Freedom of Assembly and Association in Japan (Article 21): How Does it Affect Labor Relations and Industry Groups?

Article 21, Section 1 of the Constitution of Japan serves as a comprehensive charter for expressive liberties, declaring: "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed." While freedom of speech and the press often take center stage in public discourse, the intertwined freedoms of assembly (集会の自由, shūkai no jiyū) and association (結社の自由, kessha no jiyū) are equally vital for a functioning democracy and a vibrant civil society. These rights enable individuals to gather for common purposes, form groups to pursue shared interests, and engage in collective action. This article will explore the scope of these constitutional protections in Japan, the manner in which they are balanced against considerations of public order and the rights of others, key judicial interpretations such as the Izumisano Citizens' Hall Case, and their practical implications, particularly in the spheres of labor relations and the activities of industry and trade associations.

The Constitutional Fountainhead: Article 21

The guarantee in Article 21(1) is foundational. Freedom of assembly and freedom of association are not merely standalone rights but are often exercised as crucial means for individuals to collectively voice opinions, advocate for causes, and participate in public life – thereby giving potent effect to freedom of speech itself. The ability to gather with others and to form lasting organizations amplifies individual voices and allows for more effective engagement on social, economic, and political issues.

Freedom of Assembly (集会の自由, shūkai no jiyū)

Freedom of assembly encompasses the right of individuals to gather peacefully for a common purpose. This includes a wide range of activities, from public meetings and discussions to demonstrations, protests, rallies, and processions. It is a cornerstone of political expression, enabling citizens to make their views known to the government and the wider public, and to mobilize for social or political change.

Regulation of Public Assemblies:
While robustly protected, the freedom of assembly is not absolute. It is subject to reasonable restrictions, often concerning the "time, place, and manner" of the assembly, to ensure the maintenance of public order, public safety, the smooth flow of traffic, and the protection of the rights and freedoms of others (e.g., preventing excessive noise that unduly disturbs residents or businesses).

In Japan, public demonstrations and assemblies in public spaces are often regulated by local public safety ordinances (公安条例, kōan jōrei). These ordinances typically require organizers to obtain permits from, or provide prior notification to, local public safety commissions (police authorities). The constitutionality of such ordinances hinges on whether they are narrowly tailored to serve legitimate public safety objectives and whether they avoid granting excessive or arbitrary discretion to the authorities to suppress assemblies based on their content or viewpoint.

Access to Public Facilities for Assemblies: The Izumisano Citizens' Hall Case
A significant Supreme Court of Japan decision addressing the scope of freedom of assembly, particularly concerning access to public facilities, is the Izumisano Citizens' Hall Case (泉佐野市民会館事件, Izumisano Shimin Kaikan Jiken), with the judgment delivered on March 7, 1995.

• Factual Background: A citizens' group, known for its involvement in activities opposing the construction of the Kansai International Airport and which had a history of sometimes confrontational interactions with opposing groups, was denied permission by the city of Izumisano to use a municipal citizens' hall for a meeting. The city's denial was based on a provision in the local ordinance governing the hall's use, which allowed the facility manager to refuse permission if there was a risk of "disturbing public order" (公の秩序をみだすおそれがある場合, ōyake no chitsujo o midasu osore ga aru baai).
• The Supreme Court's Reasoning: The Court engaged in a careful balancing of interests.
  • Importance of Public Facilities for Assembly: It began by recognizing that public facilities like citizens' halls are important venues for citizens to exercise their constitutionally guaranteed freedom of assembly.
  • Limited Grounds for Denial: Consequently, the Court stated that a public facility manager's discretion to deny use is not unfettered. Refusal is generally permissible only in limited circumstances, such as when there are competing applications for the same time slot, or when the proposed use would directly infringe upon other fundamental human rights or demonstrably undermine the public welfare.
  • Strict Interpretation of "Disturbing Public Order": Crucially, the Supreme Court interpreted the ordinance's phrase "disturbing public order" very narrowly. It held that a mere abstract possibility or likelihood of a dangerous situation arising is insufficient to justify denying use of the facility. For a denial to be constitutionally permissible on this ground, there must be a "clear and imminent danger" (明らかな差し迫った危険の発生が具体的に予見される, akirakana sashisematta kiken no hassei ga gutaiteki ni yoken sareru) of serious harm to persons or property. This danger must be concretely and objectively foreseeable based on specific evidence, not merely a subjective apprehension or dislike of the group by the authorities. Furthermore, it should be a danger that cannot be adequately prevented by less restrictive means, such as the deployment of police to maintain order.
  • The "Heckler's Veto" Consideration (敵意ある聴衆の理論, tekii aru chōshū no riron): The Court explicitly addressed the "heckler's veto" problem – the idea that an assembly might be suppressed simply because others who oppose its message threaten to cause disruption. The Court stated that denying facility use to a group that intends to hold a peaceful assembly merely because other hostile groups might attempt to disrupt it would be contrary to the spirit of Article 21. However, the Court distinguished the specific facts of the Izumisano case. It noted that the applicant group itself had a documented history of engaging in disruptive and sometimes violent confrontations with opposing factions. Based on this evidence, the Court found that in this particular instance, there was a concrete and foreseeable danger of disorder arising not just from potential hecklers, but from the potential for the applicant group itself to be involved in violent clashes, given its past conduct and the nature of the planned meeting. Thus, while affirming the principle against a heckler's veto, the Court found the city's denial in this specific case to be justified based on objective evidence of imminent danger linked to the applicant group's own characteristics and history.
  • Heightened Scrutiny for Spiritual Freedoms: The Court also reiterated an important general principle: restrictions on "spiritual freedoms" (精神的自由, seishinteki jiyū), such as freedom of assembly, must be subjected to stricter scrutiny than restrictions on "economic freedoms" (経済的自由, keizaiteki jiyū). This implies a less deferential stance towards governmental justifications for limiting expressive activities.

The Izumisano Citizens' Hall Case is significant for establishing a high constitutional threshold for restricting access to public facilities for assemblies, demanding a clear and imminent danger of serious harm. It also demonstrates the Court's nuanced approach, protecting peaceful assemblies from suppression due to hostile audiences, while also recognizing that a group's own propensity for violence or disorder can be a legitimate factor in risk assessment by authorities.

Freedom of Collective Action (集団行動の自由, shūdan kōdō no jiyū): This concept is closely related to freedom of assembly and is particularly relevant in the context of public demonstrations, protests, and labor activities such as strikes, picketing, and boycotts. The right of workers to engage in collective action is also specifically affirmed in Article 28 of the Constitution, which guarantees labor rights.

Freedom of Association (結社の自由, kessha no jiyū)

Freedom of association is the right of individuals to voluntarily come together and form groups, clubs, organizations, or other associations to pursue common interests or purposes, as well as the right to join existing associations. This freedom also generally implies a "negative" aspect – the freedom not to associate, meaning individuals cannot typically be compelled by the state to join an association against their will.

Importance and Scope:
This freedom is essential for a pluralistic society. It enables individuals to:

• Pursue a wide range of shared interests – political, economic, social, cultural, religious, academic, or recreational.
• Advocate collectively for causes and policies.
• Exert collective influence in public affairs.
• Provide mutual support and engage in cooperative activities.

Types of Associations:
Freedom of association protects the formation and operation of diverse entities, including:

• Political parties.
• Labor unions (whose rights are also specifically reinforced by Article 28).
• Business, industry, and professional associations.
• Non-profit organizations (NPOs) and non-governmental organizations (NGOs) dedicated to various social causes.
• Social clubs, cultural societies, academic groups, and community organizations.

Regulation of Associations:
While the freedom to form associations is broadly guaranteed, the activities of these associations, like the actions of individuals, are subject to the general laws of the land.

• Associations that engage in illegal activities (e.g., criminal conspiracies, terrorist acts) or whose stated purposes or methods are fundamentally contrary to public order and safety can be subject to state intervention, including, in extreme cases, orders for dissolution. The Aum Shinrikyo Dissolution Order Case (Supreme Court, January 20, 1996), which upheld the dissolution of a religious organization responsible for heinous crimes, illustrates this principle, though the primary legal basis was often the Religious Corporations Act coupled with considerations of public safety.
• The state cannot, however, arbitrarily dissolve lawful associations or prohibit their formation based merely on disagreement with their views or objectives.

Implications for Businesses and the Workplace

The constitutional guarantees of freedom of assembly and association have several tangible implications for the business environment, particularly concerning labor relations, employee activities, and the organization of business interests.

1. Labor Relations and the Role of Labor Unions:
   • Article 21's freedom of association, read in conjunction with Article 28 ("The right of workers to organize and to bargain and act collectively is guaranteed"), provides a strong constitutional foundation for the formation, existence, and activities of labor unions.
   • Employers in Japan are obligated to respect the rights of their employees to form, join, or assist labor unions, and to engage in collective bargaining with duly established unions over wages, working hours, and other terms and conditions of employment.
   • Union activities, such as organizing campaigns, collective bargaining sessions, and, in some circumstances, lawful industrial actions (e.g., strikes, picketing), are protected. However, these activities must be conducted in accordance with the procedures and limitations set out in specific labor laws, such as the Trade Union Act. For instance, acts of violence or certain types of sabotage during labor disputes are not protected.
   • Any attempts by employers to unlawfully interfere with union formation (e.g., by dismissing employees for union organizing), to refuse to bargain in good faith with a representative union, or to discriminate against employees based on their union membership would likely constitute unfair labor practices and violate these constitutional and statutory rights.
2. Employee Activism and Informal Groups:
   • Beyond formal unionization, employees may also exercise their freedom of association by forming informal groups or caucuses within the workplace to discuss common concerns, advocate for improvements in working conditions, or promote specific interests (e.g., diversity and inclusion initiatives, environmental sustainability within the company).
   • While these informal groups may not possess the same statutory collective bargaining rights as formally recognized labor unions, their right to associate and peacefully express their views is generally protected under Article 21. Employer responses to such employee activism must be carefully calibrated to avoid actions that could be construed as infringing on these associational rights, provided the employees' activities do not unduly disrupt essential business operations or violate reasonable and consistently applied workplace policies based on legitimate business needs.
3. Formation and Operation of Industry and Trade Associations:
   • Businesses themselves possess the freedom to associate by forming and joining industry-specific associations, trade groups, chambers of commerce, and other collective bodies. These associations serve various important functions, including:
     • Advocating for the common interests of their members before governmental bodies (lobbying).
     • Developing voluntary industry standards and codes of conduct.
     • Sharing information and best practices among members.
     • Promoting the industry or sector to the public and potential investors.
   • The freedom of these business associations to operate and pursue their objectives is protected. However, their activities must remain within the bounds of other applicable laws, most notably antitrust and fair competition laws. Collusive practices such as price-fixing, bid-rigging, or market allocation agreements among members of an industry association are illegal and subject to severe penalties.
4. Corporate Political Engagement and Lobbying:
   • While corporations are legal rather than natural persons, they (often acting through their executives or industry associations) frequently engage in political advocacy and lobbying efforts to influence legislation and public policy relevant to their interests. The extent to which corporate "speech" and "association" for political purposes receive direct protection under Article 21 is a complex legal question with ongoing debate. However, collective advocacy by business groups is a well-established and accepted feature of the policy-making process in Japan.
5. Shareholder Associations and Activism:
   • Shareholders, as owners of a company, also have the right to associate with one another to discuss corporate governance, propose resolutions, and collectively exert influence on company management. Shareholder activism, whether through formally constituted shareholder associations or more informal coordinated efforts, is a manifestation of this freedom of association.
6. Access to Company Facilities for Meetings:
   • While the Izumisano Citizens' Hall Case dealt specifically with access to public facilities, the underlying principles of balancing expressive and associational rights with property rights and legitimate operational needs can offer some analogous considerations in the private sector. For instance, if employee groups or labor unions seek to use company premises (e.g., meeting rooms, cafeterias) for organizational or informational meetings, companies generally have significant discretion over the use of their private property. However, this discretion may be qualified by specific provisions in labor laws or collective bargaining agreements that grant recognized unions certain rights of access for legitimate union activities, provided these do not unduly interfere with business operations.

Conclusion: Balancing Liberties and Order

Article 21 of the Japanese Constitution provides vital and intertwined protections for freedom of assembly and association. These freedoms are indispensable for a participatory democracy, allowing individuals and groups to collectively express views, pursue common goals, and organize for mutual benefit or advocacy. The Supreme Court of Japan, as demonstrated in key cases like the Izumisano Citizens' Hall Case, has affirmed the importance of these rights and has set appropriately high standards for justifying governmental restrictions, particularly on assemblies, requiring a "clear and imminent danger" to public order before access to public fora can be legitimately denied. The Court has also shown sensitivity to preventing the suppression of expression through a "heckler's veto."

These constitutional freedoms have profound and practical implications in the business context. They form the bedrock for the rights of workers to organize into labor unions, engage in collective bargaining, and participate in lawful collective actions. They also underpin the ability of businesses themselves to form industry associations and engage in collective advocacy. While robust, these freedoms, like all others, are not absolute and must be balanced against the legitimate needs to maintain public order, protect public safety, and respect the rights and freedoms of others. For businesses, navigating this landscape means respecting the associational rights of their employees within the framework of applicable labor laws, while also ensuring that the activities of any groups with which they are involved (including their own industry associations) are conducted lawfully and ethically.