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Fundamental Human Rights and ‘Traditional Japanese Values’: Constitutional Amendment and Vision of the Japanese Society

  • Shigenori MATSUI (a1)
Abstract

Ever since the Constitution of Japan was enacted in 1946, conservative Japanese people must have been unhappy with it. Their past attempts to enact a new constitution or to make radical revisions have been unsuccessful, but they might finally accomplish their goal under the current Abe Cabinet. Why are conservative people unhappy with the Constitution? It is because the Constitution prevents Japan from becoming a ‘normal state’, and it is deemed not in line with ‘traditional Japanese values’. The fundamental human rights provisions are their main target. Therefore, conservative people want to restore ‘traditional Japanese values’ by amending the bill of rights of the Constitution. This article will examine the reasons why conservative people are upset with the Constitution, how they would like to amend it, and whether their arguments are persuasive. It will conclude that their arguments, just like the ‘Asian values’ theory, are hardly justifiable and could completely undermine the foundation of individual rights protection.

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Footnotes
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Professor of Law, University of British Columbia, Peter A Allard School of Law. This article was originally presented in the 14th ASLI conference at the University of Philippines, Manila, in 2017, on ‘A Uniting Force: “Asian Values” and the Law’.

Footnotes
References
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1. Nihonkoku kenpō [Constitution of Japan] (promulgated on 3 November 1946).

2. Jiyū minshutō [Liberal Democratic Party (LDP)], ‘Rittō sengen/kōryō [Declaration of the Party Policy], Tō no shimei [Mission of the Party]’ (Jiyū minshutō) <www.jimin.jp/aboutus/declaration/index.html> accessed 30 September 2017.

3. The term ‘normal state’ was first used by Ichiro Ozawa, who used to be an influential member of the LDP but later left the party to become the leading member of the opposition. But this term is believed to show the basic ideas shared among conservative politicians. Of course, the special limitation introduced by the pacifism clause of the constitution, noted below, is the main culprit. Ichiro Ozawa, ‘Watashi no kihon rinen [My Fundamental Principles]’ (Minshutō [Democratic Party of Japan], 11 September 2006) <www.eda-jp.com/dpj/2006/ozawa0911.html> accessed 30 September 2017.

4. Hook, Glenn D and McCormack, Gavan, Japan’s Contested Constitution: Documents and Analysis (Routledge 2001). See eg ‘Constitutional Revision Research Project’ (Reischauer Institute of Japanese Studies) <https://projects.iq.harvard.edu/crrp> accessed 30 September 2017.

5. Panton, Michael A, ‘Politics, Practice and Pacifism: Revising Article 9 of the Japanese Constitution’ (2010) 11(2) Asian-Pacific Law & Policy Journal 163 ; Martin, Craig, ‘Change It to Save It: Why and How to Amend Article 9’ (2017) 18 Ritsumeikan Journal of Peace Studies 1 .

6. For a general description of the enactment process of the Constitution of Japan, see Koseki, Shoichi, The Birth of Japan’s Postwar Constitution (Ray A Moore tr, Westview Press 1998); McNelly, Theodore, Origins of Japan’s Democratic Constitution (University Press of America 2000); Moore, Ray A and Robinson, Donald L, Partners for Democracy: Crafting the New Japanese State under MacArthur (OUP 2004); Ward, Robert E, ‘The Origins of the Present Japanese Constitution’ (1956) 50(4) American Political Science Review 980 .

7. There are some precedents, which suggest the existence of arguments similar to arguments about rights in Japan. Feldman, Eric A, The Ritual of Rights in Japan: Law, Society, and Health Policy (CUP 2000). But they had not been crystalized into the arguments of rights and it cannot be denied that the government had to invent the Japanese words for ‘right’ after the Meiji Restoration.

8. Dai-nippon teikoku kenpō [Constitution of the Empire of Japan] (promulgated on 2 November 1889) (Meiji Constitution).

9. ibid art 1. Indeed he was sacred and inviolable; ibid art 3. He was a ‘living God’.

10. ibid preamble.

11. ibid art 4.

12. ibid art 29 (protection of freedom of speech ‘within the limits of law’).

13. Office of the Supreme Commander for the Allied Powers, ‘Removal of Restrictions on Political, Civil and Religious Liberties’ (SCAPIN-93, National Diet Library 4 October 1945) <www.ndl.go.jp/modern/e/img_l/M003/M003-001l.html> accessed 30 September 2017.

14. The Potsdam Declaration listed the mandate that ‘[f]reedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established’ as one of the terms of Japanese surrender. ‘Potsdam Declaration: Proclamation Defining Terms for Japanese Surrender’ (National Diet Library 26 July 1945), art 10 <www.ndl.go.jp/constitution/e/etc/c06.html> accessed 30 September 2017. One of the policies of the United States toward the Occupation was ‘the development in Japan of respect for fundamental human rights and of principles of liberal and representative government’. ‘United States Initial Post-Defeat Policy Relating to Japan’ (Report by the State-War-Navy Coordinating Subcommittee for the Far East, SWNCC150/1, National Diet Library), art 3 <www.ndl.go.jp/constitution/e/shiryo/01/013/013_002l.html> accessed 30 September 2017.

15. Koseki (n 6) 9.

16. ibid 50.

17. ibid.

18. ibid 56.

19. ibid 56, 59–60.

20. ibid 60–61.

21. ibid 61, 76.

22. ibid 76.

23. ibid 99.

24. ibid 107–8.

25. ‘Record of Events on 13 February 1946 when Proposed New Constitution for Japan was submitted to the Prime Minister, Mr. Yoshida, in Behalf of the Supreme Commander’ (National Diet Library 13 February 1946) <www.ndl.go.jp/constitution/e/shiryo/03/077/077tx.html> accessed 30 September 2017.

26. Jōji Matsumoto, the chairperson of the government committee, left notes indicating that Whitney added that they could not guarantee the security of the person of the Emperor without the acceptance of the draft. Jōji Matsumoto, ‘2gatsu 13nichi kaiken ryakuki [February 13 memorandum]’ (National Diet Library), <www.ndl.go.jp/constitution/shiryo/03/002_4/002_4_003l.html> accessed 30 September 2017.

27. Koseki (n 6) 133.

28. ibid 208.

29. Akira Momochi, ‘Sengo 70nen naze ima kenpō kaisei ga hitsuyō ka [After 70 Years from the End of War, Why Is the Constitutional Amendment Necessary?]’ (BLOGOS, 6 June 2015) <http://blogos.com/article/115200/> accessed 30 September 2017; Justin Williams, ‘Making the Japanese Constitution: A Further Look’ (1965) 59(3) American Political Science Review 665.

30. Constitution of Japan, preamble.

31. ibid art 1.

32. ibid.

33. ibid art 4(1).

34. ibid art 9(1).

35. ibid art 9(2).

36. ibid preamble.

37. n 14.

38. ‘Three basic points stated by the Supreme Commander to be the “musts” in constitutional revision’ (Alfred Hussey Papers Constitution File No 1 Document No 5, National Diet Library 3 February 1946) <www.ndl.go.jp/constitution/e/shiryo/03/072shoshi.html> accessed 30 September 2017.

39. Mirabella, Daniel, ‘The Death and Resurrection of Natural Law’ (2011) 2 The Western Australian Jurist 251 .

40. United Nations General Assembly, Universal Declaration of Human Rights (A/RES/3/217, 10 December 1948); de Shutter, Olivier, International Human Rights Law (CUP 2010) 31 , 50; Louis Henkin, ‘The Universality of the Concept of Human Rights’ (1989) 506 Annals of the American Academy of Political and Social Science 10; Kathleen Renée Cronin-Furman, ‘60 Years of the Universal Declaration of Human Rights: Towards an Individual Responsibility to Protect’ (2009) 25(1) American University International Law Review 175.

41. Constitution of Japan, art 11.

42. ibid art 97.

43. Nobuyoshi Ashibe (Kazuyuki Takahashi (supplemented)), Kenpō [Constitution] (6th edn, Iwanami Shoten 2015) 80.

44. Constitution of Japan, art 13.

45. Ashibe (n 43) 82.

46. Exceptions are the protection of the right to choose one’s occupation (Constitution of Japan, art 22) and the protection of the right to property (Constitution of Japan, art 29), which allow for restrictions for ‘public welfare’.

47. Constitution of Japan, art 12.

48. ibid art 13.

49. Matsui, Shigenori, Constitution of Japan: A Contextual Analysis ( Hart Publishing 2011 ) 164168 .

50. Constitution of Japan, art 20(1) (‘Freedom of religion is guaranteed to all.’).

51. ibid art 20(1) (‘No religious organization shall receive any privileges from the State, nor exercise any political authority.’) and art 20(3) (‘The State and its organs shall refrain from religious education or any other religious activity.’).

52. Meiji Constitution, art 28 (protection of freedom of religion ‘within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects’).

53. Shimazono, Susumu, ‘State Shinto and the Religious Structure of Modern Japan’ (2005) 73(4) Journal of American Academy of Religion 1077 ; Shimazono, Susumu, ‘State Shinto in the Lives of the People: The Establishment of Emperor Worship, Modern Nationalism and Shrine Shinto in Late Meiji’ (2009) 36(1) Japanese Journal of Religious Studies 93 . See also Murakami, Shigeyoshi, Tennōsei kokka to shūkyō [The Emperor and the Religion] (Kōdansha 2007).

54. ‘The Shinto Directive’ (1960) 1(2) Contemporary Religions in Japan 85.

55. Constitution of Japan, art 21(1) (‘Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.’).

56. Shinbunshihō [Newspaper Act], Law No 42 of 1909 (abolished on 24 May 1949), art 23.

57. ‘Taisei yokusankai jissen yōkō [Basic Plan for Realizing the Taisei Yokusankai]’ (National Diet Library 14 December 1940) <www.ndl.go.jp/modern/img_r/084/084-001r.html> (accessed 5 December 2017). The ‘Taisei yokusan kai’ was an attempt to mobilize all Japanese people in the total and complete support for the imperial rule. No one was allowed to refrain from actively endorsing the government decision made in the name of the Emperor.

58. Mitchell, Richard H, Censorship in Imperial Japan (Princeton University Press 1983).

59. Chian ijihō [Peace Preservation Act], Law No 54 of 1941 (abolished on 5 October, 1945), art 1; Kasza, Gregory, The State and the Mass Media in Japan, 1918-1945 (University of California Press 1993).

60. Constitution of Japan, art 14(1) (‘All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.’).

61. ibid art 24(1) (‘Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.’) and art 24(2) (‘With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.’).

62. Tonooka, Monjuro, ‘The Development of the Family Law in Modern Japan’ (1965) 2(1) Waseda hikaku hōgaku [Waseda Comparative Law Review] 198 ; Matsui, Shigenori, ‘The Constitution and the Family in Japan’ in Harry N Scheiber and Laurent Mayali (eds), Japanese Family Law in Comparative Perspective (The Robbins Collection Publications 2009) 33 .

63. Constitution of Japan, art 98(1).

64. ibid art 81.

65. ibid art 99.

66. The Constitution has, however, several provisions on obligation of the people; obligation to provide education to children (art 26(2)), obligation to work (art 27(1)), and the obligation to pay tax (art 30).

67. Shūgiin Kenpō shinsakai [House of Representatives Commission on the Constitution], ‘Nihonkoku kenpō zenbun nikansuru kiso shiryō [Basic Resource Materials on the Preamble to the Constitution of Japan]’, (shu ken shi dai 32gō 46, Shūgiin Kenpō shinsakai July 2003) <www.shugiin.go.jp/internet/itdb_kenpou.nsf/html/kenpou/chosa/shukenshi032.pdf/$File/shukenshi032.pdf> accessed 30 September 2017.

68. ibid; Jiyū minshutō kenpō chōsakai [LDP Constitution Committee], ‘Kenpōkaisei taikō sōan [Outline Draft of the Amendments to the Constitution]’ (Kenpō shiryōshū [Constitution Information Centre], 1972) <www.geocities.co.jp/WallStreet-Bull/8091/kenpousouan1972inaba.html> accessed 30 September 2017. The LDP published the major points for constitutional amendment in 2004 before the publication of the draft of the new constitution. The LDP insisted on the necessity of writing the constitution in beautiful Japanese languages. Jiyū minshutō Kenpō kaigi [LDP Constitution Council], ‘Kenpō kaisei no points [Major Points of Constitutional Amendment]’ (Kenpō kaigi, June 2004) <www.kenpoukaigi.gr.jp/seitoutou/200406jimin-kenpoukaiseinopoint.htm> accessed 30 September 2017.

69. Momochi (n 29). The LDP argued that they need to enact a new constitution ‘emphasizing our country’s inherent values (i.e. vision of the state) based on Japanese history, tradition and culture, holding highly the idea of a sound common sense, which includes the sense of morality Japanese people inherently aspire to, finding the identity of the country of Japan and Japanese in the Constitution, and breeding patriotism naturally through the Constitution.’ LDP Constitutional Council, ‘Major Points’ (n 68); Shūgiin, ‘Basic Resource Materials’ (n 67) 46.

70. Nippon kaigi [Japan Conference], ‘Shinkenpō no taikō [Outline of New Constitution]’ (Nippon kaigi, 11 November 2016) <www.nipponkaigi.org/opinion/archives/8502> accessed 30 September 2017. The Japan Conference is believed to have had a very strong influence on the LDP and Shinzo Abe.

71. ibid.

72. ibid.

73. LDP Constitution Committee, ‘Outline Draft’ (n 68); Japan Conference (n 70).

74. Momochi (n 29). They claim that it is necessary to clearly accept the Self Defense Forces as an armed force. LDP Constitution Committee, ‘Outline Draft’ (n 68); see also Shūgiin Kenpō shinsakai [House of Representatives Commission on the Constitution], ‘Kenpō nikansuru omona ronten ni kansuru sankō shiryō [Materials on the Major Issues of the Constitution]’ (shu ken shi dai77gō, Shūgiin Kenpō shinsakai May 2012), 1 <www.shugiin.go.jp/internet/itdb_kenpou.nsf/html/kenpou/shukenshi077.pdf/$File/shukenshi077.pdf> accessed 30 September 2017.

75. House of Representatives Commission on the Constitution, ‘Major Issues’ (n 74) 16.

76. Momochi (n 29). They argue the necessity of enacting a provision to help address an emergency; LDP Constitution Committee, ‘Outline Draft’ (n 68).

77. LDP Constitution Committee, ‘Outline Draft’ (n 68). They thus argue that it is necessary to expressly require citizens to have respect for others.

78. Hidetsugu Yagi, ‘Kindai kenpō ni okeru ningenzō nitsuite [On the Vision of Human Beings in the Modern Constitution]’ (1997) 20 Meiji seitoku kinen gakkai [Meiji Japan Society] 36 <www.mkc.gr.jp/seitoku/pdf/f20-3.pdf> accessed 30 September 2017.

79. Japan Conference (n 70).

80. LDP Constitution Council, ‘Major Points’ (n 68).

81. ibid.

82. Shūgiin Kenpō shinsakai [House of Representatives Commission on the Constitution], ‘Kokumin no kenri oyobi gimu ni kansuru kore made no giron [Arguments Provided So far on the Protection of Right of Citizens]’ (shū ken shi dai63gō, Shūgiin Kenpō shinsakai February 2005), 8 <www.shugiin.go.jp/internet/itdb_kenpou.nsf/html/kenpou/chosa/shukenshi063.pdf/$File/shukenshi063.pdf/> accessed 30 September 2017.

83. ibid 11.

84. ibid 11–13; LDP Constitution Council, ‘Major Points’ (n 68).

85. Momochi (n 29).

86. Shūgiin Kenpō shinsakai [House of Representatives Commission on the Constitution], ‘Nihonkoku kenpō no seiteikatei nikansuru shiryō [Materials on the Enactment Process of the Constitution of Japan]’ (Shū ken shi dai90gō, Shūgiin Kenpō shinsakai November 2016), 9 <www.shugiin.go.jp/internet/itdb_kenpou.nsf/html/kenpou/shukenshi090.pdf/$File/shukenshi090.pdf> accessed 30 September 2017.

87. United Nations, Treaty of Peace with Japan. Signed at San Francisco, on 8 September 1951, (No 1832 United Nations Treaty Series 46, 1952) < https://treaties.un.org/doc/publication/unts/volume%20136/volume-136-i-1832-english.pdf> accessed 30 September 2017.

88. Constitution of Japan, art 96.

89. Hiroshi Nakanishi, ‘The Gulf War and Japanese Diplomacy’ (Nippon.com, 6 December 2011) <www.nippon.com/en/features/c00202/> accessed 30 September 2017.

90. Yomiuri Newspaper, ‘Kenpō kaisei shian zenbun [Full Text of Draft of the Yomiuri Constitutional Amendment]’ Yomiuri Shimbun (Tokyo, 2004) <https://info.yomiuri.co.jp/media/yomiuri/feature/kaiseishian.html?> accessed 30 September 2017.

91. Jiyū minshutō [LDP], ‘Shin-kenpō sōan [Draft of the New Constitution]’ (Jiyū minshutō 2005), <www.kenpoukaigi.gr.jp/seitoutou/051122jimin-sinkenpousouan.pdf> accessed 30 September 2017.

92. Nihonkoku kenpō no kaisei tetsuduki nikansuru hōritsu [Act on Amendment Procedure of the Constitution of Japan], Law No 51 of 2007 (Referendum Act).

93. Shūgiin Kenpō shinsakai [House of Representatives Commission on the Constitution], ‘Shūgiin Kenpō shinsakai [House of Representatives Commission on the Constitution]’ (House of Representatives 2014) <www.shugiin.go.jp/internet/itdb_kenpou.nsf/html/kenpou/index.htm> accessed 30 September 2017 ; Sangiin Kenpō shinsakaii [House of Councillors Commission on the Constitution], ‘Sangiin kenpō shinsakai [House of Councillors Commission on the Constitution]’ (House of Councillors) <www.kenpoushinsa.sangiin.go.jp> accessed 30 September 2017.

94. After another landslide victory in 2014, the LDP obtained 291 seats and the Kōmei Party obtained twenty-five seats for a combined 326 seats of 475, which is sufficient to establish a two-thirds majority in the House of Representatives.

95. Jiyū minshutō [LDP], ‘Nihonkoku kenpō kaisei sōan [Amendment Drafts of the Constitution of Japan]’ (Jiyū minshutō, 2012), <https://jimin.ncss.nifty.com/pdf/news/policy/130250_1.pdf> accessed 30 September 2017.

96. As a result of the 2016 House of Councillors election, the LDP obtained 121 seats and Kōmei Party obtained twenty-five seats for a combined 146 out of 242 seats. The coalition did not obtain the two-thirds necessary to unilaterally pass the constitutional amendment proposal (162 seats). But with the support from some other minority parties such as Ōsaka Ishin (twelve seats) and some independent members, many believe that there is a possibility to pass constitutional amendment proposals.

97. Justin McCurry, ‘Japan Could Change Pacifist Constitution after Shinzo Abe Victory’ The Guardian (London, 11 July 2016) <www.theguardian.com/world/2016/jul/11/japan-could-change-pacifist-constitution-after-shinzo-abe-victory> accessed 30 September 2017; Adam P Liff, ‘How Specifically Does Japan’s LDP Want to Revise the Constitution?’ The Diplomat (Tokyo, 14 July 2016) <http://thediplomat.com/2016/07/how-specifically-does-japans-ldp-want-to-revise-the-constitution/> accessed 30 September 2017; Jeffrey W Horning, ‘Constitutional Revision in Japan: Why Change Is Hard to Come by’ (Council on Foreign Relations 26 July 2016) <www.foreignaffairs.com/articles/japan/2016-07-26/constitutional-revision-japan> accessed 30 September 2017.

98. Repeta, Lawrence, ‘Japan’s Democracy at Risk—The LDP’s Ten Most Dangerous Proposals for Constitutional Change’ (2013) 11(3) Asia Pacific Journal 1 ; Goodman, Carl F, ‘Contemplated Amendments to Japan’s 1947 Constitution: A Return to Iye, Kokutai and the Meiji State’ (2017) 26 Washington International Law Journal 17 .

99. LDP, ‘2005 Draft’ (n 91) preamble.

100. LDP, ‘2012 Amendment Draft’ (n 95) preamble.

101. ibid.

102. ibid.

103. ibid.

104. Jiyū minshutō [LDP], ‘Nihonkoku Kenpō kaisei sōan Q&A (zōhoban) [Q&A on Amendment Drafts to the Constitution of Japan (updated)]’ 5 (Jiyū minshutō October 2013) <https://jimin.ncss.nifty.com/pdf/pamphlet/kenpou_qa.pdf> accessed 30 September 2017.

105. ibid. See ‘The Constitution of Prince Shōtoku’ (Asia for Educators, Columbia University), art 1 <http://afe.easia.columbia.edu/ps/japan/shotoku.pdf> accessed 30 September 2017.

106. Japan Conference (n 70).

107. Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) preamble.

108. Sankei Newspaper, ‘Kokumin no Kenpō [Constitution for the Citizens]’ Sankei Shimbun (Tokyo, 26 April 2013), preamble <www.sankei.com/politics/news/141030/plt1410300023-n1.html> accessed 30 September 2017.

109. ibid.

110. ibid.

111. LDP, ‘2012 Amendment Draft’ (n 95) art 11.

112. ibid.

113. LDP, ‘Q&A on Amendment Drafts’ (n 104) 13.

114. ibid 37.

115. ibid. The Sankei Newspaper draft does not have a clause declaring fundamental human rights as inviolable and eternal (Sankei Newspaper, ‘Constitution’ (n 108) art 17(1)). The Yomiuri Newspaper draft as well as Sankei Newspaper draft also does not include a provision corresponding to current article 97. See Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) and Sankei Newspaper, ‘Constitution’ (n 108).

116. Repeta (n 98); Goodman (n 98) 45–47.

117. LDP, ‘2012 Amendment Draft’ (n 95) art 13.

118. The Sankei Newspaper draft does not have a clause corresponding to the first sentence of Article 13 but declares that ‘human dignity should not be infringed’ (Sankei Newspaper, ‘Constitution’ (n 108) art 22(1)).

119. Repeta (n 98).

120. LDP, ‘2005 Draft’ (n 91) art 12.

121. LDP, ‘2012 Amendment Draft’ (n 95) art 12.

122. LDP, ‘2005 Draft’ (n 91) art 13.

123. LDP, ‘2012 Amendment Draft’ (n 95) art 13.

124. LDP, ‘Q&A on Amendment Drafts’ (n 104) 13.

125. ibid 14.

126. Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) art. 17.

127. ibid art 18.

128. Sankei Newspaper, ‘Constitution’ (n 108) art 18.

129. Repeta (n 98).

130. LDP, ‘Q&A on Amendment Drafts’ (n 104) 13, 15.

131. The 2005 draft as well as 2012 draft proposed to add disability as one of the prohibited grounds for discrimination (LDP, ‘2005 Draft’ (n 91) art 14; LDP, 2012 Amendment Draft (n 95) art 14), while the 2012 draft obligated the government to strive to provide an adequate environment for education (LDP, ‘2012 Amendment Draft’ (n 95) art 26(3)).

132. LDP, ‘2005 Draft’ (n 91) art 19-2.

133. LDP, ‘2012 Amendment Draft’ (n 95) art 19-2.

134. LDP, ‘2005 Draft’ (n 91) art 21-2.

135. LDP, ‘2012 Amendment Draft’ (n 95) art 21-2.

136. LDP, ‘2005 Draft’ (n 91) art 25-2.

137. LDP, ‘2012 Amendment Draft’ (n 95) art 25-2.

138. LDP, ‘2005 Draft’ (n 91) art 25-3.

139. LDP, ‘2012 Amendment Draft’ (n 95) art 25-4.

140. LDP, ‘Q&A on Amendment Drafts’ (n 104) at 15.

141. Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) art 20. The personality right means the right to integrity as a person or the right to personhood.

142. ibid art 30.

143. ibid art 47.

144. ibid art 50.

145. Sankei Newspaper, ‘Constitution’ (n 108) art 31.

146. ibid art 32.

147. ibid art 43.

148. ibid art 51(2).

149. LDP, ‘2005 Draft’ (n 91) art 21(1).

150. LDP, ‘2012 Amendment Draft’ (n 95) art 21(2). The Sankei Newspaper draft would also add that ‘freedom of expression can be subject to restriction by statutes for the protection of morality and juveniles’ in addition to general restrictions for national security, public interest, or public order. Sankei Newspaper, ‘Constitution’ (n 108) art 28(3).

151. Goodman (n 98) 53–54; Repeta (n 98).

152. LDP, ‘Q&A on Amendment Drafts’ (n 104) 16. The Aum Shinrikyo is a religious cult group and was accused of having engaged in various illegal activities, including spreading deadly sarin gas inside Tokyo subway trains in 1995, killing thirteen people and injuring more than 6,000 others. The government wanted to apply the Anti-Subversive Activity Act to disband the organization but failed because of the strong opposition. Hakaikatsudō bōshihō [Anti-subversive Activities Act], Law No 240 of 1952, art 7. Instead, the Aum Shinrikyo lost the status of religious corporation under the Religious Corporation Act but religious organization itself survived. Shukyō hōjinhō [Religious Corporation Act], Law No 126 of 1951.

153. LDP, ‘Q & A on Amendment Drafts’ (n 104) 16.

154. LDP, ‘2005 Draft’ (n 91) art 20(3).

155. LDP, ‘2012 Amendment Draft’ (n 95) art 20(1).

156. ibid art 20(3).

157. See nn 52–53.

158. Supreme Court Grand Bench Judgment 13 July 1977, 31-4 Minshū 533.

159. Supreme Court Grand Bench Judgment 2 April 1997, 51-4 Minshū 1673.

160. LDP, ‘Q&A on Amendment Drafts’ (n 104) 18.

161. ibid.

162. Goodman (n 98) 44.

163. LDP, ‘2012 Amendment Draft’ (n 95) art. 24(1).

164. ibid art 24(2).

165. LDP, ‘Q&A on Amendment Drafts’ (n 104) 16.

166. Japan Conference (n 70).

167. Yomiuri Newspaper, ‘Full Text of Draft’(n 90) art 27(1).

168. Sankei Newspaper, ‘Constitution’ (n 108) art 23.

169. ibid 17.

170. Goodman (n 98) 61.

171. The LDP 2012 draft also mandated the respect for human dignity and equality of sexes with respect to other matters on family, support, guardianship, marriage, divorce, property, succession, and relatives. LDP, ‘2012 Amendment draft’ (n 98) art 24(3).

172. LDP, ‘2012 Amendment draft’ (n 95) art 1. See also LDP, ‘Q&A on Amendment Drafts’ (n 104) 7.

173. Japan Conference (n 70). On the other hand, the Yomiuri Newspaper draft does not include such a provision. Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) art 1 (sovereignty of the people) and art 5 (symbolic status of the Emperor).

174. Sankei Newspaper, ‘Constitution’ (n 108) preamble.

175. ibid art 1.

176. LDP, ‘2005 Draft’ (n 91) preamble; LDP, ‘2012 Amendment draft’ (n 95) preamble.

177. Sankei Newspaper, ‘Constitution’ (n 108) art 19(1) (obligation to defend the country and to serve for the society and for the public).

178. LDP, ‘2005 Draft’ (n 91) art 9-2; LDP, 2012 Amendment draft (n 95) art. 9-2. Currently, the Self Defense Forces are not regarded as armed forces in Japan but a minimum force to defend Japan not reaching to an armed force.

179. Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) art 12; Sankei Newspaper, ‘Constitution’ (n 108) art 16(1).

180. LDP, ‘2005 Draft’ (n 91) art 9-2(3); LDP, ‘2012 Amendment draft’ (n 95) art 9-2(3); Sankei Newspaper, ‘Constitution’ (n 108) art 16(1) (listing contribution to international peace as one of the purposes of holding armed forces).

181. See n 40.

182. Sullivan, Declan O’, ‘Is the Declaration of Human Rights Universal?’ (2000) 4(1) International Journal of Human Rights 25 ; Franck, Thomas M, ‘Are Human Rights Universal?’ (2001) 80(1) Foreign Affairs 191 ; Mullender, Richard, ‘Human Rights: Universalism and Cultural Relativism’ (2003) 6(3) Critical Review of International Social and Political Philosophy 70 ; Le, Nhina, ‘Are Human Rights Universal or Culturally Relative?’ (2016) 28 Peace Review: A Journal of Social Justice 203 .

183. The LDP draft ‘is totally at odds with the very purpose for which Japan’s Constitution is supposed to exist. Any constitution that is based on the principle of constitutionalism is essentially a set of rules for keeping the state power in check to protect the rights of citizens. But the LDP’s draft constitutional amendment clearly aims to impose various duties on the people and force a specific set of values on the people. In other words, it is meant to control the people, rather than to keep the state in check.’ Editorial, ‘LDP Amendment Draft Is a Flawed Perception of the Constitution’ Asahi Shimbun (Tokyo, 19 October 2016) <www.asahi.com/ajw/articles/AJ201610190032.html> accessed 30 September 2017.

184. LDP, ‘Q&A on Amendment Drafts’ (n 104) 6.

185. ibid.

186. LDP, ‘2012 Amendment draft’ (n 95) art 102(1).

187. Constitution of Japan, art 97.

188. LDP, ‘Q&A on Amendment Drafts’ (n 104) 37.

189. ibid 38.

190. Yomiuri Newspaper, ‘Full Text of Draft’ (n 90) preamble; Sankei Newspaper, ‘Constitution’ (n 108) art 112(2).

191. Goodman (n 98) 51.

192. Fareed Zakaria, ‘Culture Is Destiny: A Conversation with Lee Kuan Yew’ (1994) 73(2) Foreign Affairs 109; Michal D Barr, ‘Lee Kuan Yew and the “Asian Values” Debate’ (2000) 24 Asian Studies Review 309; Yvonne Tew, ‘Beyond “Asian Values”: Rethinking Rights,’ (CGHR Working Paper 5, University of Cambridge Centre for Governance and Human Rights November 2012), <www.repository.cam.ac.uk/bitstream/handle/1810/245115/CGHR_WP_5_2012_Tew.pdf> accessed 30 September 2017 .

193. Amartya Sen, ‘Human Rights and Asian Values,’ (Carnegie Council on Ethics and International Affairs, 25 May 1996) <www.carnegiecouncil.org/publications/archive/morgenthau/254.html> accessed 30 September 2017; Surain Subramaniam, ‘The Asian Values Debate: Implications for the Spread of Liberal Democracy’ (2000) 27(1) Asian Affairs 19; Chang Yau Hoon, ‘Revisiting the Asian Values Argument Used by Asian Political Leaders and Its Validity’ (2004) 32(2) Indonesian Quarterly 154.

194. Christian Welzel, ‘The Asian Values Thesis Revisited: Evidence from the World Values Survey’ (2011) 12(1) Japanese Journal Political Science 1; International Federation for Human Rights (FIDH) ‘Demystifying Human Rights Protection in Asia’ (Background Paper N0 669a, FIDH November 2015) <www.fidh.org/IMG/pdf/asie669anglaisbassdef.pdf> accessed 30 September 2017.

195. Editorial (n 183) (‘Underlying the LDP draft Constitution and running through it like a basso continuo is the philosophy that the interests of the state and groups supersede the human rights of individual citizens that are highly valued under the current Constitution.’).

196. Kunaichō [Imperial House Agency], ‘Tennō kōgō ryō heika gokekkon man 50nen ni saishite [On the 50th Anniversary of the Marriage of the Emperor and Empress]’ (Kunaichō 8 April 2009) <www.kunaicho.go.jp/okotoba/01/kaiken/kaiken-h21-gokekkon50.html> accessed 30 September 2017 (statement of the current Emperor of his belief that the status of the Emperor under the Constitution of Japan is more in line with the long history of the Emperor system). See also Yasumaru, Yoshio, Kindai tennōzō no keisei [Creation of the Image of the Modern Emperor] (Iwanami Shoten 2007).

197. During the Tokugawa era ranging roughly three centuries before the Meiji Restoration, it was only the samurai warriors who were retained by the local lords that were required to defend the lord under feudal relationship. There was no mandatory military service for the public. The Meiji government introduced mandatory military service and conscription in 1873 and the Meiji Constitution stipulated that the Japanese subjects had an obligation for military service as provided by the law. Meiji Constitution, art 20.

198. The original Japanese word for ‘harmony’ in the Prince Shotoku’s Seventeen-Article Constitution was wa, which also meant peace and comfort. It mandated everyone to lose his or her sharp edges and is meant to teach everyone to fit oneself into the society. The concept also promoted kindness, mutual help, and caring for others. It is not an authorization for the government to suppress different opinions and different cultures. Yutaka Sakisaka, Wa no Kōzō [Structure of Harmony] (Hokuju Shuppan 1979); Takeshi Umehara, Shōtoku taishi 2 [Prince Shotoku 2] (Shūeisha 1993); Takeru Umehara, Nihon no dentō towa nanika [What is Japanese Tradition] (Minerva Shobō 2010).

199. Kōmeitō, Kenpō [Constitution], (Kōmeitō) <www.komei.or.jp/more/understand/constitution.html> accessed 30 September 2017.

200. Ōsaka ishin no kai [Osaka Restoration Association], ‘Kenpō kaisei gen-an [Constitutional Amendment Proposals]’ (Ōsaka Ishin no kai 24 March 2016) <https://o-ishin.jp/news/2017/images/90da581ba24723f77027257436ab13c1cec1a1ed.pdf> accessed 30 September 2017. Currently, only ‘compulsory education,’ public elementary and junior-high school education, is free. Constitution of Japan, art 26(2).

201. Even among the coalition parties, the opinion is split on whether the right to know and the environment right should be added as constitutional rights, since the LDP is more willing to provide them as a matter of government responsibility and not as constitutional rights. nn 134–140.

202. Constitution of Japan, art 96; Referendum Act (n 92) art 47 (a voter has one vote for each of the constitutional amendment proposal).

203. According to the Asahi Newspaper, 41% would support the constitutional amendment, while 50% would oppose it. ‘Genkō kenpō nihon nitotte yokatta 89% [89% welcomed the Current Constitution]’ Asahi Shimbun (Tokyo, 2 May 2017), <www.asahi.com/articles/ASK4L528LK4LUZPS004.html> accessed 30 September 2017. On the other hand, according to the Yomiuri Newspaper, 49% would support the constitutional amendment, while the same 49% would oppose it. ‘Sekō 70nen, kenpō no yakuwai hyōka 89% [70 Years after Taking Effect, 89% Values the Role of the Constitution]’ Yomiuri Shimbun (Tokyo, 28 April 2017) <www.yomiuri.co.jp/feature/TO000302/20170428-OYT1T50166.html> accessed 30 September 2017.

204. ‘Kenpō kaisei 2020nen ni sekō shitai: Shushō ga message [Wishing to Have a New Constitution by 2020: Message from Prime Minister]’ Asahi Shimbun (Tokyo, 3 May 2017) <www.asahi.com/articles/ASK534KF0K53UTFK002.html> accessed 30 September 2017.

205. ibid. At least he added that he also wishes to add a clause mandating access to a free higher education for everyone. Apparently, this proposal was suggested to attract the support of the Ōsaka Ishin no kai. However, this proposal was never included in the LDP’s 2005 or 2012 draft. Together with his proposal to add a third clause to art 9 to constitutionalize the Self Defense Forces while leaving both the first and second clauses intact, which was never proposed in the 2005 draft or 2012 draft, his actions left everybody wondering whether he was still committed to the 2012 draft.

206. As a result of the un-expected general election in October 2017, the LDP obtained 284 seats and the LDP and Kōmei coalition obtained 313 seats out of 465 in the House of Representatives, more than two-thirds necessary to propose constitutional amendment. This landslide victory for Abe would surely clear the way for possible constitutional amendment.

* Professor of Law, University of British Columbia, Peter A Allard School of Law. This article was originally presented in the 14th ASLI conference at the University of Philippines, Manila, in 2017, on ‘A Uniting Force: “Asian Values” and the Law’.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
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