To be clear, the title of this column is not a rhetorical question intended to imply the answer “No.” Prime Minister Shinzo Abe and his fellow Liberal Democratic Party retro-nauts want to change the Constitution, so clearly it means something, just as it probably means something to millions of Japanese people who just endured the annual Golden Week 14-kilometer traffic jam, Constitution Day (May 3) being a national holiday. But what?
Last week the charter celebrated its 69th birthday in the usual way: by being largely ignored at celebrations held in its honor. One of the fascinating things about Japan’s Constitution is the ability of people to discuss it reverentially without getting into what it actually says. Sort of like the way some people approach the Bible.
The first week of May was “Constitution Week.” The Tokyo government celebrated it with an event pairing a screening of “The Finishers” — a French movie about a father and his wheelchair-bound son doing an Iron Man triathlon — with a speech by a former Olympian Japanese politician about raising a disabled child. The same week, courts around the nation held events along the theme of “See the inside of a court/Experience a trial!” Such events are related to the Constitution, of course, in the same way Microsoft products are related to you reading this column, but that connection alone doesn’t make this a column about Microsoft.
You see, to talk of amending the Constitution means to talk of taking the words of a legal text and changing them to different words. It should therefore be possible to articulate what is wrong with the old text — problems it has caused in the past — and how those deficiencies will be remedied by new, different language. In that sense, the current charter is easy to explain in the context of when it was written: Almost every article is a refutation or modification of the prewar Meiji Constitution and/or the sociopolitical system it represented. By contrast, when conservatives talk of amending the Constitution now, the textual aspects of doing so are rarely mentioned.
Is the charter worth amending?
In 2012 the LDP proposed a suite of constitutional amendments together with a Q&A brochure explaining at least some of the wording changes. What is interesting about many of their proposed amendments, however, is that they would merely make the Constitution consistent with the way it is already interpreted. The LDP would make the Emperor head of state, but this is already the case for all intents and purposes, and he is described as such in the CIA World Fact Book. Similarly, the LDP would limit the rights of public servants to strike and engage in collective bargaining, but those limitations already apply. And so forth.
So, “Does the Constitution have enough meaning to even bother amending?” is a question that might be worth a bit more discussion. This is particularly true now that the one constitutional provision a majority of Japanese probably agree should reflect political realities — Article 9, with its seemingly absolute prohibition on having and using military force — was in 2014 shown to be capable of dramatic interpretive amendment by Cabinet resolution. Just last month, Yusuke Yokobatake, director general of the Cabinet Legislation Bureau (which provides Constitutional advice to the Cabinet), opined that the Constitution did not prohibit Japan from using nuclear weapons, so apparently anything goes now, regardless of whatever bothersome words are actually used to formulate Article 9.
One might be tempted to seek meaning in the extensive panoply of fundamental human rights purportedly guaranteed by Chapter 3 of the Constitution. On this point it is worth noting that last year, the Justice Ministry’s Human Rights Bureau managed to submit to the Diet a 118-page report on human rights that refers to the Constitution in exactly three places.
Moreover, it is probably also not a coincidence that the LDP, which has been the ruling party for most of the postwar period, (a) rejects supposedly “Western” natural-law-based conceptions of human rights, and (b) leaves the judiciary largely untouched in its proposed amendments. This is likely because, when presented with the opportunity to interpret the provisions of Chapter 3 in disputes between Japanese people and their government, the Supreme Court has in almost every instance either avoided the constitutional issue entirely, or sided in favor of government curbs on constitutional rights, usually on grounds of public welfare and legislative discretion. One might thus reasonably question the degree to which courts have given meaning to constitutional text, other than as a form of literary criticism that has little or no impact on the lives of anyone not studying for the bar.
Granted, some of the rights in Chapter 3 are so broad or abstract that they are considered incapable of judicial relief. These provisions are given meaning by various theories holding them to be mandates to the legislative and executive branches to make and implement laws and policies consistent with them. Personally, I suspect such views to be what constitutional scholars use to reassure each other that the Constitution means more than it actually does.
If abstract constitutional principles were truly functioning as legislative mandates, that would be reflected in actual legislation. Article 1 of most Japanese statutes sets forth the purpose of the rules that follow, but based on my own initial keyword-based search of Japan’s roughly 2,000 statutes currently in force, the number that reference the Constitution in their purpose clause comes in at a couple dozen. (Oddly, one is the Basic Space Act, so whether or not the Constitution has meaning in Japan, we can take comfort in knowing that it is apparently intended to on Neptune.)
Obviously, many mundane statutes have nothing to do with constitutional principles, but, for example, the Act for the Elimination of Discrimination against the Disabled, which came into force last month (and likely related to the themes of the Constitution Week events described above), clearly seems rooted in “equal protection” and other constitutional principles. However, it doesn’t mention the charter at all.
What we don’t know can’t help us
So again, if the laws prepared by Japanese legislators and bureaucrats don’t evidence an awareness of the Constitution, do the abstract human-rights provisions — or any other provisions — of the Constitution actually mean anything? After all, once a constitutional provision is deemed abstract, nonjusticeable and thus textually unimportant, it becomes unessential. In fact, nothing about the Meiji Constitution would have prevented the Diet from passing exactly the same antidiscrimination law or any of the social welfare legislation that is blithely attributed to the current charter.
To be fair, Article 1 of the anti-discrimination law does mention “fundamental human rights,” which suggests a constitutional genesis. But as the Justice Ministry report referenced above illustrates, the process of de-linking human rights from clearly defined textual sources like the Constitution is already well under way. This was nicely demonstrated by an anti-graffiti sign I saw a couple of years ago in a bathroom at Kyoto Station. Posted by the local Legal Affairs Bureau (a Justice affiliate), it cautioned that offensive graffiti violated the fundamental human rights guaranteed by the Constitution.
The reason behind this patently farcical interpretation of the nation’s charter by people who should know better is no great mystery. If governmental authorities take the lead in defining the Constitution and human rights, with little or no judicial second-guessing, the inevitable result will be an anti-Constitution, the means by which those authorities tell people what to do, a Bible-like text whose provenance is unassailable. So long as the people do not delve into what it actually says or are convinced of their inability to comprehend it unaided, that is.
Since the Justice Ministry oversees most of the apparatus traditionally associated with potential human rights abuses (criminal trials, prisons and other detention facilities), a family registry that literally embeds discrimination into the legal system, and an asylum regime famously unwelcoming of people fleeing human rights abuses elsewhere, it is only natural that its Human Rights Bureau characterizes human rights the way it does: with government actors removed from the scope of potential infringers, and the Japanese people themselves left to fill that role. Well-intentioned officials can then take to the task of educating the people accordingly. This being how much official discourse on constitutional and human rights already works in Japan, why do the people in power need to bother with changing the Constitution?
One answer is ideology. To Abe, constitutional change represents the final restoration of sovereignty after defeat and occupation by the Americans. The LDP’s proposed amendments were announced on April 28, 2012, the 60th anniversary of the Treaty of San Francisco, which ended the U.S. Occupation in 1952. Given all the things of American provenance that the charter contains and which subsequent rulers would have preferred it didn’t, small wonder they have taken a passive-aggressive approach to the Constitution and what it means ever since.
A constitution to shape Japanese
So does the Japanese Constitution mean anything? In my view it does, in the form of one right — possibly the most important right — that is not mentioned in the text: the right to be left alone. No matter how accommodating the courts have been in limiting the impact of the words it does contain, the Constitution still lacks language clearly empowering the government to force people to do things like pay their NHK fees, attend PTA meetings, salute flags, care for aging parents, sing anthems and pick up garbage for the local chōnaikai (residents’ association). You see, what I think really drives grass-roots support for constitutional amendment is conservative busybodies and their hatred of the freedom of their fellow countrymen to be inadequately “Japanese.”
This is not idle speculation, either: As a subscriber to Nihon no Ibuki (“Breath of Japan”), the newsletter of the ultra-conservative Japan Conference (Nippon Kaigi), I am repeatedly exposed to right-wing hatred of “excessive” (i.e., other people’s) freedoms — freedoms attributed to the Constitution. In the July 2015 issue, conservative doyen Yoshiko Sakurai rails on the charter for enabling children to stay up late, sleep in and skip breakfast. Journalist Tamao Hosokawa links parents who skip PTA meetings to the Constitution’s excessive focus on individual rights and lack of attention to duties. Really.
Constitutional amendment may thus actually be about the important business of telling Japanese people how to be Japanese. If you accept my view of how constitutional rights are already being converted into a government tool for telling the Japanese people how to behave, whatever new constitutional rights the LDP wants to add to it (environmental rights and privacy rights, to name a couple) are as potentially sinister as the envisioned new duties, one of which would be a duty to respect the Constitution itself. Don’t worry: The government will surely help you comply with that one. Whatever it ends up meaning.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land appears on the second Monday Community Page of the month. Comments and ideas: firstname.lastname@example.org
Special offer for JT readers! I experienced just how little interest there is in Japan’s Constitution when I tried to buy a poster of it to hang on the wall of my law school. There is no commercially available version, so I ended up designing one myself. If you would like a small version of the resulting posters of the English and Japanese versions of the Constitution, send a self-addressed B4-size envelope to my attention at: Doshisha Law School, Kamidachiuri-sagaru, Karasuma-dori, Kamigyo-ku, Kyoto 602-0023. Please affix ¥140 in postage (Japan only; supplies are limited). (Colin P.A. Jones)
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