【緊急転載】⑤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9～終)｜Asia Pacific Journal @apjjf (2013.7.15) #憲法改正 #憲法9条

9. Changes to Article Nine

LDP leaders clearly believe that in order to secure a respected place in the community of nations, they must be free to employ the country’s military without the extraordinary restraints imposed by Article 9 of the present Constitution. Throughout the postwar era, debate over constitutional amendment has focused almost exclusively on Article 9.

When U.S. President George W. Bush ordered troops into Iraq in 2003, then-PM Koizumi Jun’ichiro swiftly declared his support for the action. In January 2004, he even ordered a Japanese military force onto Iraqi soil and provided Japanese military aircraft to support U.S. forces in the war zone.

These acts incited various public displays of opposition in Japan. They included the acts of the “Tachikawa Three” described above which led to harsh police action. They also inspired a series of lawsuits seeking court declarations that the PM’s actions violated Article 9.

On April 17, 2008, a panel of the Nagoya High Court (an intermediate appellate court) agreed with a group of these plaintiffs and issued a judgment in which it declared Japan Self-Defense Force activities in the Middle East war zone in violation of Article 9. See Craig Martin’s commentary here and a U.S. Library of Congress report here.

The decision had no legal effect because the court dismissed the case on procedural grounds (lack of standing). Nonetheless, the court’s declaration made the front page of every newspaper in the country and served as a rare judicial shot across the bow of nationalistic politicians eager to join military ventures abroad.

Japan’s “history, tradition and culture” certainly includes a military component and a willingness to dispatch military forces abroad on missions of conquest. Article 9 has been a powerful restraint on this element of Japanese tradition. The LDP seeks a major change.

The next time a Prime Minister wishes to deploy troops abroad, they say, he should not be restrained by constitutional language.　The LDP Constitution would retain the present Constitution’s renunciation of war “as a sovereign right of the nation,” but would make several critical changes,

including new language that would clearly declare that Japan could constitutionally maintain a modern military and that the government could deploy this force at home and abroad when it chose to do so. The LDP’s Article 9 would do away with the “self-defense force” euphemism currently applied to Japan’s military and replace it with “national defense military” (kokubōgun) and would explicitly designate the Prime Minister as “supreme commander” (saikō shikikan).

It would delete the current prohibition on maintaining “land, air and sea forces” and the renunciation of the “right to belligerency.” In the space vacated by these deletions, the LDP would insert a declaration that nothing in this provision would “prevent the exercise of the right to self-defense.”

The LDP’s military would not be limited to a narrow interpretation of “national defense.” A lengthy new provision defining the scope of military action expressly states that the military could participate in “internationally coordinated activities to secure the peace and safety of international society” and “activities to preserve the public order or to protect the lives or freedom of the people.”

Again, we confront the phrase “public order” (oyake no chitsujo). Thus, it appears the LDP military could be used as a domestic police force to put down internal threats to the established order.

As protection against any potential abuse of these powers, all actions of the new military force would be subject to law passed by the Diet. However, the LDP authors make no mention in their Article 9 of how it should mesh with their new Articles 98 and 99, which would grant the Cabinet extraordinary powers in “states of emergency.”

Given the broad definition of this term, it is hard to imagine any circumstance in which the LDP military force might be deployed that would not qualify. Accordingly, in cases where the Prime Minister chose to declare a state of emergency, it appears that at least in the initial stages of a deployment, it would be the Cabinet, not the Diet, with actual authority to decide the scope of military operations.

Whatever one’s position on Article 9, all must recognize that the Japanese people have avoided the suffering of war since it took effect. The LDP’s Article 9 would surely increase the risk of military conflict.

10. Lowering the Bar for Constitutional Amendments

The Prime Minister and his allies have proposed that, before the Diet considers any substantive change to the constitution, it should first relax requirements governing amendment.

Article 96 of the present Constitution requires that amendments be supported by a two-thirds vote of each House of the Diet.

The LDP proposal would change this to require only a simple majority of each House. The present additional requirement of approval by a majority of the voters by referendum would remain unchanged.

Approval by a supermajority vote of the national legislature is a standard requirement in democratic constitutions around the world. The U.S. Constitution, for example, requires that amendments be approved by a two-thirds vote of each House of Congress and, in addition, by three-fourths of the states.

Advocates for such a high standard say that some individual rights – such as the rights to freedom of speech and freedom of religion – are so fundamental to the functioning of a free society and democratic government that they should not be subject to change by majority vote. They fear that public opinion may fluctuate sharply in times of stress and temporary majorities may threaten fundamental rights.

In the words of U.S. constitutional scholar Cass Sunstein, “the goal is to ensure that the deliberative sense of the community will prevail over momentary passions.” Japanese voters recently displayed the potential for “momentary passions” by granting the DPJ a great victory in 2009 and then delivering an equally great victory to its adversary, the LDP, only three years later.

The LDP proposal would empower temporary majorities to sponsor fundamental change. It would expedite any and all constitutional amendments, including the LDP proposals to weaken protection for fundamental human rights.

Final Comments

Prime Minister Abe traveled to Washington for a meeting with President Obama held on February 22. This was the first meeting of the two leaders after Japan’s December elections. The White House transcripts of their statements are cold and brief.

The two leaders expressed only two ideas: the importance of their military alliance in preserving regional security and the need to increase economic growth. There were no statements of shared visions, philosophies or broader dreams for their people.

It’s hard to imagine that a former community organizer and president of the Harvard Law Review15 and a man who has built his career on a campaign to rewrite his nation’s wartime history share common views about the role of government.

If there is any doubt on this score, the LDP revision proposals show that the political leaders of Japan and of the United States and other nations in the western political tradition do not share the same belief in free society and the role of government. Japan’s dominant political party is on a very different track from its Western allies.

The LDP constitutional program includes significant proposals additional to those discussed above. A revision to Article 20, for example, would open the door to direct government participation in Shinto rituals, to the extent that they “do not exceed the boundaries of social rituals or customary acts.”

Article 24 would include a new provision declaring that the family (not the individual) is the “natural and basic unit of society” and creating a constitutional duty for family members to support each other.

A revision to Article 63 would weaken the role of the Diet as a check on the executive branch and as a means to inform the people on matters of national interest by relaxing the requirement that Cabinet ministers appear at the Diet to respond to inquiries.

These and other proposals require additional study. In this article I selected ten that could have an especially big impact on human rights protection. It remains to be seen whether the LDP will be able to push through any or all of their constitutional revision proposals, but there should be no misunderstanding of the Party’s intentions.