Activism without constitutional argument: the doctrine of the
abuse of discretionThe Supreme Court has developed another method of protecting constitutional
rights that employs the doctrine of the abuse of discretion.^43 For instance, in the
Jehovah’s Witness Kendo Refusalcase,^44 the court held that a public high school
should not be allowed to expel a student who refused to participate in the practice
of kendo – Japanese-style fencing – because of his religious beliefs. This case
concerned a public-school student who, as a Jehovah’s Witness, deemed taking
part in the practice of kendo as a combative sport as essentially irreconcilable with
his religious faith. He informed the school of his religious reasons for refusing to
engage in kendo and requested that he be given alternative activities such as writing
reports instead. However, since kendo practice, considered an essential core of the
health and physical education program, was a compulsory subject at that school,
the student was refused advancement and ultimately expelled for persisting with his
refusal.
The court held that the decision of the school was “unlawful beyond the scope of
discretionary authority” of the school.
45
Japanese textbooks on constitutional law
once referred to this case in relation to the issue of freedom of religion, and
considered it a rare example of the Supreme Court actually protecting religious
rights.
Again, however, this characterization is half right and half misleading. On the
one hand, it is true that the court finally protected freedom of religion by deciding
in favor of the student in this case. On the other hand, it is somewhat misleading to
refer to this case as a “constitutional” one. First, the court held the school’s action
“unlawful” rather than “unconstitutional.” The case was dealt with by the Supreme
Court not as a case of constitutional law, but as one of administrative law.
Secondly, it is very difficult to find many compelling constitutional arguments in
this judgment. We can find them only twice. The decision refers to freedom of
religion in the context of the court ruling that “the said dispositions could not be
said to directly restrict the freedom of religion.”^46 The decision also refers to the
separation of religion and state in the context of the court rebutting the school’s
argument that taking alternative measures is against Article 20 , paragraph 3 , of the
Constitution, which prescribes the separation of religion and state. The court held:
the Court does not believe that, in the case of a student who is not able
to participate in kendo practice for valid reasons of religious faith, the
action of offering alternative activities such as requiring the relevant
student to take part in alternative physical training activities...has
religious implications in its purpose, or has the effect of supporting,
(^43) Matsui,The Constitution of Japan,p. 149.
(^4450) Minshu 469 (Sup. Ct. G.B., March 8 , 1996 ). (^45) Ibid.,p. 480. (^46) Ibid.,p. 478.