【緊急転載】①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1と2)｜Asia Pacific Journal @apjjf (2013.7.15) #憲法改正

Is it time to bring Japan’s postwar experiment in liberal democracy to an end? Prime Minister Abe Shinzo and his followers seem to think so. In April 2012, the LDP published a clear blueprint for constitutional revision that would go a long way toward achieving this goal.

The Liberal Democratic Party has advocated fundamental revision of Japan’s Constitution since its founding in 1955. Nearly seven decades after the end of World War II, LDP leaders remain humiliated by the thought that the country is governed under a constitution largely drafted by a team of foreign military officers.

Abe is working hard to build a coalition with the power to rip the “imposed constitution” out by its philosophical roots. He and his followers, who dominate the LDP, envision an “autonomous constitution” (jishu kenpō) that would radically adjust the balance between government power and individual rights.

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. What exactly do they have in mind?

The LDP plan was spelled out in a comprehensive series of proposals (“nihon koku kenpō kaisei sōan” or “Draft Reform to Japan’s Constitution. Q & A”) published by the Party on April 28, 2012, a date selected to celebrate the 60th anniversary of the end of the Occupation.

Six months later the Party published a pamphlet in user-friendly “Q&A” format to assist readers in working through the dry language of the revision proposals. All of this material is available on the LDP website.2

The LDP revision plan would affect nearly all of the 103 articles of the 1947 Constitution. Most proposals are for minor changes in wording or technical adjustments that would not make a significant difference. But some LDP proposals could have a potentially devastating impact on individual rights protection in Japan. Here are the Ten Most Dangerous Proposals:

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.

(The official English version of the constitution is available here.)

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.

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 (For the full text of the Universal Declaration, go here.)

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.…”

That 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.

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.

Some readers may recall the case of the “Tachikawa Three,” who were detained for 75 days in police jails in 2004 on trespass charges after they placed antiwar flyers in the mailboxes of Japan Self-Defense Force members. See here.

Citing the present constitution’s free speech guarantee, a Tokyo District Court panel ruled the defendants not guilty/ But this judgment was overturned on appeal and the conviction was upheld by the Supreme Court.

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.