【緊急転載】③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5と6)｜Asia Pacific Journal @apjjf (2013.7.15) #憲法改正 #国民の義務

5. Attack on the “individual” as the focus of human rights

The Western heritage of Japan’s Constitution is apparent throughout the document, perhaps most clearly in Article 13, which begins,

“All of the people shall be respected as individuals,” and protects their “right to life, liberty, and the pursuit of happiness.”

These words are a direct quotation from the U.S. Declaration of Independence.

The LDP drafters deleted Article 97, but couldn’t quite bring themselves to delete Article 13’s reference to “life, liberty, and the pursuit of happiness.” But they did insist on changing one especially offensive word: “individual.” (kojin)

In the LDP version, “All persons shall be respected as people.” (hito)

The concept of the autonomous rights-bearing individual is the core of the Western theory of natural rights. Such individuals are anathema to the LDP view of the relationship between people and government.

Immediately following its rejection of universal rights in favor of rights based on “the history, tradition and culture of Japan,” the LDP Q&A pamphlet addresses the western influence on Japan’s Constitution:

“[T]he current Constitution includes some provisions based on the western theory of natural rights. We believe these provisions should be revised.”

Numerous LDP proposals, including the priority accorded to public order, identify the natural rights provisions the LDP wants to change.

The Party’s attack on the status of the individual and on individual rights would certainly result in a reduced constitutional status for Japan’s citizens.

Although they do not call for outright revival of the Meiji Constitution or imperial sovereignty, it appears that Party leaders believe the people should occupy a position closer to that of “subjects” under the Meiji regime.

In place of the rights enjoyed by citizens in a constitutional democracy, subjects are more likely to be obligated to fulfill duties owed to some superior power.

6. New Duties for the People

The doctrine of “constitutionalism” holds that sovereign people adopt constitutions in order to create and empower governments and to impose limits on governmental powers.

This idea of limitations on government power is a tough sell with Japanese powerholders. As explained by one leading constitutional scholar,

“The problem is that the idea of constitutionalism is a foreign concept to us Japanese…. Before we learned the idea from Westerners, we did not know the idea of imposing law on rulers. Law had always come from rulers; obedience to the law had been a virtue of the people; rulers had ruled by law instead of being ruled by law.” (emphasis added)

By declaring protection for a long list of constitutional rights and freedoms, the 1947 Constitution clearly imposes limitations on government power. The LDP proposes to flip this idea on its head. Instead of imposing limitations on government power, the LDP constitution would impose duties on the people.

The first set of new duties would appear right up front, in Article 3. New language would state that “[T]he national flag is the rising sun flag (nishōki) and the national anthem is kimigayo,” and that “[T]he people must respect the national flag and national anthem.”

The flag and anthem are the most inflammatory symbols of the era of Japanese imperialism and war. They are so controversial that when the Diet passed legislation formally recognizing them as Japan’s national symbols in 1999, then-Prime Minister Obuchi and other LDP leaders promised there would be no mandatory duties.

Nonetheless, local governments (led by Ishihara Shintaro’s Tokyo metropolitan government) adopted regulations mandating that public school teachers participate in flag and anthem ceremonies. Many teachers view such ceremonies as a revival of rituals that attended their country’s disastrous age of militarism.

They refused to comply, claiming that the ceremonies caused them grave emotional anguish. They were punished with pay cuts, removals from classrooms and other penalties. (See here for an example of one teacher’s civil disobedience.)

In 2011, Japan’s Supreme Court cut off their constitutional protection by issuing a series of judgments rejecting the teachers’ claims to freedom of conscience guaranteed by Constitution Article 19 and upholding the orders to stand and sing. (See here.)

Tokyo and other local governments have exercised the power to force public school teachers to pay obeisance to these symbols against their will. The LDP’s proposal would take the next step –

it would empower the government to extend flag and anthem duties to the population as a whole. This would include the descendants of Chinese, Korean, Okinawan and other people who bore the most terrible sufferings during Japan’s age of militarism.