On December 15, 2006,
a bill to amend the Fundamental Law of Education (the Law) cleared
the House of Councilors by majority votes from the ruling parties.
However, it is really regrettable that there were very insufficient
discussions open to the public.
The deliberations, which have been focusing on how the Law
had established for sixty postwar years, have been concluded.
From now, it is required to focus on how to conduct education
based on the basic spirit of the Law. The sprit is a historical
truth and it is not replaceable.
The Law is the basic law on education and was established based
on the principles of the Constitution of Japan (the Constitution)
in order to realize the constitutional ideals. The Law has constitutional
nature as it is understood that the Law restricts the state
power by stipulating obligations and prohibitions for the state.
The most characteristic provision of this constitutional nature
was the original Article 10 of the Law which banned improper
control by the government over education and provided the improvement
of educational conditions as an objective of the education administration.
The original Article 10 stipulated that "education should
not be subject to improper control" followed by the phrase
that "it should be carried out with direct responsibility
to the whole people". However, the revised Law replaced
the phrase above with "education should be conducted in
accordance with this and other laws" (revised Article
16). The most negative concern was that due to this change of
the phrase, the current interpretation of "education should
not be subject to improper control" would be changed and
the constitutional nature which was set by the original Article
10 might be lost.
The government gave an answer to this concern during the Diet
deliberations, for example, in the meetings of the Upper House
Special Committee on Fundamental Law of Education on November
24 and December 5, 2006, affirming its position that the judgment
rendered by the Grand Bench of the Supreme Court concerning
the case of Asahikawa Scholastic Achievement Test (May 21, 1976)
would be maintained even the original Article 10 was revised
into Article 16.
In this judgment, the Grand Bench clearly stated that:
- Education should not be controlled by political ideologies
or interests since it is a cultural activity for internal
value of human beings.
- The government should be restrained from intervening in
the content of education as much as possible.
- Under the Constitution which guarantees freedom of individuals
and respects their independent personalities in governmental
affairs, the government should not intervene in education
by way of preventing children from developing free and independent
personalities. For example, to compel teachers to implant
false knowledge or one-side views in children violates Articles
26 and 13 of the Constitution.
The Grand Bench also clarified that the above mentioned matters
are constitutional requirements for education. In addition,
it mentioned that education should not be subject to "improper
control" of whichever actor is, and administration by
education administrative agencies could also be "improper
control".
The revised Article 16, paragraph 1 stipulates that "education
should not be subject to improper control and it should be conducted
in accordance with this and other laws. Education administration
should be fairly and properly conducted with the adequate sharing
of roles and with the mutual cooperation between the state and
local governments". It should be understood that this
provides the principles of education as follows:
- Education should not be subject to improper control,
- Education administration should be conducted in accordance
with legislation, and
- Education administration should be conducted fairly and
properly.
These principles should be understood as safeguard to ensure
the political neutrality, impartiality, independence, autonomy,
equity, and appropriateness of education. Furthermore, any control
of and intervention in education against the above mentioned
constitutional requirements could also be “improper control”
even though such control or intervention is conducted as education
administration based on particular legislation. Such position
should be maintained even after current revision of the Law.
From now on, the JFBA recognizes the role burdened is imperative.
As mentioned above, the prioritized concern of the JFBA was
the interpretation of the phrase that "education should
not be subject to improper control". The JFBA takes a
responsibility to clarify, from the standpoint of the legal
profession, that the prior interpretation should be maintained
under the revised Law.
Furthermore, the JFBA pays close attention to expected future
revisions of education related laws and regulations. Future
education administration, especially, how the revised Article
2 is implemented in education practice in the classrooms, depends
upon how the School Education Law, the Law concerning Organization
and Management of Local Education Administration, and the government
guidelines for teaching will be revised and upon how a basic
plan on education promotion based on the revised Article 17
will be established. The reason is because these laws directly
stipulate children's rights to learn, therefore adequacy or
rightness of their contents directly affect daily education
practice in the classrooms.
With respect to expected future amendments of education related
laws and regulations, the JFBA will make recommendations based
on the articles on education of the Constitution from a standpoint
of the legal profession whose mission is to protect fundamental
human rights and realize social justice. The JFBA will ceaselessly
endeavor to ensure that the freedom of thought and creed, the
right to receive education and the right to learn are not violated
in education practice in the classrooms.
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