Constitutional revision: Proposed Abe-rights look to be all wrong

by Jeff Kingston

Special To The Japan Times

After the Upper House elections on July 21, Prime Minister Shinzo Abe may try to revise the Constitution. This longstanding agenda is now within reach because the Liberal Democratic Party he heads might be able to rally the necessary two-thirds of votes in both chambers of the Diet.

But the LDP’s current coalition partner, New Komeito, opposes revision, so it is a long shot. And even if Abe can clear that bar, any amendments must be approved by a majority of voters in a national referendum.

The Constitution has never been revised since it was enacted in 1947. Abe has been promoting amendment of its Article 96 to ease revision criteria, arguing that the hurdles are too high. If he gets his way, a simple majority in both houses of the Diet and a national referendum would suffice to amend the Constitution.

In fact, Japan’s current criteria are not especially stringent. The requirement of super-majority approval is common in democracies as a means of protecting fundamental rights and values enshrined in constitutions.

Abe acknowledges he faces an uphill battle as polls show tepid support for any revision. A poll conducted by the Asahi Shimbun newspaper this spring indicates that only 38 percent of voters support making it easier to revise the Constitution. And because the Supreme Court has ruled that the Diet is in a state of unconstitutionality due to excessive disparities in voter representation, even 44 percent of revision supporters are not keen to proceed at present. These concerns about the legitimacy of the current Diet, and the flawed electoral system, cast a dark shadow over Abe’s agenda.

Pro-revisionists argue that the Constitution is a legacy of the postwar U.S. Occupation from 1945-52, and as such it reeks of foreign influences. However, prominent nationalist Shintaro Ishihara, writing in the Sankei Shimbun in 2007, argued that the revisionists have it wrong because the Constitution enjoys widespread social legitimacy.

And indeed, the public shows little enthusiasm for adopting a more assertive military posture or tinkering with the war-renouncing Article 9. It has been stretched and reinterpreted extensively, so it is hard to imagine what the Japanese government actually wants to do that it can’t; as in the past, new defense guidelines, interpretations and legislation have been able to bend Article 9 to cover the mission, including collective self-defense if so desired.

While most Japanese value Article 9 as a symbol of Japan’s commitment to peace, the U.S. government has regretted imposing it almost before the ink was dry. From the early 1950s, the United States has leaned on Japan to disregard the military constraints, and has openly called for Japan to assume more security responsibilities. But tampering with Article 9 won’t improve Japan’s security — and it will inflame East Asian tensions.

The LDP’s 2012 draft Constitution also deserves more scrutiny because it aims to curtail civil liberties and prioritize public order over individual rights.

Lawrence Repeta, a professor of law at Meiji University in Tokyo, makes a strong case for why everyone should worry about Abe’s planned assault on human rights. In his view, “The overall theme is expanded government power over the people and reduced protection for individual rights. If this plan were adopted, Japan would be turning its back on the global movement toward expanded human-rights protection and government accountability.”

For example, the current Constitution embraces the concept of universal human rights stipulated in the Charter of the United Nations, while the LDP argues that human rights should reflect Japan’s history, culture and traditions.

The current Article 97 guarantees fundamental human rights and asserts that they should be “held for all time inviolate.” This article will be deleted if the LDP prevails.

The draft Constitution also imposes new duties; family members must help each other. Should government intrusion into family matters go so far as to require constitutionally mandated relationships with relatives? What kind and level of help would be required to avoid violating the Constitution?

It will also become mandatory for people to respect the national flag, national anthem and Constitution. This would establish constitutional grounds for dismissing anyone judged insufficiently patriotic. And in this new order the Emperor will be restored as the head of state.

According to Repeta, the LDP draft Constitution rewrites Article 12 so that people, “shall be aware that duties and obligations accompany freedoms and rights and shall never violate public order and public interest.” So demonstrators beware; preserving public order trumps your right to protest.

In addition, the rights to life, liberty and pursuit of happiness must not interfere with, “the public interest and public order.” And lest there be any confusion, “There is no question that individuals who assert human rights should not cause nuisances to others.” Indeed.

And what about those pesky freedoms of speech, assembly and association?

The LDP proposes that, “engaging in activities with the purpose of damaging the public interest or public order, or associating with others for such purposes, shall not be recognized.”

It is chilling to examine the LDP’s draconian proposals to circumscribe basic democratic rights and erode government accountability.

Prof. Gerald Curtis of Columbia University in New York recently wrote, “Abe has called for “getting free of the postwar regime” (“sengo regime karano dakkyaku”). But what does it mean when a prime minister calls for regime change in his own country? Constitutional amendments are normally made to fix defects in a Constitution, not to negate the principles and the spirit that the Constitution enshrines.”

And isn’t the purpose of the Constitution to place constraints on the state in order to protect people from abuse of powers and infringement on freedoms? Arguing that many of his colleagues are confused about the role of a modern Constitution, LDP maverick Taro Kono says, “The Constitution is there to tie the hands of government, not put duties on the people.”

Some analysts dismiss the possibility of Abe getting his way, asserting that talking up revision is a base-energizing empty gesture. They are probably right. But if Abe manages the unmanageable by cobbling together enough votes in the Diet, all he needs is a simple majority in a national referendum to revise Article 96.

Bear in mind that there is no minimum turnout required. Voter turnout dipped to 59.32 percent in the December 2012 elections that swept Abe back into power.

So if Abe’s proposal for easing revision criteria proceeds to a public referendum, and turnout is similar, a major change to Japan’s democratic principles could be passed by less than a third of eligible voters.

That would make it much easier for the LDP to subsequently realize the wholesale gutting of rights protected in the current Constitution.

Zealots and those with deeper pockets to spend on television commercials have a distinct advantage. Referendum law, however, bars educators from discussing this taboo topic in their classes — probably because many are sticklers for civil liberties.

Jeff Kingston is Director of Asian Studies, Temple University Japan.

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