from Asia Unbound and Will the Japanese Change Their Constitution?

Karin Koretsune: A Constitution Like Air

August 15, 2016

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Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

This blog post is part of a series entitled Will the Japanese Change Their Constitution?, in which leading experts discuss the prospects for revising Japan’s postwar constitution. 

Karin Koretsune is a graduate student at Japan Women’s University [Nihon Joshi Daigaku] and a member of the Students Emergency Action for Liberal Democracy s (SEALDs).[1] She is the author of Nihon joshidaisei no yononaka wocchi [A Woman College Student’s View of Japan] (2014).

A Constitution like Air

by Karin Koretsune

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Japan

In the summer of 2015, people broke through the iron gates set up by police and occupied the front of the Diet building. Reportedly, either 100,000 or 300,000 people gathered to protest against the Abe cabinet’s security legislation that was rammed through our parliament on September 19. And on the front line of those protests stood the SEALDs.

The SEALDs, the Students Emergency Action for Liberal Democracy s, is a student-led emergency response group organized to protect a liberal and democratic Japan. It was founded on Constitution Day on May 2, 2015 with an eye toward this summer’s Upper House election. Its activities are divided into two time periods. Until the summer of 2015, we called for collaborative work among civil society groups and opposition political parties and focused our efforts on protesting against the Abe cabinet’s security legislation. After the bill was passed by the Diet, we aimed at preventing the party coalition of the LDP and the Komeito from securing the two-thirds majority of the Upper House seats in the 2016 election, and during the campaign season, members of the SEALDs gave speeches in support of candidates in heavily competitive districts. Now that our election activities are finished, the SEALDs will dissolve today, August 15.

What Is SEALDs?

The SEALDs does not take the form of an organization. There is no leader, and each project is run by a person who claims himself/herself to be a “sub commander,” named after Subcomandante Insurgente Marcos.[2] While there are about sixteen project teams including our demonstration team, outreach team, and design team, our work is based on the principle that “whoever has an idea takes action,” and we act fluidly. To begin with, you only need to join a group on LINE, a popular social media service in Japan, to become a member of the SEALDs. If you tire of it, you can just leave from that LINE group. Our motto for such a fluid group is “each member thinks and makes decisions independently.”

As a result, no member of the SEALDs can claim to represent the SEALDs’ views on Japan’s constitution. What I can write, however, is my personal take on the effort to revise Japan’s constitution and why I joined the SEALDs. I would like to empathize this point before I go any further.

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My Encounter With Japan’s Constitution

I first encountered Japan’s constitution when I was in the third grade. In class, I kept writing down my favorite quotes from the constitution.

Back then, my homeroom class was somewhat chaotic. Our teacher was a young male teacher who always bragged about his experience of traveling across the world as part of Japan’s Peace Boat.[3] He did this at the start of each class, boring us, but more importantly taking time away from our break by going overtime each morning. He blamed us instead, saying we were just not concentrating during class. We were furious and acted out.

One time, the teacher lost his temper, tackling a male student, punching and kicking him. The boy could only shout for him to stop, but to no avail. I was shocked to witness a classmate assaulted without any means of response. It was clear that a child was no match physically in a conflict with an adult.

What was worse is that this violence was later treated as if it had never occurred. The teacher pretended to know nothing, and claimed the student fell on his own. School authorities believed him, and student witnesses were disregarded. I learned then that children were not given the same rights as adults; their words were not valued.

I wanted to reveal the teacher’s “crime.” I thought only the law can protect us if we were to be in a closed space with the same dangerous person. I took out a small book of Japan’s six law codes and opened a page of what seems to be the section of criminal law. The book was indeed very old and was written in antiquated Japanese, which I could not read. I had almost given up when I opened the book to the front page. It was our constitution, written in contemporary Japanese, and I could read it.

One article caught my eye. It said, “The infliction of torture by any public officer and cruel punishments are absolutely forbidden.” I got very excited. It was Article Thirty-six of the constitution. I continued reading. Article Ninety-eight read: This constitution shall be the supreme law of the nation.... And Article Ninety-nine continued, “The Emperor or the Regent…and all other public officials have the obligation to respect and uphold this constitution.” I had found what I was looking for—evidence that it was the teachers’ responsibility to see that action was taken. They had been wrong to pretend nothing had happened.

The next day, I explained all the articles to my teacher, and said “Don’t you get it? What you are doing is against the constitution.” He remained silent, perhaps confused by my strange lecture. Moreover, my school was a private school, and he was not a public official.

Yet I was enthralled with my encounter with our constitution. At nine years of age, I had been deeply frightened, but my confidence was restored because I knew I had the right to fight the injustice. As an individual, I had the right to reject those who sought to enforce their views on me or to act against me with violence. This encounter with the fundamental human rights guaranteed by our constitution helped me get through school after that.

What Am I Against?

Members of the SEALDs have various views toward the constitution and are not necessarily unanimous against revising it. In Japan, when debating whether to revise our constitution, we identify people as being in one of two factions: the pro-revision faction (Kaikenha)” or the “protect the constitution faction (Gokenha).” The SEALDs has members of both.

At issue, however, is the content of our constitution. What is shared among the SEALDs members is a strong worry about the Liberal Democratic Party (LDP)’s draft proposal and the underlying point of view it represents.

I am not necessarily against revising constitution either. The procedure for revision is already embedded in the constitution so clearly when necessary, it can be revised. But we must have a rich national debate.

The LDP does not like the idea of a “rich national debate.” That was evident when looking back at the passage of the security legislation, which was essentially a revision of Article Nine. All of the constitutional scholars who testified before the Diet, even including the one called in by the LDP, made clear that the bill was “unconstitutional.” Furthermore, according to media polling, over seventy percent of the public felt “it was not explained to the people sufficiently.” Normally, a bill that elicited this much concern would have been carried over to the next Diet session and debated fully. But instead the ruling coalition extended the Diet session and forcibly passed it into law as an illegitimate means.

The LDP announced its draft proposal for a new constitution in 2012. Many experts have examined it, and I did too. It is evident that the public good has a bigger priority than the rights of individuals. The LDP, in its “Constitutional Revision Draft Proposal Q&A [PDF],” notes that it will “fundamentally review the writing based on the theory of natural rights of humankind,” and accordingly, their draft stated that people’s freedom, exercise of rights, and freedom of speech “shall not contradict the public and public order.”

Other newly added ethical provisions, such as “A family is considered as a natural and fundamental entity of society” and “Family members shall help each other,” are also scary, especially for women. In Japan, there is still a strong belief that women should sacrifice themselves in order to raise children and help the elderly or that working women should still take primary responsibility for both their family and their work responsibilities. LDP politicians incessantly make these kinds of controversial statements. Based on these ethical provisions, the state might institutionalize these obligations as a family and impose them onto women again, despite those cares for kids and seniors should be taken on by the society.

Another newly-added provision would allow our government to respond quickly to national crises also worries me. I believe this will be used to give the government complete authority without ensuring sufficient limits or oversight.  “National crises” will be determined by law, thus defined by a simple majority of Diet members. Thus the definition of what constitutes a crisis could easily change. Furthermore, this state of emergency has no time limits, making it possible for the government to assume extralegal authority for as long as it wants. Worse, this state of emergency allows the government to issue ordinances at will, limiting various individual rights. Even if the Diet disapproves them afterwards, there is no provision to repeal them.

When large earthquakes hit Japan or if a terrorist attack occurs, the government should be able to act swiftly. But in Japan, there are already laws and ordinances in place that would allow this, and we should revise and update them if necessary. There is no reason to include in the constitution a new provision to give full authority to the government under crises.

The constitution that the LDP aims for is far different from the constitution I relied on when I was a child.

Prime Minister Shinzo Abe has expressed his strong desire to revise our constitution during his time in office. The SEALDs sought to prevent him from succeeding, and thus sought to prevent the ruling coalition from securing a two-thirds majority in the Upper House in the July election. With this aim, our opposition parties agreed to work together in the election, but they were not able to prevent the pro-revision candidates from securing the requisite number of seats to proceed with debate on constitutional amendment.

The LDP did not campaign on revising the constitution during this election. Instead, they put forward Abenomics as their primary goal. The voters likely chose the LDP with the expectation that it will revive our economy. But, as a result, the debate on revising constitution will begin in earnest now. The Abe Cabinet will probably start gradually with innocuous provisions so that as many pro-revision Diet members as possible can agree.

Our constitution is like air. We take it for granted and so cannot seem to focus on how to debate its value. I am sure many Japanese have experienced either the type of violence I witnessed in my classrooms or at least some type of unreasonable discrimination. Yet it is rare that we the Japanese translate those experiences as being related to our constitution. Even when we face a violation of our rights, many simply think of it as their own fault or responsibility and hide the experience because they are embarrassed.

It is only when we become more aware of our individual rights that we will be able to embrace a discussion on constitutional revision, and claim it as our own.

[1] This is the preferred translation of the organization’s name according to their official website.

[2] Subcomandante Marcos led an armed uprising in Chiapas, Mexico’s southernmost province, in 1994, aiming at dramatizing bleak living conditions, poverty and alienation of Mexico’s indigenous population.

[3] Peace Boat is a Japan-based international non-governmental and non-profit organization that works to promote peace, human rights, equal and sustainable development and respect for the environment. Peace Boat carries out its main activities through a chartered passenger ship that travels the world on peace voyages.

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