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Sunday, July 8, 2001

The Japanese Constitution gets a provocative look


By GERALD PAUL MCALINN
FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY, edited by Yoshio Higuchi. University of Tokyo Press, 2001, 368 pp., 8,000 yen.

A major stumbling block for Japan on its road to becoming a more influential member of the global community has been a profound absence of voice. Japanese politicians, commentators, academics and business leaders alike have largely failed to articulate for international consumption coherent self-assessments of their society.

To be sure, there is no shortage of domestic analysis and debate by, for and among the Japanese. It would be difficult indeed to point to a nation with a more active publishing industry. How then can we account for the almost deafening silence of these highly literate people on the global stage?

Perhaps it is the hyperactive nature of the domestic marketplace of ideas that leaves little room for debate at the international level. A more likely explanation is a reluctance to write in foreign languages, leaving many potential contributions lost to the language barrier.

This book, edited by Yoichi Higuchi, professor emeritus of Tokyo University, is a commendable effort to redress this deficiency. A pre-eminent constitutional law scholar, Higuchi has gathered 17 Japanese law and political science scholars for this provocative and unique work.

Their common purpose is, as Higuchi explains in the preface, to "stimulate exchanges of views on many important questions -- not the least, on the possibility and the difficulty of the 'adoption' of constitutionalism by non-Occidental cultures." Higuchi hits the mark expertly by isolating the fundamental issue underlying the current constitutional debate.

Written as short essays of 15 to 25 pages on a broad range of constitutional issues, the book is a page-turner leaving the reader wondering what new tidbit of information or insight lies ahead. Not every contribution hits the high target set by Higuchi in his preface, but the reader will learn much about the historical backdrop and contemporary debate over constitutional reform.

In the opening essay, Higuchi argues that Japan's acceptance of constitutionalism as a universal principle along with its stress on the rights of individuals is a model for nations desiring to forge "a synthesis of local tradition and imported legal concepts." By taking a trial-and-error approach, Japan has escaped the clutches of "Western cultural imperialism" and, ultimately, transcended it.

Higuchi's chapter is followed by an illuminating and more critical piece by Katsutoshi Takami tracing the role of tradition and religion as manifested in the emperor system under the Meiji Constitution. It was in Meiji that sovereignty was wrested from the shogunate and restored in the emperor, endowed with the power of divine will. The main goal of the present Constitution was to vest sovereignty in the people. Takami is not convinced that Japan has produced "autonomous citizens capable of bearing the responsibility of popular sovereignty."

He fears that unless Japanese develop a deeper sense of individuality, "the popular sovereignty outlined in the Constitution will not be engrained in the national consciousness, and the symbolic regicide that should have occurred in August 1945 will remain a fanciful illusion."

Toshihiro Yamauchi tackles the most controversial constitutional issue, namely, the "Renunciation of War" clause in Article 9. He contends that the right to live in peace is a fundamental human right including "in a broader sense the right to live and act peacefully without being deprived of freedom or property by war and military force."

He recognizes that pressures abound from conservatives to construe or to amend the Constitution so as to bring the pacifist norm of Article 9 more in line with political reality. He reviews a number of court decisions upholding the Japan-U.S. Security Treaty and evading the broader issue of the constitutionality of the Self-Defense Forces before concluding that "Article 9 stands at a crossroad; either it will disappear from the Constitution, or its normative power will be revivified."

Contributions by Yasuo Hasebe and Hidenori Tomatsu take on squarely the Supreme Court's failure to play an active role in formulating and refining constitutional doctrine.

Hasebe concerns himself with the rights of juridical persons, observing that "the Supreme Court has adopted the so-called "Bubun Shakai" (part-society) doctrine" under which society is partitioned into a multitude of collective entities, including companies, with the primary duty of regulating the lives of their individual members.

The Supreme Court defers to institutional decisions, private and public, because "in principle, courts should not intervene in internal matters of such part-societies, even if the internal conflicts take the form of legal disputes." Hasebe accurately observes that this doctrine guarantees the autonomy of social, political and economic subgroups at a high cost to individual rights.

Tomatsu comes at the same problem from the perspective of judicial restraint. He traces the Supreme Court's persistent reluctance to a fear of being ignored by the political apparatus. For example, Article 200 of the Criminal Code was declared unconstitutional in 1973, yet it was not deleted until 1995. Similarly, the Supreme Court has pronounced apportionment under the Election Law violative of the core principle of "one person/one vote" more than once but has not voided election results. Tomatsu accounts for these anomalies by asserting the top court's concern with "the Diet's ability to respond to its rulings."

Hasebe reports that the Supreme Court has held laws and government actions unconstitutional just seven times since 1947, while Tomatsu, in a wonderful understatement, says "no one can say that Japan's Supreme Court has ever made active judgments on constitutional issues."

Masayuki Uchino details the statutory and constitutional struggle for educational freedom in Japan.

After documenting how the prewar education system was used to support the deification of the emperor and then as an indoctrination tool for an increasingly militaristic and ultranationalist Japan, Uchino describes the efforts of the Occupation to break the central government lock on education. By 1948, a School Board Law was enacted creating local school boards with elected local residents.

The process of democratic reform was short-lived, coming to an end in 1956, when a new law replaced elected school board officials with appointees and put local boards under the Ministry of Education. Return to central control led to a myriad of ills, including the raging controversy over government approval and censorship of textbooks.

Uchino describes the process as being "quite rigid" with social studies books being "checked especially strictly, and from an ideological as well as educational viewpoint." He argues persuasively that Japan must break the "rightist inculcative and centralized governmental model" of education so that children will be free to learn "different constructions of knowledge."

Although it is not expressly stated, it can be surmised from the writings this book was conceived as a tribute to the long and influential career of Higuchi, which probably accounts for the peculiar decision to include one essay in French and one in German.

Nevertheless, the book makes a significant contribution to Western understanding of Japanese constitutional thought and is definitely worth reading. What Japanese scholars have to say about their five decades of experience with a Constitution imposed by external forces is informative.

It will, undoubtedly, be of paramount importance to readers from countries that face similar challenges as they emerge from the suffocation of central government control into the fresh air of constitutional democracy.

Gerald Paul McAlinn is a professor of law at Aoyama Gakuin University


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