【緊急転載】④明大レペタ教授が警告する『 #自民党憲法改正案の最も危険な10の項目 』(その7と8)｜Asia Pacific Journal @apjjf (2013.7.15) #憲法改正 #緊急事態条項

7. Hindering freedom of the press and critics of government by prohibiting the “wrongful acquisition, possession and use of information relating to a person”

The LDP proposes another set of duties through this provision: “No person shall improperly acquire, possess or use information concerning individuals” (proposed Article 19-2).

This language does not create any rights at all. Instead, it imposes new constitutional duties – and the potential application is extremely broad. “Information concerning individuals” is a virtually limitless category, including not only names, photographs, and vital data, but potentially any type of information describing any aspect of specific people.

This duty could be applied to news organizations, bloggers and writers of all kinds, a vast range of businesses and voluntary organizations. All would face the risk that some government authority might interpret their activities as violations of the vague and subjective “improper” standard. Government authorities would enjoy broad latitude in selecting organizations for investigation.

Does this LDP proposal suggest a ban on “improper” surveillance and creation of databases by the police or other government agencies? It doesn’t say anything about the government at all. The prohibition would apply to “any person.”

The new Article 19-2 is reminiscent of the LDP proposal to create a “human rights commission” a little over a decade ago. This proposed body would have been under the direct control of the Ministry of Justice and its primary charge would have been to monitor the acts of private parties, especially the news media, not the acts of government agencies. One provision of that bill would even have prohibited “excessive reporting.”

The wording of this proposal and LDP history on the issue suggests that the true intent is to create a new basis for government regulation of the news media and other writers.

8. Granting the prime minister new power to declare “states of emergency” when the government can suspend ordinary constitutional processes

What should be the powers of government in a national emergency? Under the present constitution, the Diet is “the highest organ of state power” and the “sole law-making organ of the State” (Article 41). In the exercise of executive authority, the prime minister and other officers are responsible to the Diet (Article 66). The LDP proposes to grant power to the Cabinet to put this limitation aside.

Under the LDP’s new Article 98, the Prime Minister would be empowered to declare a national emergency “In the event of armed attacks on the nation from abroad, disturbances of the social order due to internal strife, etc., large-scale natural catastrophes due to earthquakes, etc., or other emergency situations as designated by law…”

This is an extremely broad and undefined range of potential circumstances. What would be the effect of such a declaration?

According to LDP proposed Article 99(1), “the Cabinet may enact Cabinet Orders having the same effect as laws…” (emphasis added) The constitution imposes various conditions on the lawmaking power of the Diet, including general requirements of public proceedings, recording of votes, and passage by majority vote in both Houses. (Chapter IV)

Diet proceedings provide the most important venue for members of opposition parties to express opinion on all issues. There are televised broadcasts of Diet proceedings and news reporters inform the people on the issues and the arguments and counterarguments.

No such rules apply to Cabinet meetings. If a Cabinet Order had “the same effect as law,” the nation could be ruled by secret government for as long as the declaration remained in effect.

The LDP proposal does say that emergency declarations must subsequently be approved by the Diet, but Diet majorities are ordinarily composed of members of the Prime Minister’s own party. Diet members who sought to overturn their leader’s declarations would need the courage of mutineers.

The LDP plan was finalized with fresh experience of a devastating natural and nuclear disaster.

Government actions related to those events have been criticized on many fronts, especially related to the government’s failure to insist on adequate safety measures, its lack of advance preparations to manage and care for evacuees, and, above all, its failure to disclose critical information to affected persons in a timely manner.

None of these problems would be solved by a new constitutional emergency power. To the contrary, if the Cabinet is operating in secret, these problems could be exacerbated.

What about protections for the right to free speech and other fundamental rights during a “state of emergency?” The next sentence in the LDP proposal appears to address this problem by mandating that constitutional provisions “relating to fundamental rights shall be respected to the greatest extent.” (emphasis added) These words may sound reassuring, but recall the LDP proposal for Article 12.

As a general rule, individual rights would be respected only to the extent they do not conflict with “public interest and public order.” Unquestionably, the need to maintain public order would be felt most strongly during a national emergency.

Anyone with the temerity to speak out against government policy at such a time could expect harsh treatment.

Given the lax attitude of Japan’s Supreme Court in protecting individual rights under the existing constitution, which does not subordinate individual rights to the “public interest and public order,” there is little reason to expect the courts to step in if emergency powers were abused.