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Friday, Jan. 4, 2013

Wait out passions of the moment when touching up the Constitution


By LAWRENCE REPETA
Special to The Japan Times

Now that the Liberal Democratic Party and their allies have won a large majority in Japan's House of Representatives, the issue of constitutional revision is on the table.

The LDP published a "Draft Reform of the Constitution" (kenpo kaisei soan) only eight months ago, so the party's plan is clear. Most attention to potential changes to Japan's Constitution has focused on Article 9, in which Japan renounces war, but the LDP's Draft Reform includes much more.

From the perspective of this writer, there are two proposals that provide special cause for concern. The adoption of these two proposals would not only threaten the individual rights of the Japanese people; they would also significantly damage Japan's international reputation as a democratic society.

The first of these changes would make it easier to amend the Constitution. Article 96 of the Constitution requires that amendments be supported by a two-thirds vote of each House of the Diet. The LDP proposal would change this to require only a simple majority of each House. The current additional requirement of approval by a majority of the voters would remain unchanged.

Approval by a supermajority vote of the national legislature is a standard requirement in democratic constitutions around the world. The U.S. Constitution, for example, requires that amendments be approved by a two-thirds vote of each house of Congress and, in addition, by three-fourths of the states.

Advocates for such a high standard say that some individual rights — such as the rights to freedom of speech and freedom of religion — are so fundamental to the functioning of a free society and democratic government that they should not be subject to change by majority vote. They fear that public opinion may fluctuate sharply in times of stress and that temporary majorities may threaten fundamental rights.

One U.S. constitutional expert has written that "the goal is to ensure that the deliberative sense of the community will prevail over momentary passions."

Japanese voters recently displayed the potential for "momentary passions" by granting the Democratic Party of Japan a great victory in 2009 and then delivering an equally great victory to its adversary, the LDP, only three years later.

Whichever politicians or political parties control the Diet and whatever grand promises they offer, the Japanese people should be secure in the knowledge that protection for their individual rights cannot easily be taken away.

A separate proposal in the LDP's Draft Reform would recognize the exercise of constitutional rights only when they are exercised "in a manner that does not violate the public benefit and public order." The Draft Reform does not provide a definition for the phrase "public benefit and public order."

These are vague and undefined terms that can take on many different meanings. Zealous police and other government officials would be invited to elevate their own vision of "public order" over the rights of free speech, freedom of assembly and other individual rights that comprise the hallmark of an open, democratic society.

One central goal of democratic government is to allow everyone a wide range of free expression — not to require people to conform to some official version of "public order."

There are other problems with aspects of the LDP's Draft Reform, but the two discussed above provide clear warning that all proposals must be very carefully studied.

Japan's Constitution provides broad protections for fundamental human rights. These protections would be threatened by the kinds of changes proposed above.

It is important to remember that the creation of Japan's Constitution was not an isolated event; it was one strand of a much broader human rights movement that sought to reach every corner of the world. Japan's Constitution came into effect only two years after the founding of the United Nations and one year before the U.N. General Assembly adopted the Universal Declaration of Human Rights.

Some of the LDP's proposed amendments would create conflicts with the Universal Declaration and with Japan's obligations under the International Covenant on Civil and Political Rights and other international human rights treaties.

Individual rights declared in those documents are not subject to "public order" or other potentially arbitrary restrictions. If these changes are made, Japan may walk a different path from the world's major constitutional democracies.

Japan has prospered for more than six decades and has built a free society recognized throughout the world with a foundation in a constitution that is aligned with a shared global understanding of popular sovereignty and individual rights as expressed in the Universal Declaration of Human Rights and in international human rights treaties.

There must be a very thorough and open discussion of all issues before changes are made that may threaten this great achievement.

Lawrence Repeta, a Meiji University Faculty of Law professor, Tokyo, has also served as a lawyer, business executive and law professor in the United States. The primary focus of his advocacy and research is transparency in government. He is best known in Japan as the plaintiff in a landmark suit decided by the Supreme Court that opened Japan's courts to note-taking by courtroom spectators. His online articles are available at: www.freedominfo.org and elsewhere.


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