Since the Upper House election campaign kicked into gear on June 22, the ruling bloc has been fighting to draw voters’ attention away from its goal of constitutional amendment and toward the economy.
The ruling coalition claims that the time is not right to discuss a revision, but many people are unconvinced, as the Liberal Democratic Party has already signaled its post-election plans for amending the nation’s charter. Rather than targeting the Constitution’s pacifist Article 9, it seems the LDP will focus instead on an emergency powers amendment, a prospect that has alarmed legal experts.
LDP Vice President Masahiko Komura said Tuesday the Diet should begin deliberating to decide which constitutional provisions should be revised at the extraordinary Diet session to be held after Sunday’s Upper House election.
He also said there will be no chance to amend the document’s war-renouncing Article 9, even if the pro-revision forces win a two-thirds majority. Instead, he said, the priority could be to introduce a so-called emergency situation clause.
The clause was included in the LDP’s draft constitution released in 2012, following the March 11, 2011, earthquake, tsunami and nuclear disaster that hit the Tohoku region. Some LDP members and other conservatives argue the Constitution should grant much more authority to the country’s leader in the event of severe natural disasters.
Yet constitutional lawyers warn that such a clause, which would give the prime minister unchecked and unlimited power, could pave the way for a potential dictatorship and the violation of basic human rights.
“I do not think the LDP’s draft constitution is something lawyers prepared after thorough deliberation,” said Kunio Hamada, a former Supreme Court justice, in an interview. “This clause has no mechanism to keep the government in check.”
Under the LDP’s draft constitution, Articles 98 and 99 would allow the prime minister to declare an emergency with Cabinet approval if the country is attacked, has a domestic insurgency or experiences severe natural disasters such as earthquakes.
The clause would allow the Cabinet to issue orders that have the legal authority of state laws but without being subject to deliberations or a vote. Under such circumstances the prime minister can also draft a necessary budget, essentially bypassing all parliamentary procedures.
The draft clause would also require the public to obey government orders issued to protect lives and assets, even at the cost of basic human rights or property rights.
“It is important that the Constitution clarify what the government and people must do in times of emergencies such as large-scale natural disasters, in order to protect the safety of the citizens,” Prime Minister Shinzo Abe, the LDP’s president, said when asked about the need to discuss the emergency clause during a House of Councilors Budget Committee meeting last November.
It’s no secret that Abe’s ultimate goal is to amend Article 9, but the public is still deeply divided over revising this pillar of the top law. Experts say this is why Abe and the LDP are pushing the emergency situation clause now, to build momentum for their target of constitutional revision.
“This clause is a test case to reduce negative reactions to the revision of Article 9,” said Hamada, 80, who testified at an Upper House public hearing last year that the nation’s contentious security legislation, pushed through by Abe in September, was unconstitutional.
In fact, the envisioned emergency clause has broad support among lawmakers, unlike the push to revise Article 9 or Article 96.
Amendments to the Constitution, however, can only happen after a national referendum on the issue, which in turn must be preceded by the votes of two-thirds of the lawmakers in both houses of the Diet.
The ruling LDP-Komeito bloc and the opposition parties, except for the Japanese Communist Party, agreed at the Diet Constitution Committee in 2014 that some kind of emergency clause was necessary, but some experts remain cautious.
The old Meiji Constitution also had a section on national emergency authority. It, too, allowed the government to issue orders in the name of the Emperor, and to form budgets outside the parliamentary process. The Meiji government could also declare martial law and place legislative, administrative and judicial authority in the hands of the military.
The LDP has said its envisioned clause is completely different from that of the Meiji Constitution, claiming it grants no authority to declare martial law.
But even Nihon University constitutional professor Akira Momochi, a prominent supporter of the clause, agrees the LDP’s draft is too loosely defined.
“We need an emergency clause not for severe earthquakes like those that hit Kumamoto (in April), but for ones that cripple metropolitan areas,” said Momochi. “The draft should more narrowly define emergency situations and how they can be handled.”
Momochi said there must be a framework backed by the Constitution so that the government can properly take charge of disaster management.
Japan presently has numerous laws to cope with extreme disasters.
For example, under the Disaster Countermeasures Basic Act, the government can declare an emergency situation and issue orders when the Diet is not in session. The orders include controlling distribution of daily necessities, setting upper limits on the price of goods, delaying debt payments, and receiving foreign rescue support and aid.
When the magnitute-9 Great East Japan Earthquake hit the Tohoku region in 2001, the ruling Democratic Party of Japan government of Naoto Kan did not issue such orders partly because the Diet was in session.
Proponents like Momochi say debris removal operations were delayed because many feared it would infringe on property rights, a situation that could have been avoided had an emergency clause been in place.
Osamu Nishi, a professor emeritus at Komazawa University, said Japan should follow the lead of Germany and France, which have emergency authority under their national charters.
“That’s common sense in today’s world,” Nishi said at a public event on May 3.
Yet according to a 2015 survey by the Japan Federation of Bar Associations, 23 out of 24 responding municipalities said the Constitution in its current form is not a stumbling block for rescue efforts and disaster control.
In the same survey, 19 of the respondents said municipalities should take charge of disasters at the local level and that the central government should provide logistical support.
Koju Nagai, a Kobe-based attorney who chaired the bar association’s committee for assisting disaster recovery and a researcher at the Institute of Disaster Area Revitalization, Regrowth and Governance at Kwansei Gakuin University, said the emergency clause is not necessary, as the nation’s laws for dealing with severe emergencies already give the prime minister sufficient authority.
He said instead that more authority is needed at the local level to cope with disasters, as well as coordination among municipalities, because they understand the situation and needs on the ground better than the central government.
“I do not think giving more authority to the prime minister by changing the Constitution will help communities better handle disaster control,” he said.
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