{"id":11795,"date":"2013-07-24T10:37:29","date_gmt":"2013-07-24T20:37:29","guid":{"rendered":"http:\/\/www.debito.org\/?p=11795"},"modified":"2013-07-31T08:41:34","modified_gmt":"2013-07-31T18:41:34","slug":"japan-focus-japans-democracy-at-risk-ldps-10-most-dangerous-proposals-for-constitutional-change-by-lawrence-repeta","status":"publish","type":"post","link":"https:\/\/www.debito.org\/?p=11795","title":{"rendered":"Japan Focus: “Japan\u2019s Democracy at Risk: LDP\u2019s 10 Most Dangerous Proposals for Constitutional Change” by Lawrence Repeta (UPDATED with Aso’s Nazi admiration gaffe)"},"content":{"rendered":"

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Hello Blog. \u00a0Meiji 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. \u00a0A rough draft of this article appeared on Debito.org from a Repeta lecture last May<\/a>; as his lecture notes don’t appear as of this writing to be loading properly, let me put this article up instead. \u00a0Again, frightening stuff, especially from a human-rights perspective. \u00a0And it looks to me like it may come true with PM Abe’s Upper House win last weekend<\/a>. \u00a0Arudou Debito<\/p>\n

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The Asia-Pacific Journal, Vol. 11, Issue 28, No. 3, July 15, 2013.<\/strong>
\n Japan\u2019s Democracy at Risk \u2013 The LDP\u2019s Ten Most Dangerous Proposals for Constitutional Change<\/strong>
\n By Lawrence Repeta, courtesy lots of people<\/strong><\/p>\n

http:\/\/japanfocus.org\/-Lawrence-Repeta\/3969<\/a><\/strong>
\n (excerpt)<\/strong><\/em><\/p>\n

This is a critical moment in Japan\u2019s 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\u2019s political agenda. Abe and his followers are in a good position to continue their push to revise the constitution.<\/em><\/strong><\/p>\n

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\u2019s rulers. It has never been amended. The constitution is the \u201csupreme law\u201d of the land. As we show below, the LDP seeks fundamental change that could have far-reaching effects.<\/em><\/strong><\/p>\n

[…]<\/p>\n

1. Rejecting the universality of human rights<\/em><\/strong><\/p>\n

The LDP proposals start with a thorough rewriting of the Preamble. Several ringing declarations of democratic ideals would disappear: \u201cWe, the Japanese people\u2026.do proclaim that sovereign power resides with the people\u2026\u201d Deleted. \u201cGovernment is a sacred trust of the people\u2026.This is a universal principle of mankind\u2026.\u201d Deleted. \u201c\u2026we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world\u2026\u201d Deleted.<\/em><\/strong><\/p>\n

In place of these ideals, the LDP Preamble would emphasize the strength of the Japanese nation, lauding the people\u2019s pride in their country and their willingness to defend it. It would also express pragmatic goals such as a desire to \u201cpursue friendly relations with all nations under a philosophy of peace\u201d and to promote \u201ceducation, science and technology.\u201d<\/em><\/strong><\/p>\n

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: \u201cJapan is a nation with a long history and unique culture, with a tenn\u014d [Emperor] who is a symbol of the unity of the people\u2026.\u201d (Appendix One presents the full English texts of the present Preamble and the proposed LDP version.)<\/em><\/strong><\/p>\n

Regarding human rights, the LDP Q&A Pamphlet further explains,<\/em><\/strong><\/p>\n

…[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<\/em><\/strong><\/p>\n

This replacement of universal human rights principles with a unique system of rights based on Japan\u2019s \u201chistory, culture and tradition\u201d has profound implications for the people of Japan and for Japan\u2019s 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 \u201cpromoting and encouraging respect for human rights and for fundamental freedoms for all\u201d is one of the UN\u2019s primary purposes. One year after Japan\u2019s Constitution took effect, the UN General Assembly adopted the Universal Declaration of Human Rights as \u201ca common standard of achievement for all peoples and all nations\u2026.\u201d and described its purpose as securing \u201ctheir universal and effective recognition and observance\u2026.\u201d4<\/em><\/strong><\/p>\n

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\u2019s foreign policy.<\/em><\/strong><\/p>\n

What elements of \u201chistory, culture and tradition\u201d should provide the basis for human rights in Japan? The Q&A\u2019s 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.<\/em><\/strong><\/p>\n

2. Elevating maintenance of \u201cpublic order\u201d over all individual rights<\/em><\/strong><\/p>\n

The LDP would revise key language of Article 12 of the Constitution to read that the people \u201cshall be aware that duties and obligations accompany freedoms and rights and shall never violate the public interest and public order.\u2026\u201d<\/em><\/strong><\/p>\n

What are these \u201cduties and obligations\u201d? The LDP doesn\u2019t 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 \u201cfreedoms and rights\u201d would be subordinated to \u201cpublic interest and public order.\u201d \u201cFreedoms and rights\u201d are specified in the present text of the constitution, but the new expression \u201cpublic interest and public order\u201d is undefined. In their Q&A pamphlet, LDP authors explain,<\/em><\/strong><\/p>\n

\u201cPublic order\u201d here is \u201csocial order\u201d (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<\/em><\/strong><\/p>\n

So the LDP target appears to be individuals who \u201cassert human rights\u201d and thereby \u201ccause nuisances to others.\u201d 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 \u201cnuisances\u201d to others. Most democratic societies accept such inconveniences as a necessary cost of freedom, especially for protection of the right to speak out. Japan\u2019s 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…<\/em><\/strong><\/p>\n

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) \u201cpublic interest and public order\u201d would be superior to individual rights.<\/em><\/strong><\/p>\n

3. Eliminating free speech protection for activities \u201cwith the purpose of damaging the public interest or public order, or associating with others for such purposes\u201d<\/em><\/strong><\/p>\n

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 \u201cFreedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.\u201d<\/em><\/strong><\/p>\n

The LDP proposal adds this proviso: \u201cNotwithstanding 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.\u201d<\/em><\/strong><\/p>\n

This change not only strips free speech protection from activities that might have the purpose of damaging the \u201cpublic order,\u201d 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.<\/em><\/strong><\/p>\n

4. Deleting the comprehensive guarantee of all constitutional rights<\/em><\/strong><\/p>\n

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.<\/em><\/strong><\/p>\n

Article 97 of Japan\u2019s Constitution delivers a stirring declaration of the heritage of these rights: \u201cThe 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.\u201d<\/em><\/strong><\/p>\n

The LDP proposes to simply delete these words. The Party provides no explanation for this in its Q&A pamphlet, so we can\u2019t be entirely sure about its motivation…<\/em><\/strong><\/p>\n

– Full article at: http:\/\/japanfocus.org\/-Lawrence-Repeta\/3969<\/a><\/em><\/strong><\/p>\n

ENDS<\/p>\n","protected":false},"excerpt":{"rendered":"

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. 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.<\/p>\n

Repeta: 2. Elevating maintenance of \u201cpublic order\u201d over all individual rights<\/p>\n

The LDP would revise key language of Article 12 of the Constitution to read that the people \u201cshall be aware that duties and obligations accompany freedoms and rights and shall never violate the public interest and public order.\u2026\u201d<\/p>\n

What are these \u201cduties and obligations\u201d? The LDP doesn\u2019t 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 \u201cfreedoms and rights\u201d would be subordinated to \u201cpublic interest and public order.\u201d \u201cFreedoms and rights\u201d are specified in the present text of the constitution, but the new expression \u201cpublic interest and public order\u201d is undefined. In their Q&A pamphlet, LDP authors explain,<\/p>\n

\u201cPublic order\u201d here is \u201csocial order\u201d (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.<\/p>\n

So the LDP target appears to be individuals who \u201cassert human rights\u201d and thereby \u201ccause nuisances to others.\u201d 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 \u201cnuisances\u201d to others. Most democratic societies accept such inconveniences as a necessary cost of freedom, especially for protection of the right to speak out. Japan\u2019s 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.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[36,22,5,4,14],"tags":[],"class_list":["post-11795","post","type-post","status-publish","format-standard","hentry","category-bad-social-science","category-cultural-issue","category-human-rights","category-japanese-government","category-japanese-politics"],"_links":{"self":[{"href":"https:\/\/www.debito.org\/index.php?rest_route=\/wp\/v2\/posts\/11795","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.debito.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.debito.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.debito.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.debito.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11795"}],"version-history":[{"count":0,"href":"https:\/\/www.debito.org\/index.php?rest_route=\/wp\/v2\/posts\/11795\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.debito.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11795"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.debito.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11795"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.debito.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11795"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}