rights guaranteed by the Constitution. First, they will violate the “freedom of thought and conscience” guaranteed by Article 19 of the Constitution of Japan. To paraphrase this freedom, it would be “inner freedom”, which protects the core human thought, and restrictions on this freedom must be strictly scrutinized. According to Article 19, particular care must be taken to ensure that the state funeral should not force children to participate as a school activity. Second, they may infringe upon the “freedom of religion” guaranteed in Article 20. Although Japanese government says that it is supposed that the state funeral would be performed without any religious aspect, many people in Japan would accept it as part of a religious ceremony, since it is related to the death of an individual. Third, they would be a violation of “freedom of expression” guaranteed in Article 21 of the Constitution. Lastly, although such state funerals are said to be free from coercion according to the government’s explanation, in fact, they go against “personal dignity” as well as the right of each individual to decide how to be a human being guaranteed in Article 13, because they will be done against the individual’s belief.

5. The current financial estimate is that the Minister of Finance will pay for this out of the reserve fund. However, if security were to be thoroughly implemented, it would require a considerable amount of expenditure³ . The problem lies not only in the amount of money, but also in the way how the reserve funds are used. They are supposed to be used in response to catastrophes and epidemics such as COVID-19. In any case, the use of the reserve funds must be submitted to Diet deliberation (Article 83 of the Constitution). It would be inappropriate to allocate public funds for dead individuals who have already become private citizens (Article 89 of the Constitution). After all, Kishida Cabinet is carrying out a state funeral on behalf of a private person at government expense. This is extremely abnormal in a nation governed by the rule of law, especially in a country with a constitutional law that provides for the separation of church and state (Article 20, Paragraph 3 and
Article 89). It is presumed that the government would have a special political interest in performing the state funeral. If the state funeral is intended to glorify the deceased more than necessary, and to keep them in the public memory for political effect as well as for the survival of the current administration, all of these may violate constitutionalism of the Constitution of Japan, which seek to strictly constrain the actions of the state.

Endorsed by 84 people as of August 3, 2022
→ Endorsed by 85 people as of September 26, 2022

Nobuyuki Asano, Professor, Kansai University
Hideo Adachi, Professor Emeritus, Osaka Electro-Communication University
Shigeaki Iijima, Professor, Nagoya Gaguin University
Shusaku Iguchi, Professor, Ehime University
Takako Ishikawa, Associate Professor, Kanazawa University
Osamu Ishimura, Professor Emeritus, Senshu University
Yoko Ida, Professor, Nagasaki University
Masaki Ina, Former Professor, International Christian University
Mamiko Ueno, Professor Emeritus, Chuo University
Kenichi Uematsu, Professor, Ritsumeikan University
Masahiro Usaki, Professor Emeritus, Dokkyo University
Kenji Urata, Professor Emeritus, Waseda University
Katsuyuki Ehara, Professor, Waseda University
Shiro Okubo, Professor Emeritus, Ritsumeikan University
Hiroshi Otsu, Professor, Meiji University
Kenichiro Okada, Associate Professor, Kochi University
Tsunehisa Okuno, Professor, Ryukoku University
Minoru Oguri, Professor Emeritus, Kagoshima University
Ryuichi Ozawa, Professor, The Jikei University School of Medicine
Yoshiyasu Ono, Professor Emeritus, Iwate University
Masaru Kaneko, Professor Emeritus, Rissho University
Hiroyuki Kamiwaki, Professor, Kobe Gakuin University
Akihiro  Kawakami, Associate Professor, Hiroshima City University
Hiroaki Kawabata, Professor, Aichi Prefectural University
Satoshi Kinoshita, Professor, Kansai University
Akihiko Kimijima, Professor, Ritsumeikan University
Aisa Kiyosue, Professor, Graduate School of Muroran Institute of Technology
Motoyuki Kurata, Professor, Ritsumeikan University
Koji Kuramochi, Professor, Nanzan University
Satoshi Kotake, Professor, Takushoku University
Mitsuo Goto, Professor, Waseda University
Takeshi Kobayashi, Guest Professor, Okinawa University
Naoki Kobayashi, Professor, Himeji Dokkyo University
Hiroshi Komatsu, Professor, Ritsumeikan University
Yoko Kowata, Professor Emeritus, Aichi Prefectural University
Makoto Kondo, Professor Emeritus, Gifu University
Hiroshi Sasanuma, Professor, ShizuokaUniversity
Kazuhisa Saito, Professor,  Nagoya University
Sayuri Saito, Professor, Keisen University
Hidenori Sakakibara, Professor, Nanzan University
Yoshikazu Sawano, Special Contract Professor, Osaka University of Economics and Law
Masahiko Shimizu, Professor, Nippon Sport Science University
Makoto Sugawara, Professor, Nanzan University
Masumi Suzuki, Professor Emeritus, Ryukoku University
Tomomi Takasa, Professor, Aoyama Gakuin University
Masahiro Takasaku, Professor, Kansai University
Toshiyasu Takahashi, Professor Emeritus, Hiroshima Shudo University
Hiroshi Takahashi, Professor Emeritus, Aichi Gakuin University
Toshiko Takeuchi, Professor Emeritus, Hiroshima Shudo University
Masataka Takemori, Professor Emeritus, Gifu University
Yasuhiko Tajima, Former Professor, Sophia University
Ichiro Tada, Professor, Ritsumeikan University
Noriyuki Tsukada, Professor, Kobe Gakuin University
Setsuko Norimoto Tsuneoka, Professor Emeritus, Ferris University
Mitsuhiro Naito, Professor, Senshu University
Ritsu Nakagawa, Associate Professor, Saitama University
Hiroshi Nakasatomi, Professor, Osaka Electro-Communication University
Shigeki Nakajima, Professor Emeritus, Ritsumeikan University
Koichi Nakatomi, Professor, Hiroshima Shudo University
Nobuhiko Nagamine,Professor, Aichi University
Hideki Nagata, Professor Emeritus, Kwansei Gakuin University
Shigeki  Nagayanama, Professor, Tokai University
Takato Narisawa, Professor, Sinshu University
Takashi Narushima, Professor Emeritus, Niigata University
Yumiko Nihei, Former Professor, Sakura no Seibo Junior College
Toru Niwa, Professor, Ryukoku University
Ken Nemori, Professor, Graduate School of Toa University
Satoshi Hatae, Full-time Lecture, Faculty of Law, Aichi Gakuin University
Go Hatajiri, Guest Researcher, Japan Institute of Comparative Law, Chuo University
Mitsuko Fujino, Special Contract Professor, Fukushima Medical University
Toshiaki Fukushima, Professor, Kobe Gakuin University
Toyoaki Furuno, Former Professor, Toin Yokohama University
Kiyotaka Maehara, Former Professor, Nagasaki Institute of Applied Science
Yukio Matsui, Professor Emeritus, Kwansei Gakuin University
Yukie Matsubara, Associate Professor, Yamaguchi University
Asaho Mizushima, Professor, Waseda University
Motoi Miyaji, Professor, Meiji Gakuin University
Hisanori Murata, Professor, Kansai University
Ken Motoyama, Professor Emeritus, Ryukoku University
Takashi Monden, Professor, Hiroshima University
Toshihiro Yamauchi, Professor Emeritus, Hitotsubashi University
Noriko Wakao, Former Professor, Bukkyo University
Yoshitaka Wakita, Associate Professor, Kobe Gakuin University
Osamu Watanabe, Professor Emeritus, Hitotsubashi University
Susumu Wada, Professor Emeritus, Kobe University

1. ,Admiral, Navy General, Commander-in-Chief of the Combined Fleet. He was killed in action in 1943.
2. At a meeting of presidents of national universities held on March 16, 2015 MEXT Minister Hirofumi Shimomura requested that “Hinomaru” be raised and “Kimigayo” be sung at university admission and graduation　ceremonies. While Shimomura stated that “it is up to each university to make its own decision,” he also stated that “the national flag and anthem have been widely established among the people through long-standing practice, and the National Flag and Anthem Law is in force. Shimomura stated that he would like to ask national universities to “make appropriate decisions”.
3. On August 26, the government decided to spend 250 million yen (1.79 million US $) from the reserved fund to cover expenses for the national funeral but excluding security costs. It is reported by some media that the total cost will amount to 3.7 billion yen (26.46 million US $) if the cost of police inspections for the security of dignitaries from various countries is included. But these figures are excluded from the government’s announcement.