A Process of Enactment

The enactment process of the Constitution of Japan is one of the reasons why conservative people have been unhappy with it.Footnote ⁶ After the Meiji Restoration in 1868, Japan underwent rapid modernization, a process which included the adoption of a Westernized legal system. The Japanese government needed to build a new legal system from scratch, since there was previously no well-established notion of legal rights or property rights.Footnote ⁷ To accomplish this, Japan enacted major legislation such as the Civil Code and the Criminal Code. After successfully enacting these pieces of legislation, in 1889 Japan enacted its first modern constitution: the 1889 Meiji Constitution (Meiji Constitution).Footnote ⁸ Under the Meiji Constitution, the Emperor was sovereign,Footnote ⁹ and he had all the power to govern Japan, just as he had before the enactment of the Meiji Constitution.Footnote ¹⁰ Indeed, the Emperor simply promised to abide by the Meiji Constitution voluntarily.Footnote ¹¹ Furthermore, while the Meiji Constitution protected the rights of the public by affording rights to the subjects of the Emperor, such protection was granted only by the grace of the Emperor, and it was protected only within the confines of statute.Footnote ¹² Therefore, the Emperor could infringe the rights of the public without any constitutional restriction. Moreover, there was no system of judicial review. Consequently, the protection of rights and freedoms granted to the people was not very effective. Under the Meiji Constitution all Japanese citizens, as subjects of the Emperor, were expected to sacrifice themselves for the Emperor and for the Empire of Japan.

When Japan lost the Pacific War, Japan was placed under occupation in order to build a liberal democracy for the purpose of ensuring that Japan would never become a threat to international order. The occupation forces established the General Headquarters of the Supreme Commander for the Allied Powers (GHQ) in Tokyo and General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), led the occupation forces. These occupation forces ordered the Japanese government to abrogate various statutes that restricted individual freedoms and to immediately release political prisoners.Footnote ¹³ The occupation forces strongly believed that strong protection of individual rights was essential for Japan to become a liberal democracy.Footnote ¹⁴

The occupation forces introduced a number of legal reforms as well. One of the reforms they introduced was constitutional reform. From the beginning of the occupation, MacArthur and the occupation forces believed that the Meiji Constitution needed to be fundamentally revised.Footnote ¹⁵ The Japanese government insisted that formal revisions were unnecessary and any necessary changes could be accomplished by revising its enforcement of the Meiji Constitution. Despite the constant pressure from the occupation forces for constitutional amendment, the Japanese government resisted changes to the constitution. However, the government eventually decided to establish a committee to discuss whether constitutional amendment was necessary.Footnote ¹⁶ Yet, even at this stage the government was unwilling to pass a constitutional amendment.Footnote ¹⁷ Only upon further pressure did the committee finally prepare proposals for constitutional amendment.Footnote ¹⁸ Still, the constitutional amendments they were contemplating were only relatively minor revisions to the Meiji Constitution.Footnote ¹⁹

When a draft of the constitution that the committee was discussing was leaked and reported by the press,Footnote ²⁰ the occupation forces realized that any amendments eventually proposed by the committee would be insufficient.Footnote ²¹ As a result, the occupation forces decided to make their own draft and hand it over to the Japanese government for further consideration.Footnote ²² Therefore, when both parties met to discuss the proposal the Japanese government had submitted, the Japanese officials were stunned to receive a totally different draft made by the occupation forces.Footnote ²³

Although the occupation forces did not force the Japanese government to enact the draft as it was, remarks made during the meeting were intimidating enough for the government to accept it.Footnote ²⁴ Courtney Whitney, chief of the government section at GHQ, who was responsible for constitutional reform, pointed out that MacArthur had defended the Japanese Emperor against possible prosecution as a war criminal, and he suggested that it would be best for the Japanese government to support the Emperor by accepting the draft.Footnote ²⁵ The Japanese officials took this remark as a threat to prosecute the Emperor as a war criminal should they decide to reject the draft.Footnote ²⁶ Instead of refusing the provided draft, therefore, the Japanese government decided to accept it and try to soften or weaken the implications of the draft. Although the occupation forces were prepared to accept minor revisions, they had no intention of accepting fundamental changes to the draft. Eventually, the Japanese government managed to make minor revisions to the draft, proceeded to create its own official draft based on this draft,Footnote ²⁷ and started the constitutional amendment process. Finally, using the amendment provision of the Meiji Constitution, the 1946 Constitution of Japan was enacted.Footnote ²⁸

Based on the abovementioned process of enactment, conservative Japanese people believe that the Constitution of Japan is a constitution forced upon the Japanese people.Footnote ²⁹ This is the reason why they want to enact a new constitution based upon the free and voluntary will of the people or, at least, to make fundamental revisions.

B Constitution of Japan

The Constitution of Japan’s preamble presently states:

It is clear that the Constitution was enacted by ‘[w]e, the Japanese people’ and not by the Emperor. Article 1 also declares that sovereign power resides with the people.Footnote ³¹ The Emperor, who used to hold all government powers in Japan under the Meiji Constitution, is now a symbol of the state and represents the unity of the people,Footnote ³² and does not have any political power.Footnote ³³

Article 9 of the Constitution also renounces war as a sovereign rightFootnote ³⁴ and prohibits the maintenance of armed forces.Footnote ³⁵ Together with its commitment in the preamble to ‘the right to live in peace’,Footnote ³⁶ this pacifism clause came to be viewed as one of the fundamental principles of the Constitution. Many believed that Article 9 prohibited the maintenance of armed forces even for the purpose of defending Japan against foreign invasion. As a result, although the government established the Self Defense Forces (SDF), it is unclear whether the SDF are justified under Article 9. Moreover, since the SDF have been proclaimed as the minimum force necessary to defend Japan, there is a strict limitation on what they can do. Consequently, the SDF’s ability to participate in international peacekeeping missions has been seriously restricted.

The Constitution of Japan has an elaborate bill of rights. It protects individual rights as ‘fundamental human rights’, and such protection is indeed viewed as one of the fundamental principles of the Constitution. The necessity of protecting fundamental human rights was already a policy of the occupation forcesFootnote ³⁷ and was embodied in one of the three fundamental principles contained within the notes prepared by MacArthur for the occupation forces’ draft.Footnote ³⁸ The idea of ‘fundamental human rights’ was rooted in the natural law philosophy that saw a resurgence after World War IIFootnote ³⁹ and was consistent with the position found in the Universal Declaration of Human RightsFootnote ⁴⁰ that every person has certain universal human rights. Indeed, the very notion of ‘fundamental human rights’ itself was a clear manifestation of the universal nature of human rights.

Article 11 reflects this understanding. It declares that ‘[t]he people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights’.Footnote ⁴¹ Moreover, Article 97 states that ‘[t]he fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate’.Footnote ⁴² Therefore, unlike the rights of subjects under the Meiji Constitution, fundamental human rights are conferred upon every individual as natural rights that existed before the enactment of the Constitution. They are universal and inherent to all persons as human beings.Footnote ⁴³

Moreover, the declaration that ‘[a]ll of the people shall be respected as individuals’ in Article 13Footnote ⁴⁴ prompted the view that the Constitution of Japan placed individuals ahead of the state or society, a total departure from the past when members of the society had to sacrifice themselves for the state or for society. Individualism has been viewed as a guiding principle of the Constitution. Furthermore, respect for the individual has been viewed as mandating respect for the human dignity of all individuals, thus placing human dignity as the highest value in the new constitution.Footnote ⁴⁵

The protection of fundamental human rights does not carry any specific limitation within its protection.Footnote ⁴⁶ However, Article 12 states that ‘[t]he freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare’.Footnote ⁴⁷ Article 13 further states that the people’s ‘right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs’.Footnote ⁴⁸ Although the Supreme Court of Japan has invoked these two articles so as to allow the government to restrict fundamental human rights in order to protect public welfare,Footnote ⁴⁹ many people believe that fundamental human rights should never be restricted merely for the benefit of society.

The protection of fundamental human rights is also extremely comprehensive and strong. Following its commitment to individualism and human dignity in Article 13, the Constitution of Japan protects religious freedomFootnote ⁵⁰ and mandates the separation of religion and the state under Article 20. It prohibits religious organizations from receiving any privileges from the State or exercising any political authority, and it prohibits the government from providing religious education or engaging in ‘any other religious activity’.Footnote ⁵¹ Under the Meiji Constitution, religious freedom was guaranteed but was subject to any obligations that a subject owed to the Emperor.Footnote ⁵² Shinto, a religion native to Japan, was regarded not as a religion but as an obligation owed by subjects to the Emperor because the Emperor was not only sovereign but also the highest religious figure in Shinto. Therefore, the people did not have the freedom not to believe in Shinto. The government treated all Shinto shrines as public institutions and Shinto priests as public servants. It structured the entire Shinto organization to support the Emperor, including any military action, which was conducted in the name of the Emperor.Footnote ⁵³ The occupation forces believed that this strong state support for Shinto was one of the reasons for the rise of extreme militarism in Japan. For this reason, they banned any and all government support for Shinto.Footnote ⁵⁴ This historical decision was crystallized in the constitution as the guarantee of religious freedom and separation of religion and the state.

The Constitution also unconditionally protects freedom of expression under Article 21.Footnote ⁵⁵ Under the Meiji Constitution, freedom of expression was subject to various restrictions. Some of the most vigorously policed expressions included insults to the Emperor and attacks on the fundamental structure of the government headed by the Emperor.Footnote ⁵⁶ But all expression, no matter how minor, which were viewed by the government to be questioning the government, came to be impermissible.Footnote ⁵⁷ Comprehensive censorship was also established to make sure that no newspaper or publisher could publish any illegal content.Footnote ⁵⁸ Any assembly or association deemed threatening by the government was suppressed by the government.Footnote ⁵⁹ The modern protection of freedom of expression included in the Constitution is meant to prevent such restrictions.

Furthermore, under Article 14, the Constitution takes a strong stance on the right to equality.Footnote ⁶⁰ The Constitution also mandates that family law be based on the ‘individual dignity and the essential equality of the sexes’ in Article 24.Footnote ⁶¹ Under the Meiji Constitution, family law was built upon the notion of the ie (the house). The house-master was granted great power over all other members of the house.Footnote ⁶² Women were deprived of the power to manage property and were subject to the control of the house-master, who was usually their father or husband. Women were often not allowed to marry freely, not allowed equal access to education opportunities, and were often forced to work in accordance to the decision of the house-master. Article 24 appears to be included in order to remove all such discriminatory treatment against women.

The Constitution of Japan declares itself to be ‘the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity’.Footnote ⁶³ Therefore, even a statute passed by the Diet, the national legislature, cannot infringe upon fundamental human rights protected by the Constitution. The Constitution also specifically accepts the system of judicial review by stipulating that ‘[t]he Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act’.Footnote ⁶⁴ The Supreme Court of Japan can thus review the constitutionality of any statute and strike it down as unconstitutional and void if it infringes upon fundamental human rights. Moreover, the Constitution of Japan is designed to place limits on government powers. Therefore, it provides that ‘[t]he Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution’Footnote ⁶⁵ but it does not require the people themselves to abide by the Constitution.Footnote ⁶⁶ Seemingly, the Constitution exists for the protection of fundamental human rights and not for the imposition of obligations upon the people.

C What is Wrong with the Constitution of Japan?

The LDP and the Japanese conservatives are also deeply dissatisfied with the contents of the Constitution. First, many complain that the text of the Constitution reads like a direct translation from English to Japanese – reflective of the origin of the draft.Footnote ⁶⁷ Critics have also argued that the language of the Constitution is not sufficiently elegant or poetic within the Japanese tradition.Footnote ⁶⁸

Second, they claim that the preamble lacks reference to the long history and tradition of Japan.Footnote ⁶⁹ The conservative think tank Nippon Kaigi (Japan Conference) criticized the current constitution for ignoring the tradition of Japan and for portraying a self-deprecating version of history, by accepting unfounded blame for so-called atrocities allegedly committed by the Japanese military forces during the war and for denying the achievement of the Meiji era, which resulted in a loss of faith domestically and a loss of respect and trust internationally.Footnote ⁷⁰ Because of this, the Japan Conference suggested that the new preamble should state that in pursuing the ‘vision of the state’, the government should be informed by historical traditions.Footnote ⁷¹ The Japan Conference explained that the Japanese have historically aspired for harmony among fellow citizens, recognized the co-existence of diverse values, absorbed and accepted foreign culture while respecting traditions, created a unique culture that emphasizes co-existing with nature, and developed a country through the cooperation of the people and the Emperor together. It thus argued that the Constitution should state that the people of Japan enacted the Constitution based on the unique qualities of Japan in order to build upon the history and spirit of constitutionalism that has been developing since the Meiji era and to create a new country where citizens have a deep understanding of their responsibility as members of society. It also argued that this should be done while respecting the liberty and rights of the people and also fulfilling the international responsibility to contribute to international peace and co-existence.Footnote ⁷²

Third, the LDP and many other conservative people criticized the Constitution for stripping the Emperor of his high status and power. They claim that it is necessary to clarify the status of the Emperor as the head of state.Footnote ⁷³ Moreover, they criticized the renunciation of war and the ban on armed forces found in Article 9 as too idealistic and devoid of a realistic understanding of international politics. The LDP argues that it prevents Japan from having armed forces to defend itself against a foreign invasion.Footnote ⁷⁴ Many also are critical of Article 9 because it prevents Japan from being able to fully participate in international peacekeeping missions.Footnote ⁷⁵ Moreover, critics are dissatisfied with the current constitution since there is no provision which would allow the government to take emergency measures during a crisis.Footnote ⁷⁶

Fourth, the LDP criticizes the fundamental human rights provisions for over-emphasizing liberty and rights, while staying silent on the expectations and responsibilities of members of the community. They thus criticize the Constitution for failing to impose on citizens the responsibility to respect each other and the social order.Footnote ⁷⁷ There are also other commentators who criticize the protection of fundamental human rights for its alleged overemphasis on individuals,Footnote ⁷⁸ with little regard for social responsibilities. They also criticize the Constitution for the difficulty of placing limitations on individual rights. The Japan Conference thus argued that achieving an appropriate balance between human rights and public welfare would require the Constitution to protect human rights (as it does), but also to have the Constitution allow the government restrictions on rights if such rights pose a threat to public welfare. They argue that individuals should exercise their human rights with self-restraint and responsibility.Footnote ⁷⁹ They point out, however, that under the current Constitution it is unclear what circumstances would justify restrictions on human rights, and as a result there may be some difficulties in enforcing the restrictions.Footnote ⁸⁰ The absence of constitutional protection for the family and the omission of a provision that dictates respect for the family have also drawn criticism.Footnote ⁸¹ Indeed, critics are unhappy to witness the unraveling of family ties in the wake of increased assertions of individual freedoms. Many also criticize the Constitution for not imposing more duties and obligations on its citizens, especially the lack of an obligation to defend the country.Footnote ⁸²

Fifth, many criticize the Constitution for not including some ‘new rights’.Footnote ⁸³ These include the right to enjoy the environment (ie, environmental rights), the right to know (ie, the right of access to government information), the right to privacy, the right of access to mass media, rights of crime victims, intellectual property rights, and the right to a dignified life.Footnote ⁸⁴

Finally, many point out the fact that the Constitution of Japan has not been amended for seventy years since its enactment, which has resulted in many discrepancies between the text of the Constitution and its enforcement.Footnote ⁸⁵ They thus argue that the Constitution must be updated.

D Past Attempts to Revise the Constitution

The Constitution of Japan was enacted on 3 November 1946, and it took effect on 3 May 1947. The government actively defended the Constitution during the enactment process and made every effort to praise and publicize it after enactment. MacArthur gave Prime Minister Shigeru Yoshida an opportunity to reconsider the Constitution after one year. As nobody called for reconsideration, Yoshida decided not to revise the Constitution.Footnote ⁸⁶

Japan successfully concluded the Peace Treaty of San Francisco in 1951,Footnote ⁸⁷ marking the end of the occupation. Shortly after, the frustration of conservative politicians surfaced, with vocal calls for the enactment of a new constitution or, alternatively, radical changes to the present one. Two conservative parties joined together in 1955 to form the LDP, with its primary party goal to answer these calls. However, a constitutional amendment must be approved by a two-thirds majority in both Houses of the Diet, and subsequently approved by majority vote in a public referendum.Footnote ⁸⁸ Despite their success in the 1955 election, the LDP failed to win the necessary two-thirds of the seats in both houses to initiate a constitutional amendment. Ever since then, although the LDP has almost always formed the government and pushed for constitutional amendments, it has consistently failed to obtain a two-thirds majority in both houses. During the 1980s, therefore, the prospect of constitutional amendment seemed almost impossible and the call for constitutional amendment was seen as little more than lip-service with little hope of realization.

In the 1990s, however, the tide suddenly turned in favour of a constitutional amendment. Despite the Japanese government’s commitment to spend 9 billion USD to support the multi-national forces led by the United States to aid Kuwait during the Gulf War, Japan’s contribution was criticized as too small because of its failure to send troops.Footnote ⁸⁹ In response, many came to support a constitutional amendment that would allow the SDF to participate in international peacekeeping missions more actively. People rushed to propose various constitutional amendments. The Yomiuri Newspaper, which has the largest circulation in Japan, published its draft of a new constitution in 2004.Footnote ⁹⁰ In 2005, the LDP officially proposed a draft of a new constitution.Footnote ⁹¹ In 2007, the government enacted a statute detailing the framework for the referendum necessary to pass a constitutional amendment,Footnote ⁹² established the commission on constitutional amendment in both houses of the Diet, and started discussions on constitutional amendment.Footnote ⁹³

Although the LDP lost an election in 2009 to its rival, the Democratic Party of Japan (DPJ), it bounced back in 2012 to capture the government in a landslide victory with its coalition partner, the Kōmei Party.Footnote ⁹⁴ With the inauguration of Prime Minister Shinzo Abe, the LDP strongly endorsed constitutional amendment, with its 2012 draft of constitutional amendments published before the election.Footnote ⁹⁵ Then, with a critical victory in the 2016 House of Councillors election, the LDP coalition finally obtained a sufficient number of seats in both houses to initiate the constitutional amendment process.Footnote ⁹⁶ With the Japanese government likely to begin the long-awaited first constitutional amendment procedure, the LDP’s dream might finally come true.

So far, most observers have focused their attention on the possible amendments to the pacifism clause and Article 9.Footnote ⁹⁷ However, possible amendments to the fundamental human rights provisions are no less significant, as such amendments run the risk of undermining the protection of individual rights.Footnote ⁹⁸

A Concept of Fundamental Human Rights and its Protection Scheme

What kinds of constitutional amendments have the LDP proposed for the bill of rights? How does the LDP want to change the constitutional bill of rights provisions? In order to understand the historical development and the current position of the LDP, it is necessary to examine both the 2005 and the 2012 drafts, as well as previous discussions within the LDP. Also, in order to place the LDP’s position appropriately within the context of the various conservative forces in Japan, it is also necessary to look at the drafts of other influential conservative organizations.

The LDP intends to maintain the fundamental human rights protections in the Constitution, albeit within the context of a different understanding of Japanese society as laid down in the proposed preamble. While the preamble of the 2005 draft declares the continued acceptance of democracy, liberalism, and respect for fundamental human rights as ‘unchanging values’, it also states that Japanese citizens ‘share the responsibility to support and defend the country and society they belong to by themselves with affection, sense of responsibility and strong spirit, attempt to develop the liberal, fair and vibrant society and realization of national welfare, and emphasize the facilitation of education, creation of culture and development of local self-governance’.Footnote ⁹⁹

Similarly, the preamble of the 2012 draft states that ‘Japan is a nation headed by the Emperor as a symbol of the integration of the nation, having a long history and unique culture’.Footnote ¹⁰⁰ It also declares that the citizens of Japan intend ‘to defend the country and homeland with honour and a strong spirit; and, while respecting fundamental human rights, to respect harmony and to create the nation by helping one another through the family and the society as a whole’.Footnote ¹⁰¹ It further reveals a commitment to ‘take liberty and discipline seriously, facilitate education and scientific technology while defending our beautiful homeland and natural environment, and promote the development of the country through vibrant economic activity’.Footnote ¹⁰² Moreover, it concludes by stating that ‘Japanese citizens hereby enact this constitution in order to hand over the good tradition and our country to our off-springs forever’.Footnote ¹⁰³

The LDP’s questions and answers on the draft amendments (LDP Q&A), published to provide background information on the 2012 draft, points out that the preamble should be based on the ‘history, tradition, and culture of our country’, something which the current preamble has failed to do.Footnote ¹⁰⁴ The reference to the respect for harmony reflects the first principle of the Seventeen-Article Constitution, Japan’s first constitution written in 604 AD by Prince Shotoku. This constitution, containing moral imperatives for public officials rather than legal restrictions on government powers, mandated that harmony needed to be respected.Footnote ¹⁰⁵ This first principle is often regarded as imperative to Japanese society.

These proposals are consistent with other constitutional amendment proposals by other conservative groups such as the Japan Conference, which insists on the enactment of a constitution based on ‘our tradition running through eternal history’.Footnote ¹⁰⁶ The Yomiuri Newspaper draft similarly declared in its preamble that ‘the Japanese people shall commit to succeed the long history and tradition of the nation, defend the beautiful homeland and cultural heritage, promote cultural and academic advancement by cultivating them in the future, and build a highly creative nation’.Footnote ¹⁰⁷ The 2013 draft of Sankei Newspaper, another conservative newspaper, similarly declared that ‘the state of Japan has an eternal history following its ancestors and is a constitutional country headed by the Emperor’.Footnote ¹⁰⁸ It also provides:

It further declares that ‘the Japanese citizens recognize the existence of various value perspectives and produce the inherent traditional culture that accepts the novelty of, and cooperation with, different cultures’.Footnote ¹¹⁰ Apparently, the Constitution should be designed to follow these traditions.

B Different Understanding of Fundamental Human Rights

While the 2005 draft did not propose any significant changes to Article 11, the 2012 draft proposed to change the nature of fundamental human rights protections, in that it would no longer declare that they were conferred as inviolable and eternal rights to current and future citizens. Instead, the Constitution would simply state that such rights were inviolable and eternal.Footnote ¹¹¹ It also would remove Article 97 in the chapter on the supremacy of the Constitution, which declared that fundamental human rights are conferred on citizens.Footnote ¹¹²

The LDP Q&A explains the overall policy of the new draft as follows:

Therefore, according to the LDP, the protection of fundamental human rights is not universal but instead is rooted in the history, tradition, and culture of Japan. These fundamental human rights are not something granted or conferred. This was a reason why the LDP wanted to remove language in Article 11 that suggests human rights are conferred, although the LDP still views human rights as natural rights inherent to all citizens as human beings.Footnote ¹¹⁴ It also justifies the removal of Article 97 on grounds of redundancy, given the existence of Article 11.Footnote ¹¹⁵

However, many suspect that the real reason for the revision of Article 11 and the removal of Article 97 is to abrogate the Constitution’s strong commitment to the protection of fundamental human rights — especially its commitment to the universal norm of fundamental human rights.Footnote ¹¹⁶

Additionally, the 2012 draft would revise Article 13 to declare that all citizens are to be respected as ‘persons’ instead of as ‘individuals’.Footnote ¹¹⁷ Other conservative proposals also suggest similar revisions.Footnote ¹¹⁸ Of course, the implication is to deny the primacy of individuals; instead, the state and society are placed ahead of individual members of society. It would thus completely change the basic philosophy of the protection of individual rights.Footnote ¹¹⁹

C Limitation on Rights

With respect to limitations on individual rights, the 2005 draft would have revised Article 12 to require citizens to exercise their rights in a manner that does not violate the ‘public interest and public order … mindful that liberty and rights accompany responsibility and obligations,’ thus replacing ‘public welfare’ with ‘public interest and public order’.Footnote ¹²⁰ The 2012 draft also followed this pattern.Footnote ¹²¹

The 2005 draft also revised Article 13 to mandate respect for fundamental human rights so long as it does not violate ‘public interest and public order’.Footnote ¹²² The 2012 draft would also revise Article 13 to demand the greatest respect for a citizen’s right to life, liberty, and the pursuit of happiness, so long as ‘it does not violate public interest and public order’, instead of ‘public welfare’, as it was worded originally.Footnote ¹²³

The LDP Q&A succinctly explains that ‘public welfare’ is ambiguous and has been viewed by some as allowing the restriction on fundamental human rights only when they conflict with another’s human rights. The LDP wanted to clarify that there was no such limitation, and human rights could be restricted whenever public interest and public order were at risk.Footnote ¹²⁴ This concept of ‘public order’ also includes the ‘order of the society’. The LDP Q&A explains that it is natural that one should not frustrate the social life of others when exercising human rights. The new draft was meant to make this natural limit clear.Footnote ¹²⁵

Other conservative proposals show a similar inclination. The Yomiuri Newspaper draft would revise Article 12 by mandating citizens to respect the liberty and rights of others, keeping balance with ‘national security, public order, a national healthy environment, and other public interests’, as well as mandating citizens not to abuse their rights.Footnote ¹²⁶ This draft also replaces ‘public welfare’ in Article 13 with ‘public interest’.Footnote ¹²⁷ The Sankei Newspaper draft declares:

It appears that these amendments were meant to clarify that fundamental human rights could be restricted for the benefit of the public, thereby making it much easier for the government to limit the exercise of fundamental human rights.Footnote ¹²⁹

D Addition of New Rights

The LDP drafts and other conservative drafts were partly concerned with introducing new rights,Footnote ¹³⁰ in addition to strengthening the protection of some existing rights.Footnote ¹³¹ For instance, the 2005 draft proposed to add the right to privacy of information by stating that ‘no one should be allowed to obtain personal information improperly, retain it, or to use it.’Footnote ¹³² The 2012 draft also endorses this privacy right.Footnote ¹³³

The 2005 draft also proposed to add a provision that reads ‘the State has a responsibility to explain all governmental actions to the citizens’.Footnote ¹³⁴ The 2012 draft also endorsed the inclusion of this provision.Footnote ¹³⁵ This proposal was in response to the argument for the right to know or access government information.

There have been many calls for the addition of a right to enjoy the environment. This right was first proposed in response to government projects destroying or threatening to destroy the environment. This led to the 2005 draft proposing a new provision that would obligate the government to preserve the environment: ‘the state must strive to preserve the environment for citizens to enjoy it’.Footnote ¹³⁶ The 2012 draft had a similar endorsement although it added a reference to ‘cooperation of the citizens’.Footnote ¹³⁷

The current constitution does not have any provisions protecting victims of crimes. Since the current constitution was enacted, countries around the world have increased rights protection for crime victims. The LDP has adopted a tough-against-crime attitude and has been active in promoting the rights of victims. As a result, the 2005 draft proposed to provide that ‘the victims of crime have a right to receive the treatment their dignity deserves’.Footnote ¹³⁸ The 2012 draft also proposed that ‘the state must respect human rights and be respectful in the treatment of crime victims and their families’.Footnote ¹³⁹

The LDP Q&A explains that the obligation to disclose government information, the obligation to preserve the environment, and the obligation to respect crime victims are added as responsibilities of the government, rather than rights of individuals because they are not widely accepted as specific enough to be recognized as individual rights.Footnote ¹⁴⁰ This would mean that individual citizens would not be able to invoke these rights before the courts when challenging governmental actions.

The addition of new rights is widely supported by other parties as well. The Yomiuri Newspaper draft also supported the addition of personality rights,Footnote ¹⁴¹ environmental rights,Footnote ¹⁴² victim rights,Footnote ¹⁴³ and the right of access to government information.Footnote ¹⁴⁴ The Sankei Newspaper draft would also support the addition of the right to privacy,Footnote ¹⁴⁵ the right of access to government information,Footnote ¹⁴⁶ environmental rights,Footnote ¹⁴⁷ and the rights of crime victims.Footnote ¹⁴⁸

E Freedom of Expression

The LDP has been frustrated by the arguments made against restrictions on freedom of expression. The 2005 draft did not significantly revise Article 21.Footnote ¹⁴⁹ However, the 2012 draft attempted to make it much easier for the government to restrict freedom of expression by proposing to add Article 21(2) which states that ‘notwithstanding the preceding section, no one should be allowed to engage in activity that is intended to harm public interest or public order or create an association for the same purpose’.Footnote ¹⁵⁰ By allowing the government to restrict freedom of expression by merely invoking the ‘public interest’ and ‘public order’ rather than ‘public welfare’, the provision was clearly intended to broaden its ability to restrict freedom of expression.Footnote ¹⁵¹

The LDP Q&A explains that this revision is necessary, citing the difficulty of applying the Anti-Subversive Activities Act to Aum Shinrikyo.Footnote ¹⁵² Additionally, the draft only permits restricting activities or the creation of associations intended to harm public interest and public order. It asserts that the revision would not impose any other restrictions on freedom of expression.Footnote ¹⁵³ However, the proposed amendment to Article 21 would surely allow far more extensive restrictions on freedom of expression than the mere denial of protection to Aum Shinrikyo.

F Religious Freedom

The LDP drafts were also meant to revise provisions on religious freedom, specifically the separation of religion and the state. The 2005 draft revised Article 20(3) to prohibit the state and local government from participating in:

The 2012 draft further revised Article 20(1) to prohibit the state from granting privileges to religious organizations, instead of prohibiting religious organizations from benefiting from privileges granted by the state or exercising any political power as the current provision provides.Footnote ¹⁵⁵ It also revised Article 20(3) in the following manner: ‘the state, local government, or other public organizations should not engage in education for a particular religion or other religious activities, except for those used in social ceremonies or customary practices’.Footnote ¹⁵⁶

As mentioned above,Footnote ¹⁵⁷ Shinto was granted a special status under the Meiji Constitution. After the occupation forces banned the government from endorsing Shinto and mandated the separation of religion and the state via the Constitution of Japan, the government has been unable to support Shinto, like any other religion. However, because of Shinto’s widespread influence, it has been difficult for the government to stay away from it entirely. Moreover, the LDP government, supported by the Shinto organization, wanted to re-establish the close relationship between the government and Shinto. The Supreme Court of Japan has allowed some kinds of relationships between Shinto and the government as long as the relationship remained within socially acceptable limits, thus allowing the government to engage in social customs such as the Shinto-style ground-breaking ceremony.Footnote ¹⁵⁸ However, the Supreme Court of Japan has struck down some government connections with Shinto, such as government payment for prayers at Shinto shrines.Footnote ¹⁵⁹ The LDP has criticized these decisions of the Supreme Court of Japan that struck down such practices for undermining the traditional connection between Shinto and the government.

The LDP Q&A explains that this amendment was meant to clarify the permissible connection between religion and the state based on guidance from the decisions of the Supreme Court.Footnote ¹⁶⁰ However, it suggested that this amendment would also allow the government to pay for prayers at the Shinto shrines with tax money.Footnote ¹⁶¹ Therefore, it is apparent that the LDP revisions are meant to widen the ambit of permissible relationships between the government and Shinto.Footnote ¹⁶²

G Family

The LDP has expressed deep dissatisfaction with how the Constitution of Japan views families. It thus attempted to restore the order within the family in the new constitution. While the LDP did not propose any significant revisions to Article 24 in the 2005 draft, the 2012 draft proposed to add Article 24(1), which provides that the ‘[f]amily needs to be respected as a natural and foundational unit of society. Members of the family must help each other’.Footnote ¹⁶³ As the text of this proposed amendment suggests, in addition to mandating respect for the family as the foundational unit of society, it would also add a new obligation for family members to help each other. Moreover, it would change the current text that states that ‘[m]arriage shall be based only on the mutual consent of both sexes’, by omitting the word ‘only’.Footnote ¹⁶⁴

The LDP Q&A explains that Article 24(1) is meant to address the concern that family ties have been weakening in recent years, despite the fact that the family is a fundamental element of society.Footnote ¹⁶⁵ Along with the LDP, most conservative groups – including the Japan Conference,Footnote ¹⁶⁶ the Yomiuri Newspaper,Footnote ¹⁶⁷ and the Sankei NewspaperFootnote ¹⁶⁸ – believe in the necessity of provisions mandating respect for the family.The LDP Q&A also explains that the proposed obligation to care for each other is simply a moral obligation and is not meant to allow the government to interfere with family structure.Footnote ¹⁶⁹ Nonetheless, it is important to note that there is no definition of ‘family’ within this proposed constitution. Since the LDP draft relies on the long tradition and history of Japan, one can likely assume that ‘family’ refers to a traditional family – a heterosexual legal marriage sharing the same family name.

Many people fear that this amendment would prevent the existence of more diverse forms of family structures. Moreover, by making the family the foundational unit instead of the individual, the amendment might resurrect the pre-war ie system. It is even possible that this change could lead to the Emperor once again being placed at the top of society, as the ultimate father of Japan.Footnote ¹⁷⁰ Furthermore, it is obvious that marriage needs to be based on the mutual consent of both partners, but by removing ‘only’ from the current text, the possibility arises that parents and other members of the family might be able to have a say on the matter, and possibly even possess the right to approve or reject the marriages of their children.Footnote ¹⁷¹

A The Vision of Japanese Society

It is apparent that the LDP drafts are premised upon a completely different vision of what Japanese society should look like under the constitution. The LDP’s drafts clarify that Japanese society is headed by the Emperor, and propose to amend the Constitution to declare that the Emperor is the head of state.Footnote ¹⁷² This position is consistent with the position of other conservative organizations such as the Japan Conference, which proposed that the Constitution needed to clearly state that Japan is a constitutional monarchy, with the Emperor as the head of the country, and as a symbol of the eternality of Japan as well as the integration of the people of Japan.Footnote ¹⁷³ The Sankei Newspaper draft expresses similar ideas, as it also proposes to clarify that Japan is a country led by the EmperorFootnote ¹⁷⁴ and that ‘Japan is a constitutional monarchy with the Emperor as a symbol of eternality of the nation as well as the integration of the nation’.Footnote ¹⁷⁵

The commitment to follow history and tradition has also led to the acknowledgment of the public’s historical responsibility to defend their community and homeland with honour and a strong spirit.Footnote ¹⁷⁶ As a result, many conservative critics argue that the Constitution should declare that citizens have a responsibility or obligation to defend Japan.Footnote ¹⁷⁷ Naturally, this position leads conservative people to also support the creation of armed forces capable of defending the country from foreign attacks. Thus, the LDP’s draft would permit Japan to form an armed force called the ‘Self Defense Forces’, the existence of which would require a substantial amendment to Article 9.Footnote ¹⁷⁸ Other conservative proposals are generally consistent in calling for the revision of this so-called pacifism clause.Footnote ¹⁷⁹ Additionally, the desire to commit to international peacekeeping operations beyond non-military contributions requires most conservative proposals to allow the SDF to take a more active military role that goes beyond mere self defence, by amending Article 9.Footnote ¹⁸⁰

Judging from the commitment of the LDP and other conservative people to clarify the high status of the Emperor, to establish an obligation to defend the country, and to permit the extended use of the armed forces, it seems apparent that these proposals are premised on the belief that the Meiji era was a golden era to be followed; on the other hand, the changes to the Constitution following World War II were an intolerable and unjustifiable departure from tradition. These conservative proposals are designed to return Japanese society to the Meiji era.

B The Vision of Individual Rights and the Role of the Constitution

In addition to changing the vision of Japanese society, the proposed amendments would also radically change the vision of individual rights that exists under the current constitution. The Constitution of Japan is based on the notion of the universality of human rights, reflecting the international commitment to the protection of human rights after the end of World War II.Footnote ¹⁸¹ By denying this universality and replacing it with history and tradition as the basis for human rights protection, it appears that the LDP is committed to a completely different vision of individual rights. While there has of course been on-going debates on the universality of human rights,Footnote ¹⁸² most people believe that the universality of human rights is the integral foundation of a liberal democracy. Therefore, this amendment would at least radically alter the way individual rights are viewed, and might even undermine the foundation of individual rights protection.

There is also a striking difference between the role of the current Constitution and the role that the LDP-drafted Constitution would play. The Constitution of Japan is designed to place limits on the government. On the other hand, the primary role of the LDP’s proposed constitution would be to impose obligations on citizens.Footnote ¹⁸³ The LDP Q&A insists that there is nothing wrong with imposing some obligations on citizens.Footnote ¹⁸⁴ The LDP asserts that in order to maintain society and the state, certain obligations must be included in the Constitution.Footnote ¹⁸⁵

On top of the aforementioned obligations, the 2012 draft also proposes the addition of Article 102(1), which provides that all citizens must respect the Constitution.’Footnote ¹⁸⁶ This is a fundamental change. The current constitution only requires public officials to respect it.Footnote ¹⁸⁷ As the Constitution was enacted by the people, it was believed that there should not be any obligation for the people themselves to obey it. However, the LDP takes the opposing view that the Constitution must be obeyed by the people just like any other law.Footnote ¹⁸⁸ Although the LDP’s proposed obligation is merely declaratory and carries no legal effect,Footnote ¹⁸⁹ it is indicative of an entirely different understanding of the Constitution. Other conservative proposals are consistent in imposing an obligation on the people to observe the Constitution.Footnote ¹⁹⁰

Based on the LDP’s focus on including so many new obligations on the people and mandating the people to obey the constitution, it is clear that the LDP’s proposed constitution would not be a law enacted by the people to restrain the power of the government.Footnote ¹⁹¹ Rather, it would be a law to bind the people and ensure that they perform their obligations.

C Reflections on ‘Traditional Japanese Values’

The LDP and other conservative people rely heavily upon history and tradition, which can essentially be seen as relying on ‘traditional Japanese values’. It is, after all, the values cherished in traditional Japanese society – ‘traditional Japanese values’ – that they want to preserve and restore.

The focus on ‘traditional Japanese values’ is reminiscent of the concept of ‘Asian values’ emphasized by Mahathir Mohamad, Prime Minister of Malaysia from 1981–2003, and by Lee Kuan Yew, Prime Minister of Singapore from 1959–1990.Footnote ¹⁹² ‘Asian values’ are often advocated as a justification to place limits on the protection of individual rights in order to pursue the promotion of economic development or the preservation of public order.Footnote ¹⁹³ However, such arguments have been subject to various criticisms in the past.Footnote ¹⁹⁴

Although no one in Japan talks about ‘Asian values’, the LDP’s idea of ‘tradition’ sounds similar to ‘Asian values’. Even though they were not primarily invoked to promote economic development, ‘traditional Japanese values’ are seemingly intended to place limits on the protection of individual rights and to secure public order. The LDP appears to be ensuring that the public interest could outweigh individual rights through a revision of the fundamental rights provisions.Footnote ¹⁹⁵ As both theories have similar effects and objectives, it seems likely that there are also certain similarities in the justifications for them.

On the other hand, the fact that Japanese society is headed by the Emperor (whether symbolically or as the actual head of state) is a significant difference from other Asian countries. Moreover, the fact that the LDP wants to provide special support to Shinto may be another significant difference from other Asian countries. After all, although the LDP wishes to revise the principle of separation of religion and state in the constitution, the LDP expects the amendments to give Shinto, and Shinto alone, a closer connection with the government. Furthermore, the primary emphasis on ‘harmony’ – which stems from Prince Shotoku’s Seventeen-Article Constitution – as the most significant characteristic of Japanese society, could be viewed as a unique Japanese manifestation. These may be some of the main reasons why the LDP and other conservatives emphasize ‘traditional Japanese values’ and not ‘Asian values’.

In light of the LDP’s plan to revise Article 11, abolish Article 97, and omit the reference to individuals in Article 13, there can be no question that the strongest motivation for the LDP may indeed lie in its deep dissatisfaction with the concept of fundamental human rights itself and the idea that every human being must be respected as an individual. Both ideas are central to the protection of fundamental human rights. The LDP wants to repudiate the universality of the human rights protection and reject individualism as a primary principle, while emphasizing that every citizen, as a member of society, has responsibilities towards society. To the LDP, society is more important than the individual. This is perhaps the most apparent similarity between the ‘Asian values’ theory and the LDP’s argument for ‘traditional Japanese values’.

Having devoted so much focus to traditional Japanese values, however, it seems odd that no one has defined what exactly these ‘traditional Japanese values’ are. The LDP’s 2012 draft, for instance, never defines what is meant by the ‘inherent culture’ of Japan, or what qualifies as the ‘good tradition’ that should be followed. As a result, we are forced to speculate on what these ‘traditional Japanese values’ might be. This uncertainty can also be found in the proposals of other conservative groups. There is, however, at least one thing that we know. As we already saw, conservative people assume that the Meiji era was the period where these traditions were formulated. It is the tradition of this era that the LDP and other conservative politicians want to restore. What we can therefore see is that the call for ‘traditional Japanese values’ is nothing but an anachronistic nostalgia for the Meiji era.

What conservative people fail to see in this respect, is that Japan has a history spanning over two millennia filled with significant changes in society and government. The Meiji era is not the only source of Japanese tradition. While the Meiji Restoration brought significant changes in law, politics and culture, Japan’s rich culture and traditions clearly predated the Meiji Restoration. As a result, the Meiji tradition is naturally quite different from the traditions that existed before the Meiji Restoration. It is difficult to understand why only traditions after the Meiji Restoration should be defended, and not the older traditions. The logic of the LDP therefore seems to lack internal consistency, and it remains unclear whether the LDP and other conservative people would be able to explain why only the traditions from the Meiji era should be restored, and not traditions that existed prior to the Meiji Restoration.

Another point to consider is that the values that are being called ‘traditional Japanese values’ are actually quite modern since the Meiji Restoration occurred only roughly one hundred and fifty years ago. It is a tradition created by government elites rather than a tradition naturally developed by society over time. The image of Japanese society being governed by the Emperor, as envisioned by conservative people, is actually an image created by the Meiji government to justify the Emperor’s power after the Meiji Restoration. Prior to that, it is doubtful whether the Emperor actually governed Japan.Footnote ¹⁹⁶ Additionally, while many conservative people claim that the public has a responsibility to defend the country, such an obligation was only introduced by the Meiji government in connection to mandatory conscription. There was no such obligation before that time.Footnote ¹⁹⁷ This tradition, like many others, is not a long-standing tradition of Japan. It is simply a modern one.

Moreover, the LDP and other conservative people have failed to explain why such traditions deserve to be followed in the first place. For instance, as we already saw, the Meiji government established the family law system based on the supremacy of the ie, and with the ie being the most foundational building block of society. This ie system led to serious discrimination against women. In the 21^st century, it should almost go without saying that there is no reason to follow such a tradition.

Finally, one must question whether the LDP’s understanding of ‘traditional Japanese values’ is consistent with true ‘traditional Japanese values’. True ‘traditional Japanese values’ respect diversity and minority groups within Japanese society, and emphasize harmony. While the LDP’s proposal also acknowledges the concept of harmony, the concept of harmony was not used to force minority groups to assimilate, or to silence them.Footnote ¹⁹⁸ However, this is precisely what the LDP government wants to accomplish under the revised constitution. Therefore, the LDP’s insistence on ‘traditional Japanese values’ might actually destroy the true and long-standing ‘traditional Japanese values’.

Based on all of the aforementioned reasons, constitutional amendments based on ‘traditional Japanese values’ are unjustifiable. They would very likely undermine the very foundation of individual rights protection in Japan. These problems are the same ones which could be found in ‘Asian values’ theory. The LDP’s ‘traditional Japanese values’ theory, just like the ‘Asian values’ theory, would hardly justify what they are hoping to accomplish.