2013 JSAC University of Saskatchewan October 4 6

2013 JSAC University of Saskatchewan October 4 -6, 2013 Constitutional Change and Identity Norio Ota York University

The Upper House Election Abe's triumph breaks a deadlock in the Diet and may end the leadership shuffle that has given the country a rotating cast of prime ministers for much of the past seven years. It also threatens to usher in a more militaristic Japan, as well as a revitalized manufacturing base — buoyed by hyper-cheap government money — that has some of its critics and trading partners more than a little worried. "Abe himself, but also his entourage, have stayed on message so far not in order to just do economics, but also to push their nationalistic agenda, " says political science professor Koichi Nakano of Sophia University. "He's a hardcore nationalist with a very jarring, revisionist view of history. " Abe learned a tough lesson from the 2007 campaign when voters panned his plans to beef up patriotic education and revise the pacifist constitution so that Japan's Self-Defense Forces could be made into a military. The day he was sworn in for the second time, he admitted he had once been "on fire with ideals, " and so he dressed up his vision with a fiscal framework. "The restoration of a robust economy is a truly urgent issue, " he said. "A robust economy is a source of national strength for Japan. " Abe and his supporters say the current constitution doesn't reflect the will of the Japanese people because it was created while the country was under occupation (it went into effect in 1947). They also say the security situation in Asia has evolved, and the document should evolve with it. "Many people ask me why Japan is now trying to change the constitution, " political scientist Shinichi Kitaoka told NHK. "But the right question should be, why has Japan never changed the constitution until now? " Any revisions would require approval by two-thirds or more of the lawmakers in both chambers of the Diet, then majority support in a public referendum. Prime Minister Abe has the power in the lower house. His convincing victory Sunday now means the upper house could be within reach as well. (Dale, 2013)

Freedom and People’s Rights Movement（自由民権運動） Japan’s liberal democratic tradition Freedom and People’s Rights Movement Taisho Democracy Post-war period

Ueki Emori 植木枝盛 Toyo Dai-Nippon National Constitution Proposal (1881) Right of exiting, no death penalty Foreigner’s naturalization Protection of freedom and privacy Protection of privacy, rights for resistance No torture, basic human rights

Who inserted Article 9? The Constitution of Japan (1947) Article 9 Their work resulted in a thoroughly progressive document. Although the emperor was acknowledged as the head of state, he was stripped of any real power and essentially became a constitutional monarch. A bi-cameral legislature with a weak upper chamber was established, and with the exception of the Imperial family, all rights of peerage were abolished. Thirty-nine articles dealt with what Mac. Arthur called "basic human liberties, " including not only most of the American bill of rights, but such things as universal adult sufferage, labor's right to organize, and a host of marriage and property rights for women. But the most unique and one of the most important provisions came in Article 9, which outlawed the creation of armed forces and the right to make war. It's not clear whether or not the "No-war clause" originated with Mac. Arthur, but it certainly would not have been included without him, and its presence in the constitution has had an enormous impact on Japan's postwar history. General Mac. Arthur was the first person to write down the idea that the Japanese constitution would renounce war. Researchers agree that the idea was first introduced between General Mac. Arthur and Prime Minister Shidehara. However, there has been a debate as to which one conceived the idea. Both claimed the other told them first, a debate now impossible to settle because both have passed away. The final draft was further amended during the Diet session, as the Constitutional Amendment Committee chaired by Dr. Hitoshi Ashida proposed. The Committee introduced the phrases “aspiring sincerely to an international peace based on justice and order” to the top of paragraph 1 and “in order to accomplish the aim of the preceding paragraph” to the top of paragraph 2, among other changes of wordings. Dr. Ashida reported to the Diet that the proposed changes aimed to express motives of renunciation of war and disarmament and that the meaning of article 9 was not changed because of the proposed change. However, he claimed that the change made it possible for Japan to rearm for its self-defense later. This proposal was accepted by the Diet. The final article 9 reads: 1. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. 2. In order to accomplish the aim of the preceding paragraph, land, sea and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Was Post-war Constitution imposed? Secondly, Koseki believes there as many lines of continuity as discontinuity because conservative Japanese officials were successful at "Japanizing" the American draft of the postwar constitution by revising it in ways that connected it to Japan's imperial past and to the Meiji Constitution. [6] Contrary to popular belief, the postwar Constitution was not simply imposed upon a war-weakened Japan and rammed down the throats of conservative Japanese political leaders by an omnipotent General Mac. Arthur. Koseki demonstrates that Japanese officials revised and translated the American-written draft in ways that made the finished product more palatable to their conservative, traditional view of the relationship between the Japanese government and the Japanese people. (Van Santo, 1999) Democracy by ‘imposition’ cannot thrive if it doesn’t derive from past historical experiences and if it is imposed by sheer force. Japan’s democratic experiences from the Meiji Restoration and the Taisho democracy as well as the consensual and negotiated ‘imposition’ by the SCAP prove this. The past experience of reforming the feudal system, of enabling elections and of having democracy as one of the Restoration’s goals, among others, were the seeds that the Americans reaped in the aftermath of WWII; “This almost wholesale adoption of a ‘foreign’ model owed much of its success, however, to Japan’s own democratic tradition”(Banno, 2001: i). At the same time these seeds would have been worthless if they would have been ignored or stumbled upon; actually “much that lies at the heart of contemporary Japanese society (…) derives from the complexity of the interplay between the victors and the vanquished” (Dower, 1999: 28) A mix of history and future, change and continuity was the recipe for Japan’s redemocratization. During the last years of pre-war Japan, its democratic system and constitutional government “dissolved in a moment. However, they resurfaced in post-war politics, exerting a definite influence on today’s constitutional regime” (Banno, 2001: 84). This is the proof that there was no real imposition but a negotiation between the interests of the winners and the historical background, ideas and values of the losers. … the lesson from this particular experience is that democracy cannot be imposed undemocratically; it has to have connections with the ast and has to be negotiated and derived somehow from the consensus of people. (Palabra, 2008? )

LDP 2012 Draft of Constitutional Revision On 27 April 2012, the LDP drafted a new version of amendment with an accompanying booklet describing an explanation for general readers. The booklet states that the spirit of the amendment is to "make the Constitution more suitable for Japan" by "drastically revising the translationese wording and the provisions based on theory of natural human rights currently adopted in the Constitution". The proposed changes includes: Preamble: In the LDP draft, the Preamble declares that Japan is reigned by the Emperor and adopts the popular sovereignty and trias politica principles. The current Preamble refers to the government as a trust of the people (implying the "natural rights codified into the Constitution by the social contract" model) and ensures people "the right to live in peace, free from fear and want", but both mentions are deleted in the LDP draft. Emperor: Overall, the LDP draft adopts a wording that sounds as though the Emperor has greater power than under the current Constitution. The draft defines him as "the head of the State" (Article 1). Compared to the current Constitution, he is exempted from "the obligation to respect and uphold this Constitution" (Article 102). The draft defines Nisshōki and Kimigayo as the national flag and national anthem, respectively (Article 3).

LDP 2012 Draft (cont. ) Human Rights: The LDP draft, as the accompanying booklet states, revises many of the human right provisions currently adopted in the Constitution. The booklet describes the reason of these changes as: "Human rights should have ground on the State's history, culture and tradition" and "Several of the current constitutional provisions are based on the Western-European theory of natural human rights; such provisions therefore require to be changed. “ The draft lists every instance of the basic rights as something that is entitled by the State — as opposed to something that human beings inherently possess — as seen in the draft provisions of "new human rights" (see below). The current Constitution has the phrase "public welfare" in four articles (Articles 12, 13, 22 and 29) and states that any human right is subject to restriction when it "interferes with the public welfare". The majority of legal professionals argue that the spirit of such restriction against rights based on "public welfare" is to protect other people's rights from infringement. In the LDP draft, every instance of the phrase "public welfare" is replaced with a new phrase: "public interest and public order". The booklet describes the reason for this change as "to enable the State to restrict human rights for the sake of purposes other than protecting people's rights from infringement", but it remains unclear under what conditions the State can restrict human rights. It also explains that what "public order" means is "order of society" and its intention is not to prohibit the people from making an objection to the government, but it explains nothing about "public interest". Provisions regarding the people's rights modified and/or added in the LDP draft include: Individualism: The LDP draft replaces the word "individuals" with "persons" (Article 13). This change reflects the draft authors' view that "excessive individualism" is an ethically unacceptable thought.

LDP 2012 Draft (cont. ) Human rights and the supremacy of the Constitution: The current Constitution has Article 97 at the beginning of the "Supreme Law" chapter, which stipulates that the Constitution guarantees the basic human rights to the people. The current, prevalent interpretation of Article 97 is that this article describes the essential reason why this Constitution is the supreme law, which is the fact that the Constitution's spirit is to guarantee human rights. In the LDP draft, this article is deleted and the booklet does not explain any reason for the deletion. Freedom of assembly, association, speech and all other forms of expression: The LDP draft adds a new paragraph on Article 21, which enables the State to prohibit the people from performing expressions "for the purpose of interfering public interest and public order". The LDP explain that this change makes it easy for the State to take countermeasures against criminal organizations like Aum Shinrikyo. Right to property: The LDP draft adds a new paragraph stating that the State shall define intellectual property rights "for the sake of promotion of the people's intellectual creativity" (Article 29). Workers' rights: Workers have the right to participate in a labor union, but currently there is a dispute on whether public officials should be entitled to this right. The LDP draft add a new paragraph to make it clear that public officials shall not enjoy this right or part thereof (Article 28). Freedom from torture and cruel punishments: Under the current Constitution, torture and cruel punishments are "absolutely forbidden", but the LDP draft deletes the word "absolutely" (Article 36). The reason for this change is not presented in the booklet. "New human rights": The LDP draft adds four provisions regarding the concept collectively called "new human rights": protection of privacy (Article 19 -2), accountability of the State (Article 21 -2), environmental protection (Article 25 -2), and rights of crime victims (Article 25 -4). However, the draft only requires the State to make a good faith effort to meet the stated goals and does not entitle the people these "rights", as the booklet points out.

LDP 2012 Draft (cont. ) Obligations of the People: The LDP draft can be characterized by its obligation clauses imposed on the people. The current Constitution lists three obligations: to work (Article 27), to pay taxes as provided for by law (Article 30), and to have all boys and girls under their protection receive ordinary education as provided for by law (Article 26). The LDP draft adds six more: The people must respect the national anthem and flag (Article 3). The people must be conscious of the fact that there are responsibilities and obligations in compensation for freedom and rights (Article 12). The people must comply with the public interest and public order (Article 12). The people must help one another among the members of a household (Article 24). The people must obey commands from the State or the subordinate offices thereof in a state of emergency (Article 99). The people must uphold the Constitution (Article 102). Additionally, although defense of the national territory (Article 9 -3) and environmental protection (Article 25 -2) are literally listed under the LDP draft as obligations of the State, these provisions let the State call for the "cooperation with the people" to meet the goals provided, effectively functioning as obligation clauses on the people's side.

LDP 2012 Draft (cont. ) Equality: The current Constitution guarantees equality, prohibiting any discrimination based on "race, creed, sex, social status or family origin". The LDP draft adds "handicaps" (Articles 14 and 44) between "sex" and "social status", improving the equality under the law. On the other hand, the sentence "No privilege shall accompany award of honor, decoration or any distinction" in the current paragraph (2) of Article 14 is deleted in the LDP draft, which means that the State shall be allowed to grant "privilege" as part of national awards. The reason for this change is not presented in the booklet. National Security: The LDP draft deletes the current provision declaring that armed forces and other war potential shall never be maintained, and adds new Articles 9 -2 and 9 -3 stating that the "National Defense Force" shall be set up and the Prime Minister shall be its commander-in-chief. According to the paragraph (3) of the new Article 9 -2, the National Defense Force not only can defend the territory from a foreign attack and can participate in international peacekeeping operations, but also can operate in order to either maintain domestic public order or to protect individual rights. State of emergency: The LDP draft grants the Prime Minister the authority to declare a "state of emergency" in a national emergency including foreign invasions, domestic rebellions and natural disasters (Article 98). When in a state of emergency, the Cabinet can enact orders that have the effect equivalent to that of the laws passed by the National Diet (Article 99). Relaxation of Separation of Religion and the State: The LDP draft deletes the current clause that prohibits the State from granting "political authority" to a religious organization, and enables the State to perform religious acts itself within the scope of "social protocol or ethno-cultural practices" (Article 20).

LDP 2012 Draft (cont. ) Political Control over the Courts: Unlike the current Constitution, which guarantees that the Supreme Court judges shall not be dismissed unless the "review" procedure stipulated by the Constitution, the LDP draft enables the Diet to define this review procedure through a Dietenacted law, not the Constitution (Article 79). The draft also states that salary of a judge — of both the Supreme Court and inferior courts — could be decreased in the same manner as any other kinds of public officials (Articles 79 and 80) by the subordinate offices of the State (namely, the National Personnel Authority). Further Amendments: The LDP draft states that a simple majority in the two Houses shall be adequate for a motion for constitutional amendment (Article 96). An actual amendment shall still require a national referendum, but a simple majority in "the number of valid votes actually cast", as opposed to "the number of a qualified voter" or "the number of votes", shall enact the amendment (Article 96). (Source: Constitution of Japan: http: //en. wikipedia. org/wiki/Constitution_of_Japan)

The LDP’s Ten Most Dangerous Proposals for Constitutional Change 1. Rejecting the universality of human rights 2. Elevating maintenance of “public order” over all individual rights 3. Eliminating free speech protection for activities “with the purpose of damaging the public interest or public order, or associating with others for such purposes” 4. Deleting the comprehensive guarantee of all constitutional rights 5. Attack on the “individual” as the focus of human rights 6. New Duties for the People 7. Hindering freedom of the press and critics of government by prohibiting the “wrongful acquisition, possession and use of information relating to a person” 8. Granting the prime minister new power to declare “states of emergency” when the government can suspend ordinary constitutional processes 9. Changes to Article Nine 10. Lowering the Bar for Constitutional Amendments (Repeta 2013)

U. S. -Japan alliance Things are different today, and the treaty that used to encourage Japan to grow unfortunately now does the opposite. The treaty caps Japan's political maturation by separating Japan's responsibilities from its interests. A modern state is responsible for all aspects of its own defense, including defense of its allies and interests abroad. When Japan cedes overseas defense responsibilities to the United States, it reduces the scope of Japan's foreign policy accordingly. This has far-reaching implications. A government disengaged from Japan's foreign interests creates a people uninterested in engaging the outside world. The Japanese outlook is narrowed to a world in which threats are rare and national interests abroad are taken care of by someone else. As a nation reliant on the global system (99. 6 percent of Japan's petroleum is imported) to ensure survival, let alone prosperity, an inward-turning Japan is unacceptable. Japan's reliance on the United States for protection undermines Japanese credibility in the world. It projects the image of an economically strong country that is unable to defend itself. It doesn't matter that Japan finances many of the U. S. forces based in its country, or that it supplies the land. What matters is the fact that Vietnam is fully responsible for its own defense, and yet somehow Japan is not. A country not responsible for its own defense is not the equal of a country that is. It's not that Japan doesn't have a reason to defend itself. Japan does live in a dangerous neighborhood: three neighbors possess nuclear weapons, with one openly hostile (North Korea) and the other two having long-standing territorial disputes with Japan. As the third largest economy in the world, Japan no longer needs another country to protect it and its interests. Japan has the ability to build a force capable of defending itself, but it chooses not to. The alliance also compromises Japanese sovereignty in a way that is no longer justifiable. Under the terms of the 1960 treaty Japan has no veto rights over American deployments of troops and equipment to Japanese territory. There are good reasons for this: American forces and personnel rotate in and out of Japan so often that it would be inefficient to negotiate the transfer of every ship and squadron. But theoretically the United States could deploy its entire armed forces to Japan, so long as it "contributes to the security of Japan and the maintenance of international peace and security in the Far East. " Such a provision was a good idea when Japan was politically, economically, and militarily weak, but it was justified by Japan's weakness. Today, Japan is not weak. Japanese citizens must live with the reality that a foreign power can send military forces to Japan at will, without their having a say in the matter. If we want the Japanese to assume the role of an equal partner, they must have greater input on what happens on their own soil. (Mizokami, 2012)

U. S. view The inevitability of reforms in the long term is without question. Reform is inevitable in that it is driven by nationalism and Japan’s desire to take a more prominent role in global affairs, which necessitate Article 9’s revision. Flexible interpretation of Article 9 has stretched the SDF’s activities beyond any semblance of the original meaning, and as it now stands, the SDF’s activities undermine the legitimacy of Japan’s constitution and undermine the establishment of a credible adherence to a rule of law. As Japan slowly moves closer to revising its constitution, it must balance its desire to be a “normal” state while at the same time reassuring its closest neighbors that it is not shedding its pacifist ideals. Any discussion involving the possible revision of Article 9 is met with concern from China and North Korea, with each country considering Article 9 to be an impressive document which has prevented a return to militarism. While there is sound evidence that supports their claim, both countries fail to acknowledge that their provocation has encouraged Japan’s accelerated military buildup and has encouraged deeper security alliances with the United States. Japan – having clearly felt the destructive misery of war – has no desire to engage in combat, preferring to wage its wars in the global marketplace. Japan acts in response to China, which is consistently outspoken in its readiness to use force to settle international disputes. With Beijing engaged in territorial disputes with a number of nations, occupied with suppressing bids for independence in others, and controlling and shaping the flow of information to its people, China’s actions greatly contrast the peaceful rise mantra so often heard in the tightly controlled Chinese media. There can be little doubt that China’s activities are done in light of considering themselves, at minimum, the regional hegemon and Japan as a rival which is about to be overtaken. There can be no surprise that Japan has steadily increased its military capabilities. North Korea offers a somewhat more “intimate” geopolitical scenario in that a focused strike could devastate Tokyo within moments. Unlikely, but it is difficult to not understand Japan’s concern and its subsequent military buildup and alliances with the United States. While this argument justifying a military buildup may be sustained based on the above examples, the possibility of initiating Article 9 revisions, when there abundant issues of contention between Japan and its Asian neighbors that need to be addressed, adds considerably to the rise of regional tensions. (Panton 2011)

U. S. view (cont. ) After the fall of the Communist Bloc and the advent of a post-9/11 security environment, the treaty has not evolved to meet rising threats in the region. Specifically, due to Japan’s continuing constitutional ban of collective self-defense (CSD) with any foreign power including the United States, the security arrangement between the U. S. and Japan has stagnated while threats in the region increase. This ban limits military options to Japan’s decision makers and hinders effective responses to an array of defense problems. U. S. operational commanders in the Pacific theater are also concerned about the inadequacies of the treaty as they plan to combat the same regional threats. (Sultenfuss 2011) The Japanese move toward constitutional amendments has been hailed by Washington, if not officially, as clear evidence that Tokyo is going in the right direction to become a more reliable and responsible security partner regionally and globally. The Abe government has also expressed a strong desire to further expand the boundaries of Japan’s military activities, even under the current constitution. Successive Japanese governments have interpreted the constitution as prohibiting the nation from exercising its right to collective defense, or the right to come to the military aid of an ally under attack. But the Abe government wants to allow the nation to help the U. S. in certain emergencies, including striking down ballistic missiles headed their way. The government has set up a panel of experts, chaired by former Ambassador to Washington Shunji Yanai, to launch detailed discussions on a limited number of contingencies in which Japan could mobilize its forces if the U. S. were to come under attack. (Masaki 2007)

Foreign supporter The objective of the revisionists—most importantly Abe’s LDP and allies in the Japan Restoration Party and Your Party—is to change the two-thirds of both Diet houses requirement to one-half. Lowering the Diet vote bar would open wide the door to future revisions. Indeed, it would allow— possibly ensure—eventual scrapping of the foreign-imposed constitution and its replacement by something indigenous and truly reflecting the will of the Japanese people. Are we talking about radical change? More to the point and probable concerns of Japan’s Asian neighbors, are we talking about a possible return to emperor worship and militarism? Here there should be no doubt. Absolutely not. Japan today is a wholly different polity and changed society from that which prevailed in the 1930 s. Japan, more than many countries, has learned from its history. It has embraced pacifism as national policy. (Harner, 2013)

U. S. official policy Now there is, and has been at various times including recently, discussion within the Japanese community about the possibility of constitutional reform or reinterpretation of policies. That is the issue that only the Japanese people can decide on, and in Japan as in every country, the people and their elected representatives have a sovereign right to hold that debate and to make those kinds of decisions. The term “collective security” is often heard and often used. The answer to the question “What should countries like the United States or other of Japan’s neighbors think about collective security? ” is dependent on the answer to the question “What exactly does it mean? What is Japan trying to do? ” For the United States, the bottom line is this: Japan is a valued and trustworthy security partner. Finding ways within the context of the alliance to enhance Japan’s ability to defend itself and to enhance Japan’s ability to contribute to the stability and security of the region is a good thing. We believe that what Japan is doing regionally to promote partner capacity, what Japan is doing in support of humanitarian assistance and disaster relief efforts and what Japan is doing in international peacekeeping operations are also all to the good. So there are debates that need to occur within Japan. There are decisions that need to be made by the Japanese government, but throughout the level of communication and cooperation between our defense institutions and between our political and diplomatic leadership is excellent, and I have every confidence that in the period ahead, the alliance will be strengthened by the decisions that Japan and the United States take. (Russel, 2013)

What constitutional revisionists are saying Why Should the Current Japanese Constitution be Amended? Is there any other constitution as abnormal as this? The current Japanese constitution was written with malice and vengeance by the occupying force in the aftermath of World War II in a way that denied the Japanese history, cultures and traditions almost completely so that Japan could never rise again from the ashes of the war. Nobody at the GHQ (General Headquarters) of the occupying force would have imagined that the constitution based on a shoddy draft written in a mere week would last without any amendment for so long. Japan, which is slipping along the path of “a country of sunset, ” has no time to waste to amend the constitution if it is to regain its pride and win back the respect of the international community. --- Editor As a solution, by far the best thing to do is amending the existing constitution or creating an entirely new one. We should start by revising the preamble, which is too nondescript and matter-of-fact. In the Meiji Era (that began with the radical reform of the threecenturies-old political system of the Tokugawa Shogunate), Japan actively absorbed European cultures, and thereafter, it continued to introduce foreign cultures, mainly from Europe and the United States. Japan’s identity is represented by what is known as kokutai. Kokutai, a word with which younger generations are not familiar, refers to national heritage. Japan’s national heritage is encapsulated in the dynasty of the Imperial Household. European kings and Chinese emperors reigned as conquerors. However, the Japanese Imperial Household has lasted until now on the basis of authority rather than power (the era of Emperor Godaigo is an exception). In the Meiji Era, the Emperor was invested with power, but this arrangement was necessary for Japan to become a modern country, so Emperor Meiji should not be seen in the same light as Emperor Godaigo. With two millennia of history behind it, the Imperial Household is something that we can uphold proudly to the world. Thanks to this heritage, Japan has maintained unity based on the fine balance between authority, power and people. The Japanese people have pursued peace and loved nature based on the national heritage centering on the Imperial Household. The network of human connections underpinned by bonds between various people, including blood relations, friends and co-workers has fostered Japan’s national heritage. A constitutional preamble that includes references to these things would be something that we can proudly uphold to the world. To that end, we should first revise the provision of Article 96 of the constitution that requires a two-thirds majority in both the House of Representatives and the House of Councillors for the initiation of constitutional amendment so that amendment can be put to a referendum according to the standard rule of democracy, namely if a one-half majority support is obtained in the Diet (the Japanese parliament). This should be the ground rule for debate between pro- and anti-amendment forces. (Japan Institute for National Fundamentals 2012)

Revisionist (cont. ) Kitagami: To my mind, the current preamble lacks references to the national heritage. In this respect, it is important that a national consensus be formed through a nationwide debate. Let me offer some personal thoughts. First, regarding the conduct of political affairs in Japan, the oldest existing imperial edict, which was issued by Emperor Monmu, states that political affairs should be conducted with “a clear, pure, and straightforward and conscientious mind. ” The values treasured by Japan like these should be included in the preamble. Second, it should naturally be mentioned that the Imperial Household as represented by the Emperor is at the heart of Japan as a nation, as is indicated in the LDP’s draft that was cited earlier. The third element is the Charter Oath that Ms. Sakurai mentioned earlier. (Former Prime Minister) Shigeru Yoshida said at a plenary session of the House of Representatives in the aftermath of the war that the Charter Oath represents Japan’s national policy. I quite agree with that view. The Charter Oath was established on the occasion of the Meiji Restoration. In his radio broadcast announcing the defeat of Japan, Emperor Showa took the trouble of quoting this oath. Sakurai: As you can see from the panelists’ comments, the Japanese ways of making decisions and conducting political affairs used to be really democratic. The principle “Deliberative assemblies shall be established on an extensive scale, and all governmental matters shall be determined by public discussion” represents the essence of democracy. The Charter Oath was announced in March of the year that the Meiji Restoration started. This made clear what kind of country Japan should be. The oath was announced by Emperor Meiji himself immediately after the decision was taken to make Japan a modern nation at the beginning of the Meiji Restoration. The origin of the Charter Oath can be traced back to the Seventeen-Article constitution that was established by Prince Shotoku. Since the establishment of the Seventeen-Article constitution in the seventh century, Japan has consistently preserved the same values. We must realize that this was a democratic constitution that gave consideration to the welfare of the people to an amazing degree by international standards. Sakurai: The Japanese people have nowhere to go other than Japan. There are many English-speaking countries and Christian civilization-based countries. But Japan is the only country centering on the Japanese civilization. We have no other country to flee to in a national crisis. If we are to defend our fatherland with its unique civilization, I would say we need to have a much stronger resolve and work much harder to do so than people in Christian civilization-based countries and Islamic civilization-based countries. If we are to defend our beautiful country with its long history, we must start by tackling constitutional issues. Sakurai: …… It is important to let the world see that Japan is trying to do something with its horrible constitution. After many decades of torpor, the Japanese people are waking up and striving to regain themselves. I believe letting the world recognize that effort will help to gradually reduce threat posed to Japan and will provide the most effective deterrence. I know of no other country as wonderful as Japan. To defend and preserve our country for future generations, let us work together to achieve constitutional amendment as

The Charter of the United Nations, Chapter 7, article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Critical views However, sweeping changes proposed by Abe's Liberal Democratic Party (LDP) in a draft constitution would strike at the heart of the charter with an assault on basic civil rights that could muzzle the media, undermine gender equality and generally open the door to an authoritarian state, activists and scholars say. Many Japanese conservatives see the constitution, unchanged since its adoption in 1947 during the U. S. -led Allied Occupation, as an embodiment of Western-style, individualistic mores they believe eroded Japan's group-oriented traditions. "The real concern is that a couple of years later, we move to a redefinition of a 'new Japan' as an authoritarian, nationalist order, " said Yale University law professor Bruce Ackerman. The LDP draft, approved by the party last year, would negate the basic concept of universal human rights, which Japanese conservatives argue is a Western notion ill-suited to Japan's traditional culture and values, constitutional scholars say. "The current constitution. . . provides protection for a long list of fundamental rights - freedom of expression, freedom of religion, " said Meiji University professor Lawrence Repeta. "It's clear the leaders of the LDP and certain other politicians in Japan. . . are passionately against a system that protects individual rights to that degree. " The draft deletes a guarantee of basic human rights and prescribes duties, such as submission to an undefined "public interest and public order". The military would be empowered to maintain that "public order. " One proposal would ban anyone from "improperly" acquiring or using information about individuals - a clause experts say could limit freedom of speech. A reference to respect for the "family" as the basic social unit hints, say critics, at a revival of a patriarchal system that gave women few rights. "The constitution is there to tie the hands of government, not put duties on the people, " said Taro Kono, an LDP lawmaker often at odds with his party on policies. "There are some in both houses (of parliament) who don't really understand the role of a modern constitution. " (Sieg, 2013)

Optimism But perhaps the biggest hurdle faced by the Abe administration stems from its own population. Depending on the poll consulted, Japanese people range from tepid to ambivalent on the issue of constitutional reform, with those in support numbering between 39 -56%. Even the upper limit of 56% is hardly the kind of popular mandate that could grease the wheels of the LDP charm offensive to garner enough votes to amend Article 96. In fact, these poll numbers seem to indicate a national referendum that would be hard fought and far from assured should the LDP somehow manage to pull together a two-thirds majority in both houses. Thus, even though the recent LDP electoral success indicates a continuation of Abenomics and some of Abe’s security policies such as a deepening of Indo-Japanese relations and a boost in military spending, the oft-discussed project of amending Japan’s pacifist constitution is set to remain as just that: discussed, not realized. (Fillingham 2013)

Defending Article 9 In the midst of all this, calls for rewriting the Constitution, long a cause of the right, are getting louder. Both Shinzo Abe and Shintaro Ishihara, leaders of the two main opposition parties, have declared constitutional revision a priority. Many of my friends in Hiroshima fear that this will be used to discard Japan’s peace clause, opening the possibility of militarization and even nuclear arms. The “American-written” Constitution — recently labeled by Ishihara as “ugly” — is a convenient scapegoat for and distraction from the country’s pressing challenges. But avoiding debate about it might be counterproductive. A Constitution, in the words of the scholar Takii Kazuhiro, is not just a legal document, but the very “shape of the nation. ” Article 9 of the Japanese Constitution forever renounces war “as a sovereign right of the nation and the threat or use of force as means of settling international disputes. ” This has not hindered the creation of the powerful Self-Defense Forces, so it is fair to ask what more Japan could have accomplished with a military carte blanche. Could thousands of Japanese youth have perished in the Korean War, or in Vietnam, or more recently in Iraq and Afghanistan? That is not all. Shoichi Koseki, in his book “Birth of Japan’s Postwar Constitution, ” wrote that the Constitution contained some of the most advanced civil rights clauses of the time — including Article 24, drafted by Sirota, which for the first time in Japanese history articulated equal rights for half of the country’s population — the women. Scholars also note that from inception, the drafters were deeply influenced by the Japanese themselves. Twelve groups, including reformist political parties and a constitutional research association set up by some of Japan’s leading intellectuals, submitted proposals.

Defending Article 9 (cont. ) The final draft was negotiated fiercely by the Japanese government in a marathon 32 -hour translation session, and the text was debated for months by the legislature. The new Constitution clearly responded to the longings of the Japanese themselves. Otherwise it could hardly have survived unchanged for 65 years. Sirota is now the last living member of the drafting team. After the Mac. Arthur years she served as director of performing arts of the Japan Society and of Asia Society. Her love for Japan remains intact, and it is returned by Japanese women. Imbued with the idealism of a generation that actually experienced war, Sirota wrote in her memoirs, “Only the article renouncing militarism really touched the hearts of people who had suffered such devastating losses. ” Despite the fact that the Constitution has enabled Japan to live for more than six decades in peace and prosperity, so long as there are politicians who disdain it as the work of foreigners there will be pressure to rewrite it. When that happens, it is my hope that millions of Japanese, rightly proud of its uniqueness, will rise to its defense. A national debate could well stir deeper sentiments and reflections, especially among young people, reminding them never to take their peace and their democracy for granted, rallying them to fight for the future shape of their nation. (AZIMI, 2012)

Identity issues Kitagami: I would like to talk about four points. First, it is quite natural to amend the current constitution. This is obviously an occupation-era constitution, as it was established while Japan was under the U. S. occupation, an extraordinary situation. Now that the occupation has long been ended and Japan has become an independent country, it is quite natural that the Japanese people amend the constitution for themselves. The constitution is the supreme law that supersedes all other laws and regulations, so it is extremely important that a new constitution be established based on a national debate. Second, while constitutional amendment is important, the most important thing is that the Japanese people share the sense of identity as a nation. It is important to hold national debate on ideals as to what kind of country Japan should be and what role Japan should play on the global stage. After World War II, Japan pursued economic growth and succeeded in achieving it. However, while economic growth brought affluence, we Japanese failed to give due consideration to such matters as the constitution, nationhood, national values, history and tradition. Since the era of Prince Shotoku (who played the leading role in establishing a united government in Japan around the beginning of the seventh century), Japan has made it a national policy to deal with any great foreign power on an equal footing. Japan should maintain its position as a great nation, but I have the impression that our country is slipping from that position. When we live abroad, we have strong awareness about nationhood. From my own experience, I feel that Japan is a very divided country when it comes to national identity although there is a consensus on some points. It is difficult to answer the question “What kind of country is Japan? ” Put another way, if someone offers his or her own idea of Japan’s identity, an objection is certain to be raised. It is not scientifically or logically possible to strictly define Japan’s identity as a nation. However, we are talking about ideals, which do not necessarily match the reality. Such is the nature of ideals. Even if ideals are disconnected with the reality, we do not necessarily have to deny them. For example, most Americans speak of “the American dream. ” But the reality is that America faces problems such as racial and religious discrimination, economic inequality and elitism. Although the “American dream” is upheld as an ideal, it is doubtful whether everyone can fulfill his or her dream. Nevertheless, for Americans, it is important to share the “American dream, ” upholding the ideal of making America a country where all people can fulfill their dream. Sakurai: In the postwar period, Japan has become economically affluent, but there is a sense that the affluence is causing our decline as a nation. I think that constitutional amendment is attracting attention now because the people have recognized that. Of course, the March 11 disaster (the Great East Japan Earthquake, tsunami and the Fukushima nuclear accident) is also a factor. I would say the greatest reason why the constitution should be amended is that it does not reflect the soul of the Japanese people. In that sense, amendment of the preamble is very important. The preamble should include references to the Emperor’s position as the head of state as well as the Japanese culture, civilization and history starting from the era of myth. All these should constitute the pillar of the preamble. (JINF 2012)

Constitutional Patriotism Jügen Habermas Review: Constitutional Patriotism by Jan Werner Müller In the mid-1980 s, the German political philosopher Jürgen Habermas popularized the concept of "constitutional patriotism, " the idea, as Müller explains it, that political attachment "ought to center on the norms, the values and, more indirectly, the procedures of a liberal democratic constitution. " The notion struck a chord in Germany, where even two generations after the Nazi era, many were still uncomfortable with traditional nationalism yet wanted to belong to a political community that was more narrowly defined than humanity as a whole. Müller carefully and fairly examines the history, the advantages, and the drawbacks of the concept and concludes that there is merit in the notion that political attachment can be based on liberal norms rather than blood or faith. Müller's constitutional patriotism does not mean ignoring history or ethnicity in the definition of a political community (as critics of the concept imply it does) but rather means complementing them with the thought that people can be brought together by loyalty to a constitution. The discussion is particularly relevant to the case of the European Union, which, in the absence of a shared history or culture, might find value in alternative concepts of political belonging. (Gordon 2008)

Constitutional Paotrism (cont. ) In general, the concept of constitutional patriotism designates the idea that political attachment ought to center on the norms, the values, and, more indirectly, the procedures of a liberal democratic constitution. Thus, political allegiance is owed, primarily neither to a national culture, as proponents of liberal nationalism have claimed, nor to “the worldwide community of human beings, ” as, for instance, Martha Nussbaum’s conception of cosmopolitanism has it. Constitutional patriotism promises a form of solidarity distinct from both nationalism and cosmopolitanism. (The Authors 2008, Oxford University Press and New York University School of Law: http: //icon. oxfordjournals. org/content/6/1/67. extract)

Fossum’s two types of CP

Canadian context Bilingualism Multiculturalism in Canada THE CHARTER OF RIGHTS AND FREEDOMS The Charter transformed us from a PARLIAMENTARY DEMOCRACY (parliamentary law reigned supreme except for federalism review) to a CONSTITUTIONAL DEMOCRACY where certain rights and freedoms are guaranteed against parliament (except as per limitations in ss. 1 - Oaks test application and 33 - is outstanding clause. This sec. show ability of Government to override the court decision. ) (Constitutional Law Summary: Spring 2006) It cannot be denied that in the 1990 s issues of immigration and refugees have become problematic in the public mind. One also cannot know how divisive ethnic and racial questions may become or what impact any divisiveness might have on the government’s ongoing commitment to multiculturalism. Some regard the election of a strong Reform Party bloc in the 1993 federal election as a tangible sign of this unease, and although the government has not turned its back on its multiculturalism policy, in 1993 it closed the multiculturalism department created under the 1988 act and shifted the programs into a new, broadly based Department of Canadian Heritage. Recognizing that so long as ethnic identification or race remains a barrier to full participation in Canadian society, those adversely affected will look to the multicultural policy to offer more than symbolic recognition of cultural continuity, Canadian Heritage has increasingly emphasized the core values inherent in multiculturalism policy – participation, equal citizenship, and institutional access. As a result, the blend of idealism, pride in cultural pluralism, and Canadian uniqueness that gave rise to multiculturalism in the 1970 s is being repositioned to respond to the needs of the 1990 s and beyond. (Multicultural Canada, Recent developments: http: //www. multiculturalcanada. ca/Encyclopedia/A-Z/m 9/6)

Conclusion Both in Japan and Canada the peace constitution and multiculturalism and Charters of rights and freedoms respectively have been altered gradually to the extent that those who have adopted them as their identity feel that their constitutional patriotism has been threatened. Constitutional patriotism or identity is the only solution not only in a multicultural and multi-racial society, but also in a rather homogenous society in order to maintain individual freedom and human rights. I sincerely wish Japanese people would wake up, re-examine the history, see through what the revisionists are trying to do, and maintain the peaceful Japan through the current constitution.

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Reference (cont. ) Hayward, Clarissa Rile (2007) Democracy’s Identity Problem: Is “Constitutional Patriotism” the Answer? : http: //polisci. wustl. edu/files/polisci/imce/democracys_identity_problem_compact. pdf Higuchi, Youichi (2013) ‘Deciding’ politics vs. ‘citizens’ not allowing to decide: the meaning of ‘maintaining’ the Constitution now, Sekai, no 840, pp. 113 -116. Ito, Makoto (2013) ‘Why the Constitution should not be changed? ’, Sekai, June no. 844, p. p. 72 -82. JINF (2012) Why Should the Current Japanese Constitution be Amended? : http: //en. jinf. jp/news/archives/1623 Kawasaki, Akira and Céline Nahory (2013) Revision of Japan’s Peace Constitution – A Matter of Global Concern, Common Dreams: https: //www. commondreams. org/view/2013/07/21 -2 Kinoshita, Hideomi (2013) ‘US would not allow “revision” of the WW 2’, Sekai, August no 846, p. p. 152 -158. Kouno, Youhei (2013) ‘LDP, be humble!’, Sekai, August no. 846, p. p. 37 -43. Lawrence Repeta (2013) Japan’s Democracy at Risk – The LDP’s Ten Most Dangerous Proposals for Constitutional Change 危機に瀕する日本の民主主義 自民党憲法改正案、最も危険な 10項目, The Asia-Pacific Journal: Japan Focus: http: //www. japanfocus. org/-Lawrence-Repeta/3969 Masaki, Hisane (2007) Japan’s historic step toward the first revision of its postwar pacifist constitution, World Security Network: http: //www. worldsecuritynetwork. com/Japan/hisane-masaki/Japan%E 2%80%99 s-historic-step-toward-the-firstrevision-of-its-postwar-pacifist-constitution Mizokami , Kyle Sep 27 2012 Japan and the U. S. : It's Time to Rethink Your Relationship, The Atlantic: http: //www. theatlantic. com/international/archive/2012/09/japan-and-the-us-its-time-to-rethink-your-relationship/262916/ Mizushima, Asaho (2013) How to counter “Kaiken ‘destroying the Constitution’”, Sekai, March no. 840, Iwanami, pp. 94 -102. Müller, Jan-Werner (2006) A general theory of constitutional patriotism: http: //www. princeton. edu/~jmueller/ICON-CPJWMueller-Oct 2007. pdf

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