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Constitutional revision may bring less freedom

by Michael Hoffman

Article 18 of Japan’s Constitution states, “No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited.”

And Article 97 declares, “The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.”

Nothing controversial here, merely language and sentiments characteristic of a free society. Why, wonders Shukan Post magazine, would these two articles be missing from the preliminary draft of a revised Constitution issued by the Liberal Democratic Party last April? Would a new Constitution make Japan less free?

In April the LDP was in opposition. Now it leads a government with a comfortable Lower House majority and stellar public support ratings — 66 percent as of two weeks ago. Japan’s current Constitution, in effect since 1947, was crafted under the supervision of an occupying power. Many of its critics acknowledge its merits but resent it as “imposed,” as being more American than Japanese. Talk of amending or replacing it has been around since the Occupation ended in 1952. The LDP has advocated revision since its founding in 1955. Somehow it never happened. In 65 years not a single amendment has passed.

That could change. Prime Minister Shinzo Abe, whose 2006 book “Utsukushii Kuni e” (“Toward a Beautiful Country”) is a proud declaration of his conservative nationalism and his reverence for the Emperor, has made Constitutional change part of his program. He has described the Constitution as it stands as “disgraceful.” He has spoken of easing the amendment process, reducing the required two-thirds approval in the Diet to a simple majority.

Where is Japan under Abe and a resurgent LDP heading?

Shukan Post quotes two contrasting arguments. The first is from LDP Diet rep Satsuki Katayama, who helped write the April draft revision. He says, “Protecting fundamental human rights means protecting them against those who would violate them. The entity in a position to do that is the state. The present Constitution is excessively negative toward the state. Our thinking is that the state must be given a more active role.”

The opposing view is from Kyushu University constitutional scholar Fumio Saito, who maintains, “Constitutions exist in order to limit the power of the state and guarantee the people’s rights and freedoms. Historically speaking, popular revolutions arose in Europe in the midst of absolute monarchies, winning for the people rights and freedoms they had not enjoyed before. Constitutions protected the rights and freedoms thus obtained while limiting state power. That’s what Constitutionalism is. But the LDP’s draft revisions … tend to loosen restrictions on the state while limiting popular freedoms and rights.”

Katayama, the LDP rep, goes on to take issue with the notion of human rights being “a gift of nature.” In his view they are rather a gift from the state. It sounds like an arcane distinction but is in fact fundamental. If natural — the general Western belief — human rights exist regardless of the state, to be seized violently should the state exceed its legitimate authority. If not natural, the state is the source of rights and is accordingly entitled to more deference and respect than the Western tradition recognizes.

This helps explain a new article the LDP draft proposal would include in its revised Constitution: “All citizens must respect this Constitution.”

How would “respect” be defined? Would exercising freedom of speech to criticize compulsory respect constitute criminal disrespect? Japanese history gives no assurance it would not. Saito, the constitutional scholar, speaks of Western constitutions protecting rights and freedoms won by revolution, but Japan’s history took a different course. The “age-old struggle of man to be free” celebrated in Article 97 is not a dominant theme in it. Japan’s first constitution, promulgated in 1890, represented not a people’s victory over an overbearing state but a gift from a divine Emperor to his grateful subjects.

Abe, in “Toward a Beautiful Country,” says of the imperial line that “its long continuity over more than 1,000 years is nothing short of miraculous” and “fundamental to the national character.” That’s something that as a Japanese he is entitled to feel, but it suggests that a new Constitution issued by his government would hark back to a time when individual rights and freedoms counted for little. Whether that’s too high a price to pay for release from an “imposed” Constitution that guarantees rights and freedoms more or less taken for granted today is for the people of Japan to decide.

But one function of leadership is shaping, not merely following, public opinion, and the line between shaping and manipulating is a fine one. Abe’s prime public justification to date for Constitutional revision has been the supposed need to alter the famous Article 9, under which “the Japanese people forever renounce war as a sovereign right of the nation.” Is that anachronistic, given the dangerous neighborhood Japan lives in and the modern threats — look no further than the recent Algerian hostage crisis — that beset the world? Abe has argued that it is, and that the Self-Defense Forces should become a National Defense Force, with all the expanded rights to use force that the name change implies. An upset and nervous population might well follow him down that road, accepting, perhaps only to regret it later, that a Constitutionally weakened state and Constitutionally protected individual freedoms are no less anachronistic than Constitutional pacifism.