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Tuesday, Jan. 22, 2013
THE FOREIGN ELEMENT
Fixing the much-admired, reviled Constitution — by breaking it
With Shinzo Abe having called Japan's current Constitution "pathetic" (mittomonai) just a few days before taking charge of a government established under it, constitutional amendment seems likely to be on the agenda of his second go as prime minister. This should not surprise anyone, since "fixing" the charter tainted with America and defeat has been a goal of conservatives since Japan regained its independence in 1952.
Despite controlling the levers of power for most of the period since, however, the Liberal Democratic Party (LDP) that Abe now heads has never been able to achieve the high threshold for initiating the amendment process: the approval of two-thirds of the members of both Diet houses. But now, having just obtained such a majority in the December House of Representatives elections, and with half the seats of the House of Councillors up for grabs this summer, constitutional change may finally be in reach of the LDP and its allies.
The LDP issued a comprehensive amendment proposal in April of last year, but Abe says he first wants to just tweak Article 96, which sets forth the amendment process. According to Abe, unless the threshold for amendment is lowered to a simple majority of both houses, even just "debating" change is impossible.
By "debate," Abe presumably means the national referendum the Constitution also requires for amendments to take effect. But perhaps he needn't worry: Considering he became prime minister through an election with one of the lowest voter turnouts in at least a generation, constitutional change in turn could well come about thanks to voter apathy rather than ideology or vision.
In fact, this could be what the LDP is counting on, though it may also help that the law establishing the referendum process seems designed to minimize actual public debate on amendments once they have cleared the Diet. Under the law (passed in 2007, the last time Abe was PM), the referendum can be held as soon as 60 days after the Diet approves the amendment, and must be held within 180 days (by contrast, the government typically gives itself at least six months — and sometimes a year or more — to implement legislation after it has been passed).
In addition, a wide range of people, including public servants and educators (including, apparently, university professors such as myself) are prohibited from engaging in activities that might affect the outcome of the referendum. Furthermore, in the two weeks immediately before the referendum, the law prohibits most broadcast advertising about the proposed amendments other than those prepared under a protocol controlled by two politicians: the speakers of the two Diet houses, which would have just approved the amendments.
Since one of the purposes of a constitution is to protect minorities from the "tyranny of the majority," Abe — by proposing to first make it subject to change by a series of simple majority votes — is essentially proposing to turn the charter into a "nonconstitution." And if the real barrier to amendment is pesky minority parties in the Diet rather than disinterested voters, then the multistep approach might have some appeal. After all, the full LDP amendment package contains some things that might be hard to get through any Diet.
Needless to say, the LDP would change the famous "no war" provisions to recognize a "national defense army" while giving the government the emergency powers needed to wield it in the event of wars or "internal unrest." Freedom of expression and association would not be sacrosanct if they harmed the public welfare or the precious Japanese "social order." Oh, and no more bothersome quibbling over the flag and the national anthem, since respecting both would become a constitutional obligation of all Japanese subjects — sorry, citizens.
In fairness, some of the proposed changes would simply remedy defects in the current charter or reflect what is already happening anyway. For example, making it clear that the Emperor is head of state (technically he is not) seems reasonable, as does the proposed change that would allow for multiyear national budgets and perhaps eliminate some of the frenzied, wasteful expenditures that seem to pop up near the end of every fiscal year.
Since the Constitution is likely to be in the news in the days to come and more people in Japan and abroad are likely to actually spend some time reading it, I would like to make my own humble proposal to the government for a much-needed constitutional change, which should come before anything else: Fix the English version of the current charter.
The first draft of the Constitution was prepared in about a week in February 1946 by the staff of U.S. Gen. Douglas MacArthur, supreme commander of the occupying allied forces. This draft was presented in English "for consideration" to the Japanese government, which was tasked with preparing a Japanese version. Both sides were working under tremendous time pressure, since MacArthur wanted to announce a "Japanese" constitutional initiative before other allied powers (some of whom wanted to hang Emperor Hirohito as a war criminal) could start to muck up the process. The end result of this process, which was both coercive and collaborative, was made public in April 1946.
The end result, the full text of which was then submitted to the Imperial Diet for deliberation and approval, was thus hardly created under ideal conditions. The foreign providence of the new Constitution was painfully obvious, despite the efforts of the Japanese drafters to hide it (including the revolutionary innovation of rendering the text in colloquial language rather than the classical Japanese then used to draft laws, some of which remain on the books in that form even today). And because the starting point for the Japanese had been an English draft containing provisions that the Japanese side either found objectionable or didn't fully understand, a certain amount of what historian John Dower calls "language games" went on, with the Japanese side trying to render the Japanese version closer to something they could live with. Sometimes the Americans caught them, sometimes they didn't.
As a result, the English version is not a translation of the Japanese version. Rather, there is the English version, which MacArthur signed off on, and the Japanese version approved by the Diet. Of course the latter is the only one that matters for legal purposes, but the fact remains that there are numerous subtle but sometimes important differences between the two. By replacing the current English version with a technically accurate translation, people who cannot read Japanese would be better able to understand some of the interpretive issues underlying it. It would probably also make it easier for the Japanese government to explain any amendments that are made to the rest of the world.
What are some of the differences? There are many, so a few examples will have to suffice.
Let's start with something trivial but annoying: The English version lacks the paragraph numbers of its Japanese counterpart. Others are trivial but lead to subtle differences (Article 34 is three clauses separated by semicolons in English, but two sentences separated by a full stop in Japanese).
Some discrepancies are quite significant. In English, the Constitution uses "people" and "person," terms that only seem to imply a difference between singular or plural. In Japanese, however, the terms are kokumin and nanpito. Kokumin clearly contains a nuance of Japanese nationality, while nanpito does not. Thus, wherever the English version appears to frame the constitutional rights of the "people" in universal terms, in actuality many of them are only clearly vested in Japanese people.
Other inconsistencies are just plain confusing. In English, Article 65 states that the Cabinet is vested with the "executive power," but the Japanese term actually means "administrative power." More confusingly, in Article 73 the English says that the Cabinet must "administer" the law, while the Japanese uses a term that means "execute"! Also in Article 73, the English says that the Cabinet must administer the "civil service" but the term used here (kanri) is actually an archaic one that had imperial connotations giving it a much narrower scope than the "public officials" (kōmuin) referenced in Article 15.
In some places, the reason for some very important interpretive debates is not apparent from the English version. For example, although the majority of legislation passed by the Diet is initiated by the Cabinet, the Constitution does not clearly accord the executive branch any role in the legislative process. You would never know this from the English version, in which Article 72 says that the prime minister, representing the Cabinet, submits "bills" to the Diet. In Japanese, however, the term used is not "bill" (hōritsuan — literally "proposed law") as is used in the Article 59 provisions on the legislative process, but gian, which means "matter proposed for deliberation."
Since "gian" is quite broad in scope, most scholars have accepted that it can be assumed to include proposed laws. Yet this is an odd assumption for a Constitution that clearly denotes the Diet as the sole law-making organ of the state (Article 41). This is another area where the LDP's proposed amendments would essentially make the Constitution reflect existing practice by clearly stating that the Cabinet can propose legislation to the Diet.
The meaning of "gian" is not just a matter of theory: It remains unclear whether this could include proposed constitutional amendments, which brings us back to Mr. Abe and his characterization of the Japanese Constitution as "pathetic."
Back in the 1950s, when Japan's conservatives took some of the first steps towards constitutional amendment — by establishing under the Cabinet a "Committee for Investigating the Constitution" — some scholars pointed out that the role of the Cabinet was to respect and protect the Constitution, not to criticize it or propose amendments. This was not mere conjecture, either, since Article 99 clearly imposes such a duty on Cabinet members and other public officials (including Diet members, but at least they are also clearly vested with the power to initiate proposed amendments).
Perhaps Abe will tone down his rhetoric now that he is PM and subject to this duty, but don't be surprised if he doesn't.
In fact, one of the creepiest amendments proposed by the LDP is the one that will probably get very little attention: a change that would subject Japanese people to a duty to respect the Constitution. And how will they know when they are violating this duty? Presumably government officials will tell them.
This would certainly be consistent with a process that already seems to be well under way: the conversion of the Constitution into an anti-constitution, a charter that the government uses to command the governed rather than vice versa. The Ministry of Justice already characterizes human rights violations almost entirely in terms of discrimination by private individuals, rather than anything to do with the criminal justice, prison, the death penalty and immigration detention systems under its jurisdiction.
A few months ago in a public restroom in Kyoto Station I saw a sign posted by the local human rights commission (adorned with the Justice Ministry's official human rights cartoon mascots) warning that whoever had written offensive graffiti there was violating the Constitution. Under the LDP Constitution, hanging a flag or a picture of the Emperor in a public loo to deter graffiti might well amount to a constitutional offense, but nobody seems to have any qualms about debasing the current Constitution in a similar fashion.
So perhaps few Japanese people will even notice if Japan's problematic yet nonetheless admirable Constitution is allowed to fade into the night. Even if they do, it will almost certainly be too late.
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and ideas to firstname.lastname@example.org.