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Hello Blog. Meiji University law professor Lawrence Repeta has written up an important article about the probable outcomes and motivations of the specific texts (and subtexts) behind the LDP’s proposed constitutional revisions. A rough draft of this article appeared on Debito.org from a Repeta lecture last May; as his lecture notes don’t appear as of this writing to be loading properly, let me put this article up instead. Again, frightening stuff, especially from a human-rights perspective. And it looks to me like it may come true with PM Abe’s Upper House win last weekend. Arudou Debito
The Asia-Pacific Journal, Vol. 11, Issue 28, No. 3, July 15, 2013.
Japan’s Democracy at Risk – The LDP’s Ten Most Dangerous Proposals for Constitutional Change
By Lawrence Repeta, courtesy lots of people
This is a critical moment in Japan’s history. In parliamentary elections held on Sunday, July 21, the LDP gained thirty seats, giving the Party a total of 115 in the 242-seat Upper House. Following its sweeping victory in December 2012 Lower House elections, this means that together with its coalition partner Komeito, the Party holds secure majorities in both Houses of the Diet. Although the LDP does not control the two-thirds parliamentary majorities required to pass resolutions for constitutional change, it does control Japan’s political agenda. Abe and his followers are in a good position to continue their push to revise the constitution.
Under the present constitution, the Japanese people recovered from the unimaginable suffering of total war and have come to enjoy several generations of peace and prosperity. That constitution has acted as a powerful restraint on the nation’s rulers. It has never been amended. The constitution is the “supreme law” of the land. As we show below, the LDP seeks fundamental change that could have far-reaching effects.
1. Rejecting the universality of human rights
The LDP proposals start with a thorough rewriting of the Preamble. Several ringing declarations of democratic ideals would disappear: “We, the Japanese people….do proclaim that sovereign power resides with the people…” Deleted. “Government is a sacred trust of the people….This is a universal principle of mankind….” Deleted. “…we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world…” Deleted.
In place of these ideals, the LDP Preamble would emphasize the strength of the Japanese nation, lauding the people’s pride in their country and their willingness to defend it. It would also express pragmatic goals such as a desire to “pursue friendly relations with all nations under a philosophy of peace” and to promote “education, science and technology.”
But, in contrast to the universal principles of the present constitution, the overriding theme of the LDP version is that Japan is different from other countries. Thus, the first sentence of the LDP Constitution would read: “Japan is a nation with a long history and unique culture, with a tennō [Emperor] who is a symbol of the unity of the people….” (Appendix One presents the full English texts of the present Preamble and the proposed LDP version.)
Regarding human rights, the LDP Q&A Pamphlet further explains,
…[r]ights are gradually formulated through the history, tradition and culture of each community. Therefore, we believe that the provisions concerning human rights should reflect the history, culture and tradition of Japan.3
This replacement of universal human rights principles with a unique system of rights based on Japan’s “history, culture and tradition” has profound implications for the people of Japan and for Japan’s relations with the world. Recognition of the universal nature of human rights is the fundamental principle that underlies the postwar global human rights regime. The first article of the UN charter proclaims that “promoting and encouraging respect for human rights and for fundamental freedoms for all” is one of the UN’s primary purposes. One year after Japan’s Constitution took effect, the UN General Assembly adopted the Universal Declaration of Human Rights as “a common standard of achievement for all peoples and all nations….” and described its purpose as securing “their universal and effective recognition and observance….”4
The LDP program clearly rejects this global consensus on human rights. Japan has been an important supporter of the UN since it joined in 1956. Denial of the universal nature of human rights would not only have an impact on the Japanese people, but would also mark a major change in Japan’s foreign policy.
What elements of “history, culture and tradition” should provide the basis for human rights in Japan? The Q&A’s authors do not tell us directly, but several proposed changes in constitutional wording and statements in the Q&A pamphlet indicate a clear direction. We will examine some of these proposals below.
2. Elevating maintenance of “public order” over all individual rights
The LDP would revise key language of Article 12 of the Constitution to read that the people “shall be aware that duties and obligations accompany freedoms and rights and shall never violate the public interest and public order.…”
What are these “duties and obligations”? The LDP doesn’t say. Such open-ended language would serve as an invitation to zealous officials eager to identify duties and obligations that may limit or even override individual rights. The most disturbing aspect of this text, however, is that “freedoms and rights” would be subordinated to “public interest and public order.” “Freedoms and rights” are specified in the present text of the constitution, but the new expression “public interest and public order” is undefined. In their Q&A pamphlet, LDP authors explain,
“Public order” here is “social order” (shakai chitsujo); it means peaceful social life (heibon na shakai seikatsu). There is no question that individuals who assert human rights should not cause nuisances to others.5
So the LDP target appears to be individuals who “assert human rights” and thereby “cause nuisances to others.” Although the public order limitation would apply to all constitutional rights, we can expect that it would have an especially powerful chilling effect on speech rights and other forms of protest. Every public march or other political demonstration slows traffic and causes “nuisances” to others. Most democratic societies accept such inconveniences as a necessary cost of freedom, especially for protection of the right to speak out. Japan’s courts have shown little respect for such rights, however, repeatedly ruling in favor of police action to manage public demonstrations and otherwise restrict public speech.6…
Under the LDP plan, the hostile attitude of the police and the courts toward public demonstrations would gain an unshakable foundation in the constitution itself with express language declaring that an undefined (and therefore potentially limitless) “public interest and public order” would be superior to individual rights.
3. Eliminating free speech protection for activities “with the purpose of damaging the public interest or public order, or associating with others for such purposes”
Just in case a future court might overlook the change to Article 12, the LDP would also revise Article 21 of the Constitution, which presently makes the simple, powerful declaration that “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.”
The LDP proposal adds this proviso: “Notwithstanding the foregoing, engaging in activities with the purpose of damaging the public interest or public order, or associating with others for such purposes, shall not be recognized.”
This change not only strips free speech protection from activities that might have the purpose of damaging the “public order,” it would also remove protection from the right of association. So even if I did not go down to the demonstration on that fateful day, if am a member of some citizens group that did, I might be prosecuted, too.
4. Deleting the comprehensive guarantee of all constitutional rights
Widespread recognition of the primacy of human rights as a fundamental condition of civilized society is a relatively recent phenomenon. As noted above, the Universal Declaration of Human Rights was not created until its drafters were driven by recent memories of the most destructive war in human history.
Article 97 of Japan’s Constitution delivers a stirring declaration of the heritage of these rights: “The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.”
The LDP proposes to simply delete these words. The Party provides no explanation for this in its Q&A pamphlet, so we can’t be entirely sure about its motivation…
– Full article at: http://japanfocus.org/-Lawrence-Repeta/3969