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How rights and liberties may be downsized under the LDP

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A revisionist path: Men walk past a poster for the July 10 Upper House election with the image of Prime Minister Shinzo Abe, leader of Japan’s ruling Liberal Democratic Party, at the LDP headquarters in Tokyo. The slogan on the poster reads: ‘Forward with strength this path.’

 

During a recent TV program, the vice president of the Liberal Democratic Party, Masahiko Komura, insisted “there is zero possibility” that Prime Minister Shinzo Abe would revise war-renouncing Article 9 of the Constitution even if the ruling coalition wins a two-thirds majority in the upcoming Upper House elections. But why believe him? Abe has made clear his intentions of promoting constitutional revision. Until he publicly pledges not to do so, voters are right to be wary.

Komura wants to bamboozle voters because he understands that public support for revising the Constitution is weak. An NHK poll in June indicated only 26 percent of Japanese citizens support his plans and only 11 percent think it is a priority. This lack of enthusiasm is also evident in a Kyodo poll in June indicating that 46.6 percent of all Upper House candidates oppose revising the Constitution, while only 34.6 percent support doing so. Broken down by party, 72.1 percent of the LDP favors revision while no candidate from coalition partner Komeito does, and only 28 percent of Osaka Ishin no Kai (One Osaka) candidates support revision. Virtually all the candidates of the Democratic Party and all of those fielded by the Japanese Communist Party and Social Democratic Party oppose revision.

Significantly, despite Abe’s enthusiasm, only 11.7 percent of all candidates think constitutional revision is a priority, according to the Kyodo poll.

DP leader Katsuya Okada has pointed out that Abe doesn’t seem to understand the role of the Constitution, which is to restrain state powers and protect the people’s civil liberties.

Where would Okada ever get that idea? Perhaps he glanced through the LDP’s 2012 draft constitution or the Q&A pamphlet the party distributed to explain its plans.

Indeed, the LDP seeks to fundamentally shift the relationship between the people and the state, imposing duties on citizens while lifting curbs on state powers. The LDP pamphlet asserts that there are “big” and “small” rights after a state of emergency is declared. The prime minister can declare a state of emergency in the event of a natural disaster, an armed attack by external forces or social disorder due to domestic turmoil, and the Cabinet could then suspend these small rights if they are deemed a threat to the undefined “public interest and public order.” So-called big rights are specified as those related to lives, bodies and property. Exactly what the mingy freedoms are is left to our imagination, but the implication is that they are a trivial but necessary sacrifice that must be made in service of the indispensable.

The LDP has cited the recent Kumamoto earthquake as an example of why it would be useful to have such a provision to facilitate relief and recovery efforts, but it is not clear that any problems in such operations had anything to do with the government’s inability to temporarily suspend civil liberties and human rights, or to concentrate power in the Cabinet. A state of emergency provision means that the government would have authority to suspend constitutional rights and bypass the Diet.

Good idea? Well it is troubling that the LDP believes that certain rights not only trump others, but can suspend them. The LDP is arguing that it may be necessary to sometimes put the Constitution on hold and, other times, to enforce it.

How would restrictions on human rights help in an emergency and what civil liberties might get in the way? This raises more questions: What are the criteria for deciding, and who gets to decide, that social turmoil has reached the tipping point for suspension of civil liberties and constitutional freedoms?

In the May 26 edition of the Mainichi Shimbun, the LDP says, “Some are of the opinion that fundamental human rights should not be restricted even in times of emergency. But we believe that it is possible that in order to protect big human rights, such as people’s lives, bodies and properties, we could be forced to place restrictions on smaller human rights.”

The notion that “small” human rights exist in the Constitution and can be violated with impunity is a novel concept. Constitutional scholars do not differentiate between rights by privileging some over others and distinguishing the vital from the inconsequential. Such a regressive view is antithetical to constitutionalism because it means that the government decides on an ad hoc basis what counts and what doesn’t, whereas a constitution is supposed to establish the legal foundations and rules through thick and thin.

Freedom of expression is likely one of the smaller rights that would be jettisoned in a state of emergency. This is the basis of press freedom in the Japanese Constitution. It is hard to imagine how a functioning democracy can exist without freedom of expression or how that small right would be detrimental in an emergency. How would its sacrifice protect property rights and lives? How would freedom of expression threaten such rights?

The LDP’s concern about pesky civil liberties like freedom of thought and conscience or freedom of expression enshrined in the Constitution reflects discomfort with the Western values and notion of “natural rights” that the U.S. wrote into the text in 1947. The LDP is eager to claw back rights for the state that the current Constitution bestows on citizens. The foreign DNA of the current Constitution rankles conservatives, but even former prime minister — and longtime pro-revision politician — Yasuhiro Nakasone now believes that, during the decades since it was written, the spirit and text have been assimilated by society. He sees no pressing need for revision.

Essentially, the only thing that the proposed state-of-emergency proviso allows the state to do that it can’t do now is suspend constitutional rights and effect what amounts to a coup d’etat. It is about boosting powers of the state in the name of protecting big human rights and suppressing dissent or criticism of the state. Rather than Western “natural rights,” the LDP is pushing “natural duties” that are allegedly in line with Japanese traditions and values. It means writing the U.N. Declaration on Human Rights out of the Constitution by renouncing the preamble of Japan’s current Constitution, which states:

“Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded.” Further on, it reads, “laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.”

Preserving these commitments and derailing the LDP’s revision juggernaut seem reason enough to vote, but my guess is that low turnout persists because citizens find politics in Japan so uninspiring and dispiriting. With a supermajority in both houses, Abe will seek to revise the Constitution without being able to claim a mandate to do so.

http://www.japantimes.co.jp/opinion/2016/07/09/commentary/rights-liberties-may-downsized-ldp/#.V4GqCVNXkrB.facebook

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July 11, 2016 - Posted by | Japan | , ,

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