May 3 was Constitution Memorial Day. Since its promulgation 73 years ago, Japan's postwar Constitution has remained untouched. Many reasons for this have been cited, including the length (4,986 words compared with the median 13,630 words), its vagueness and its flexibility to handle changing circumstances. In short, amending the Constitution has been deemed unnecessary.
Yet the Liberal Democratic Party and its leader, Prime Minister Shinzo Abe, would beg to differ. Since the party’s inception in 1955, the LDP has been dead set on revising the Constitution and adding certain elements to it. A major hurdle has been the need to obtain a two-thirds majority in the Diet and pass a national referendum. Today, the LDP and its allies do not hold a supermajority in the Upper House, making revision a difficult affair.
Even so, Abe has continued to pursue this goal. On May 3, the prime minister took part in an online forum hosted by a pro-amendment group and said there is “no wavering in my resolve to amend the Constitution.” Specifically, he spoke of the need to pass the LDP’s 2018 reform proposal, which most notably would add an emergency powers clause to give more power to the government in times of crisis and revise Article 9 — the war-renouncing clause.
This speech could not have come at a worse time. In fact, Abe and his Cabinet have continued to send the wrong messages during the COVID-19 pandemic. From the “stay home” video to the mask debacle, the government has shown time and again that it isn't focused on pursuing the interests of the people. The message on Constitution Day was no different. The fact that the leader of the nation was spending time to pursue his own political interests in the midst of an emergency sent all the wrong signals.
In addition, one of the hosts of the online forum where Abe spoke mentioned that the group supports efforts to amend the Constitution during Abe’s tenure, which is set to end next year. Inadvertently (or not), this suggests that Abe is more focused on cementing his legacy in the next year than helping citizens who are in dire need of financial support.
Of course, one can always argue that Abe was merely calling for the need to “begin dialogue in the Diet” to a select audience of conservative, pro-amendment supporters. It was not a message aimed at the general public and never meant he would set aside the coronavirus response.
However, the very fact that the prime minister is calling for amendments unrelated to the current pandemic response feels wrong. His speech sent two messages that don’t sit well with the people: that the Constitution has prevented the government from responding effectively and that his goal to amend the Constitution is more important than saving people from possible financial trouble.
Does the Constitution prevent an effective response?
Abe and the pro-amendment camp argue that the government lacks the power to effectively control the country during a disaster. In the proposed changes, the Cabinet would bypass the Diet and be able to issue directives under a state of emergency to protect lives and property. The justification is that during a disaster, there is no time to wait for the Diet to deliberate and vote. The concern here is that the Cabinet may be able to issue directives and ask for authorization later, rendering the checks and balance of the Diet ineffective.
Currently, the Constitution prohibits infringing on people’s rights to freedom and property. Article 22 states that “every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.” A lockdown situation like we've seen in other countries during the pandemic would violate this provision. Article 29 states that people have the right to property. Confiscating property for public use during a disaster would violate this.
On the other hand, those against amending the Constitution argue that the current version and laws are sufficient to respond effectively to a disaster. Specifically, they cite the inclusion of “public welfare” in the Constitution. For example, in Article 22, every person is free to move around as long as it doesn’t interfere with public welfare. Experts argue that as long as the government is able to prove that public welfare is endangered, it would be able to restrict movement.
Others argue that current provisions in the Basic Act on Disaster Management permit restrictions tantamount to a partial lockdown. Yukio Edano, leader of the main opposition Constitutional Democratic Party of Japan, states that measures such as Article 63 (a mayor’s right to establish a restricted area) could force people out of areas and inflict penalties for violations. While the current disaster management law is only activated during natural disasters, Edano argues that the pandemic could be included with a simple legal reform. This would make the far more burdensome constitutional amendment unnecessary.
Mixed messages don’t help
There is no clear winner in this debate yet. Despite having raged on for years, a recent NHK poll found that 32 percent supported amendments to the Constitution, while 24 percent were against it. In terms of the emergency clause alone, a Kyodo News poll conducted in March and April reported that 51 percent supported the amendment, while 47 percent were against it.
These results warrant a discussion on this issue. However, as mentioned before, the Abe Cabinet’s mixed messaging doesn’t help facilitate such a debate. The government extended the state of emergency on May 4 but relaxed restrictions on small gatherings and businesses. Further loosening was authorized in areas with limited outbreaks.
Partial opening of the country seems to contradict the exact measures Abe called for in his speech on May 3. There, he seemed to point at the constitutional limits as a major reason the government responded slowly to the outbreak. Now, the government is advocating for the opposite, opening the country to alleviate economic pains. If the Constitution were really the problem, the government should have continued its former approach. This would have proven that without penalties and stringent restrictions, Japan would be unsuccessful in containing the outbreak.
Loosening restrictions indicates that the government believes its current response is working. In his news conference, Abe stated that this month was a preparation for the next step: to end the state of emergency. If loosening measures is going to prepare Japan, then where does the argument for an emergency clause come from?
These mixed messages allow opposition parties to insist that Abe is attempting to benefit from the pandemic by pursuing his policy goals. Even if Abe’s motives were purely based on the frustration of not being able to pursue a more stringent response to the pandemic, the messages he is sending say the opposite. In fact, the more Abe mentions other amendments alongside the emergency powers clause, the more people believe the emergency clause is a pretext for forcing a vote on Article 9 — arguably the most consequential amendment of the bunch.
Time is running out
Coupled with that, the very fact that Abe’s term as LDP chief runs out in September 2021 adds fuel to the fire. Speculation leads to more speculation. But anyway, a swift end to the pandemic would be necessary to focus on constitutional reform.
Judging by the time constraints, it is understandable why many believe it will be near impossible to amend the Constitution during Abe’s tenure. The process is long and arduous. First, the amendment would have to be introduced by either 100 Lower House and 50 Upper House members or submitted by both Commissions on the Constitution. After a simple majority of members in both commissions supports the bill, passage by a supermajority in both houses would lead to a national referendum where a simple majority completes the process.
One thing Abe gets right is the need to discuss whether the country ought to amend its Constitution. This has been debated for a long time to no avail. However, now is not the time. Attempting to expedite a delicate process to meet a personal political timeline is poor conduct. As many politicians on both sides of the aisle have said, it’s important to hold this discussion when the pandemic has died down. That is when Japan should face the issue head on. Until then, the priority should be to come up with policies to help citizens who need help today.
Rintaro Nishimura is the spring research assistant in Korean studies at the Center for the National Interest in Washington. 2020, The Diplomat; distributed by Tribune Content Agency, LLC