Comments on New Fundamental Law of Education
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.
Japan Federation of Bar Associations
December 20, 2006