Japan's Slow March Back to State Control

Japan's Slow March Back to State Control
AP/達志影像
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Japan’s constitutional revision debate masks silent state control, writes Toshiya Takahashi.

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Japan’s current constitutional revision debate is a silent challenge against freedoms espoused by the 1947 constitution. While Prime Minister Shinzo Abe has set aside revision of the controversial Article 9 peace clause for the moment, his administration’s inclination towards state control of civil liberties will shadow any future revision process.

The 1947 constitution, brought into effect after World War II, successfully democratized Japan. It stipulates a wide range of human rights and institutionalizes democratic governance while abolishing pre-war authoritarian legacies. The three principles of the constitution — people’s sovereignty, human rights and the renunciation of war — originated from the Supreme Commander for the Allied Powers, which was the de facto occupation force. Despite this, the majority of Japanese political elites as well as the public accepted the new constitution.

Meanwhile, conservative groups who supported Japan’s pre-war regime worried about democratization and demilitarization. They have sometimes criticized the constitution in its 70 years for limits on remilitarisation laid out in Article 9 and little mention of duties to the state. Yet a formal process exploring constitutional revision did not take place in the Diet until the end of the 1990s.

In the early 2000s, various political groups proposed drafts for a new constitution. Among them, the Liberal Democratic Party (LDP) sought to increase state control of liberties and to weaken pacifist constraints on the use of force. The LDP emphasized public responsibilities to the state, while direct restrictions on human rights were not mentioned. Although there was no consensus on the possible contents of a new constitution, Abe’s first government (2006–2007) enacted a national referendum law for constitutional revision in 2007. His resignation later that year halted the campaign.

In Abe’s second (current) term, his government emerged with a strong ideological commitment to constitutional revision. Abe believes that state control of civil liberties like free speech and public respect for the state are crucial for the creation of a ‘new Japan’. The 2012 LDP draft for a revised constitution included not only the resurrection of pre-war nationalistic ideas in the preamble, but also increased state control of liberties in the name of national security.

Abe won the 2016 upper house national election and thus obtained a two-thirds majority in both houses with coalition party Komeito and other pro-Abe groups. With this majority, Abe can start Diet processes for constitutional revision. Article 96 stipulates that any proposed changes to the constitution would then require a national referendum. This would mark the first revision of the constitution in the document’s 70-year history.

Defying pro-revisionist expectations, Abe was cautious about pushing the LDP draft too strongly. He replaced the nationalist, revisionist chairman of the Commission on the Constitution in the House of Representatives, Okiharu Yasukoa, with Eisuke Mori, who is not an active proponent of the nationalistic LDP draft. Article 9 and the contents of the preamble, the two most contentious sections, are excluded from revision priorities.

Issues up for debate in the Commission this year include election reform, the revision of conditions for dissolution of the Diet, the relationship between the central and local governments and suspension of the constitution in national emergencies. LDP leaders believe that these issues can win wider support from other parties.

Despite this moderate mood, the LDP’s desire for strong state control underlies its argument for the suspension of the constitution in national emergencies. In natural disasters, war or other similar crises, the LDP view is that private properties should be able to be commandeered and freedom of speech restricted for public order or national security purposes. In the LDP’s draft constitution, this suspension would be allowed by administrative orders from the executive.

Leftists will oppose this restriction based on pre-war Japan’s record of state violations of human rights, but the LDP will maintain its national security and public benefit argument.

At this stage, the consequences of such a change are hard to determine, but Abe’s stance on the state and civil liberties will show his true colors. His government’s strong commitment to the enactment of the "conspiracy bill" and his and his wife’s support for a controversial, imperialist-leaning private school in Osaka have gone some way towards that. Abe’s present moderate posturing on constitutional revision only hides his nationalistic enthusiasm for revision for now.

Japan’s written constitution is the country’s highest authority, and even slight changes will have serious consequences for the government’s relationship with the public. The issues subject to constitutional revision may be dealt with by statute, but Japanese political elites including Abe are excessively inclined to seek constitutional revision based on their own ideals. The unintended or unspoken legal consequences could lead to the violation of human rights.

In liberal democracies, the constitution should stand for protection of civil liberties first, not the authority of the state. Japan’s political elites may have lost sight of this basic characteristic of their own constitution.

The News Lens has been authorized to republish this article from East Asia Forum. East Asia Forum is a platform for analysis and research on politics, economics, business, law, security, international relations and society relevant to public policy, centered on the Asia Pacific region.

TNL Editor: Edward White