Approximately seventy years have passed since the establishment of the Japanese Constitution. After obtaining majority seats in the House of Representatives in 2016, the coalition government started discussing an amendment to the Constitution. If these discussions are fruitful, it would be the first time in history that the Constitution is amended.
Several proposals have been made to amend the Constitution; one is concerned with emphasizing public interest by unifying the people. This Article first reviews the proposed amendments to the Japanese Constitution drafted by the Liberal Democratic Party (LDP) in 2012.
Next, this Article analyzes the academic theories concerning public welfare under the current Constitution. Japanese constitutional scholars have persistently studied the concept of public welfare. Some scholars believe the word "liberty " is associated with the equal treatment of people irrespective of their life choices, while others interpret it as condoning selfishness. The theories of American philosophers John Rawls and Michael Sandel may help inform our understanding of the Japanese Constitution. Their theories are imported into Japanese constitutional studies to protect human rights under the rule of law. Japanese constitutional scholars, meanwhile, are afraid that the amendment proposals of political parties neglect human dignity in the name of public interest and drift toward totalitarianism.
Third, this Article reviews the term "public welfare" as it appeared in the amendment process of the current Constitution because the word lacked consistency in both intent and meaning in various articles of the Constitution. Finally, this Article examines the role of the judiciary in effectuating the rule of law and protecting diversity. To this end, the Article discusses several well-known decisions by the Japanese judiciary that demonstrate how vital the role of the judiciary is in protecting individual rights in order to unite people with different ideas, beliefs, and perspectives.
LIBERAL DEMOCRATIC PARTY'S DRAFT OF THE CONSTITUTION IN 2012
The most recent proposed constitutional amendment of 2017 is certainly not the first amendment considered in Japan. (1) Each proposed amendment, from the beginning of constitutional drafting in Japan to the current Constitution, has been controversial. (2)
In the 1950s, several conservative members in the houses of Diet discussed an amendment of the Japanese Constitution and published a book of research relevant to the proposed amendment. (3) In 1950, when restoring its sovereignty, Japan concluded a security treaty with the United States that was effective for a ten-year period. (4) This treaty allowed the U.S. stationing in Japan after Japan gained its sovereignty for the safety of East Asia. (5) In 1960, the Prime Minister Nobusuke Kishi renewed the security treaty between Japan and the United States (6); university students protested the renewal of this treaty and burst into the Diet to demonstrate their opposition. (7) The students argued that this security treaty would create unnecessary conflict in Asia. (8) After World War II, Nobusuke was arrested as class A war criminal and the government experienced a purge of public officials by memorandum of General Headquarter (GHQ) until Japan gained its sovereignty. (9) Nobusuke's new security treaty is automatically renewed every ten years. (10) It comprehensively strengthens the military alliance and clarifies Japan's relationship with the United Nations. (11)
The Liberal Democratic Party (LDP) was established in 1955 after two conservative parties merged. (12) The LDP's aim was to counteract the socialist party (13), which was comprised of two right and left wing parties merged into one. The LDP's goal was to establish its own constitution because it felt that the current constitution was forced by the GHQ. (14) The LDP has a unique place in the history of Japanese politics because the LDP leader was also Prime Minister in the parliamentary system. (15) Additionally, the LDP was the majority party from 1955 to 1993. (16) Factional conflicts frequently occurred and, during electoral campaigns, the prime ministers intentionally avoided discussing constitutional amendments in their political agendas. (17) Instead, prime ministers focused on economic growth and generally approved of passing or amending statutes that already exist in the current Constitution, like the Public Official Election Act or the Diet Act. (18) In late 1990, the drastic reform of administrative branches promoted consistency of policies under the Cabinet Office (19), but this did not involve a constitutional amendment.
The LDP has never occupied two-thirds of both Houses of the Diet. After the LDP succeeded in taking the reins of government from the Democratic Party (Minshu tou) in the December 2012 election of the House of Representatives, Prime Minister Shinzo Abe, grandson of Nobusuke Kishi, was more receptive to amending the Constitution. (20) The LDP proposed a draft of a new Constitution in 2012, while it was still the opposition party. (21)
LDP amendment proposal
In late 2016, the Abe administration opened a constitutional investigation committee. (22) Then, in September 2017, the Abe Cabinet dissolved the House of Representatives. (23) The LDP may not stick to the constitutional amendment proposed in 2012 if it is successful in amending the current constitution.
The first change of major consequence in the proposed LDP amendment is to make the Emperor the head of the state. The Meiji Constitution provided that the head of state was the emperor. (24) Under the current Constitution, the emperor is a symbol of the state, and the head of the state is the cabinet or the prime minister under people's sovereignty in Japanese constitutional studies. (25)
The second major change proposed in the LDP draft was to emphasizes public interest. Article 3 of the LDP draft provides that the Japanese official flag is the rising sun and the national anthem is Kimigayo, and that the Japanese people are obligated to respect them. (26) This might be because the rising sun and Kimigayo were not officially the national flag and anthem until 1999. (27) Some public school teachers resisted standing up for Kimigayo in graduation ceremonies. (28) These teachers were subsequently disciplined under a mandatory procedure for executing tasks from the principal. (29) The teachers argued that standing up for the anthem infringes on their freedom of thought and conscience under Article 19 of the current Constitution. (30)
The third significant change in the LDP constitutional draft provided that family members shall help one another. (31) Under Article 24 of the LDP draft, the family is the fundamental unit of society. (32) Compared to the current Article 24, the proposed draft would impose family values on people in a legally binding manner. In the aging society of Japan, Article 24 would require many Japanese people to assist their elderly parents to a high degree--either by moving into their parents' homes or moving their parents into their homes. (33) If children are too indigent to support their parents, their social security might be denied under Article 24 of the proposed LDP amendment. (34)
In 1973, the Supreme Court ruled on a famous case concerning patricide. (35) Article 200 of the Criminal Code defines patricide as the killing of one's parents. (36) The punishment for such act is the death penalty or life imprisonment. (37) This is sentence is significantly harsher than the punishment for regular murder, for which defendants face a maximum life imprisonment, but generally serve much less time. (38) Vacating the lower court's decision, the Supreme Court ruled that Article 200's penalty for patricide was unconstitutional. (39) Although the purpose of Article 200, to criminalizes violence within the family unit, might be valid, the court ruled that the penalty was too heavy to achieve its goal. (40)
Fourth, the LDP draft relaxes the procedure and requirements for constitutional amendments--requiring only a majority of all members of the two Houses instead of the two-thirds currently required. (41) The Abe cabinet tried to amend this provision first, but failed in 2013. (42)
Fifth, the LDP amendment draft guarantees freedom of assembly, association, and speech, but prohibits activities intended to harm the public good and public order. (43) Some Japanese constitutional scholars criticize this as too overbroad. (44) The current Constitution contains no provisions regarding public interests besides public welfare in Articles 12, 13, 22, and 29. It treats human rights as tools to trump or overturn majority decisions. The LDP amendment draft, however, reverses this principle and exception.
Sixth, the LDP amendment draft gives emergency power to the cabinet in the following scenarios: external armed attacks, social disorder due to internal insurrection, and large-scale natural disasters such as earthquakes and other states of emergency as provided by law. (45) It requires approval of the Diet before or after the power is invoked. (46) Once a prime minister declares the state of emergency, every individual shall be subject to instructions of the state and other public organs issued to protect people's lives, bodies, and properties, as provided by law. (47) The prime minister may execute necessary expenditures, other dispositions, and may issue necessary orders to the local governors. (48) It is similar to the Imperial Order under the Meiji Constitution. (49) It was used to amend the Maintenance of Public Order Act (Chian Iji Hou, MPOA). (50) There are frequent natural disasters in Japan, and there are several statutes that prepare for these large-scale natural disasters. Article 105 of Basic Acton Disaster Control Measures (BADCM, Saigai taisaku kihon hou) allows the prime minister to declare the natural disaster emergency and the cabinet to issue...