Japan Institute for National Fundamentals

Speaking out

Osamu Nishi

【#371】Constitution Alone Left Unchanged

Osamu Nishi / 2016.05.06 (Fri)

May 2, 2016

     On May 3, the Constitution of Japan enters its 70th year. Japan is the only country that has never amended its constitution as long as 69 years. I cannot but to say it is extraordinary.
     While Japan and the international community have dramatically changed, the Japanese constitution alone has remained unchanged. Why do we face such situation? Because constitutional amendment advocates have failed to secure a two-thirds majority required in the lower and upper houses of the National Diet to amend the constitution. In this summer’s House of Councillors election, Prime Minister Shinzo Abe has vowed to cite constitutional amendments as one of the ruling Liberal Democratic Party’s campaign promises and seek voters’ verdict on whether the constitution should be amended. The ruling camp already has a more than two-thirds majority in the House of Representatives and sees the coming upper house election as a showdown battle in which whether the ruling camp could get a two-thirds majority will be at stake.

Prepare for emergency situations
     An issue in constitutional amendment debate is whether a national emergency clause should be introduced into the constitution. Opponents to such clause say that ordinary laws can address emergency situations and that the clause runs counter to constitutionalism designed to bind state power. Both arguments are weak.
     Opponents cite the Disaster Countermeasures Basic Act and other laws to address emergency situations. Originally, however, national emergency situations include extraordinary situations that go beyond existing laws and are subject to emergency measures.
     And constitutionalism binds not state power itself but the abuse of state power. Constitutionalism might have tended to be misinterpreted. I call such misinterpreted constitutionalism “populism-based constitution theory.” For details, see the Seiron (right argument) column on the May 2 Sankei Shimbun newspaper.

Global common wisdom
     Due partly to then Democratic Party of Japan Prime Minister Naoto Kan’s inappropriate response to the Great East Japan Earthquake, people have tended to view a great earthquake disaster as a national emergency. However, a national emergency originally means an armed attack from outside, a civil war conspired by foreign forces, an organized terrorist attack or other situations in which constitutional order could be infringed.
     The most important role of the state is to secure the survival of the country, and to protect the lives, freedom and assets of the people. The constitution has the same role. Unless the constitution has some provisions for a national emergency, disorder could emerge.
     Article 4 of the 1966 International Covenant on Civil and Political Rights allows the States Parties to the covenant to declare a national emergency for measures to limit human rights “to the extent strictly required by the exigencies of the situation” “in time of public emergency which threatens the life of the nation.” Today, there are few other countries that have no national emergency clause in their constitutions. The introduction of a national emergency clause into the constitution meets the global common wisdom for the constitution.

Osamu Nishi is Director, Japan Institute for National Fundamentals, and Professor, Komazawa University