The fragile discussion about changing Japan’s constitution during the Covid-19 pandemic

On May 3, 2020, Japan celebrated the 73rd anniversary of its constitution coming into force.’s Ayumi Miyano spoke with Kenneth Mori McElwain of the Institute of Social Science at the University of Tokyo about PM Shinzo Abe’s push to amend Japan’s famously pacifist document.

The empty street of Marunouchi Nakadōri Street in Tokyo, Japan.
Photo: Wikimedia Commons

During his seven-year tenure, Japan’s Prime Minister Shinzo Abe has been consistently expressing his ambition to pass a constitutional amendment in 2020. He may take advantage of any situation, even the coronavirus pandemic, to fulfil this ambition.

On May 3rd, 2020, the 73rd anniversary of the constitution, Abe took the opportunity to emphasise the importance and urgency of amending the supreme law of the land. 

His streamed public address on YouTube was originally directed at the members of the public constitution forum, an organisation which consists of scholars, journalists, and members of Nippon-Kaigi, the largest right-wing organisation in Japan. This public forum is a pro-amendment group and has carried out several events to promote its views.

In the video message on May 3rd, Abe emphasised that the current constitution does not establish how the government can act under a state of emergency, except for article 54, which allows the convocation of the House of Councillors during an emergency session. 

Japan’s pacifist constitution

On May 3rd, 1947, the Japanese constitution was enacted. In the aftermath of the Second World War, during the Allied occupation of Japan, the constitution was drafted by US General Douglas MacArthur, the ‘Supreme Commander for the Allied Powers’. 

The Allied occupation of Japan lasted from September 1945 until April 1952. Under MacArthur, the Allied powers aimed at the demilitarisation of Japan – which had been officially recognised as the Empire of Japan under the military government of that period. One of the primary goals of the Allied powers was to transform the imperial Japanese socio-political system into a Western-style democracy. 

“For everybody to agree, there was I think the description at the time to make Japan ‘the Switzerland of Asia’ – a good trading partner, but with a non-aggressive military force. That also combined with the very deep fear and threat of communism in eastern Asia,” Kenneth Mori McElwain,  professor of political science at the Institute of Social Science, University of Tokyo, said. 

“Their goal was democratic, specifically anti-communist, in order to make Japan like a democratic peaceful country,” he added. The constitution has been accepted by Japanese people as pacifist in nature. 

In contrast, the Liberal Democratic Party (LDP), from its formation in 1955, set its mission to amend the American-drafted peacetime constitution and establish Japan’s own version of the document. 

The LDP did not, however, draft a revised plan until 2012, which was then followed by its submission of four main points for discussion in 2018. One of the four points was a proposal to add a new constitutional clause that would give the Cabinet more power in a state of national emergency. 

The pandemic has added urgency to the debate

The discussion of whether to add the emergency clause in the constitution has been complicated by the current decision to declare a state of emergency as a result of the pandemic. The state of emergency announced on April 8th to cover seven prefectures was extended nationwide eight days later, and led the governors of each prefecture to request that citizens refrain from leaving their homes. Despite this, whether or not to stay at home could not be enforced by the government.

Some supporters of the constitutional revision view the proposed emergency clause as necessary for the government to have the power to order citizens to stay home — the so-called lockdown. On January 29th, Gen Nakatani, a member of the LDP and former minister of defence, said a discussion about the constitutional amendment was necessary if the current Japanese laws were not sufficient to deal with the pandemic. On January 30, Bunmei Ibuki, a member of the LDP, said that the coronavirus pandemic is “one of the biggest experiments for the constitutional amendment.”

The LDP insisted that it was appropriate to add the emergency clause in the constitution to maintain the function of the Diet – the equivalent of the Dáil during an emergency, such as a large-scale disaster. In case the Diet lost its capacity to function due to disaster, the party said the clause could be used to temporarily strengthen the authority of the administration, to allow for for swift governmental response. The drafted clause would enable the government to announce an emergency cabinet order, and the Diet to extend its members’ term with a two-thirds majority of the attending members. 

Under the current constitution, nevertheless, there appear to be ways to deal with an emergency like the coronavirus pandemic. To some extent, the government moved to bring the country as close as possible to a shutdown state. The New Influenza Special Measures Act was passed on March 13th and it enabled the government to declare a state of emergency and limited activities and public gatherings. 

“Under this act, it is possible for the government to require certain companies to sell face masks and medicines to the government,” McElwain said. 

“Most of the constitutional scholars say that on the one hand, individual rights need to be respected, and the government should not limit their rights unfairly. The constitution provides this concept by its 26th article. But at the same time, the government has a duty to secure the happiness and safety of the individual. When these two concepts are in the balance, can the government actually push for a new law that requires them to shut down businesses? It’s possible,” he continued. 

What is at stake

Having an emergency clause is not unusual in the world. Indeed, the LDP’s original draft submitted in 2012 was based on Germany’s emergency clause. However, according to McElwain, the LDP’s plan lacks “clear criteria” for the process of declaring a state of emergency.

“It is very hard to intervene in the private sphere under the current constitution. However, if the specific law is enacted, that concept could be overwritten,” he said. 

Most countries state-of-emergency provisions “are very strict on the duration of the debate, mandate documents, or set the rule that the government has to report something every few weeks,” he said. 

In the LDP’s draft, there are still many aspects of how a state of emergency would be enacted that are unclear – and might give excessive powers to a government. 

“For example, the drafted clause only says that a state of emergency could be declared ‘by the process established by law’, and the timing of the declaration ‘needed to be established by law’,” McElwain said.  

“The fundamental function of the constitution is it cannot be revised by a simple majority vote of the Diet. But if it says an immense authority will be given to the Cabinet ‘by the process established by law’, that lowers the hurdle back down to a simple majority vote. In principal, the government itself is formed with support by a majority of the Diet. What you are basically saying is if the Diet whose majority consists of the LDP members says yes to the government, the LDP’s administration can do anything. That’s a very weak check.

“If an authority were given to the Cabinet to cross the line which usually can’t be crossed, the process and the range of power would have to be carefully considered. There are many risks to let the person who already possesses power to decide freely when it is an emergency state. This is how dictators seize power,” he said. 

“There are risks in allowing the person who already possesses power to decide when it is an emergency state. This is how dictators seize power.”

To add any new clause to the constitution, it needs to be approved by two-thirds in both the lower and upper houses of the Diet. It then needs to gain a simple majority vote in a national referendum. According to an April opinion poll conducted by the Mainichi, Japan’s national daily newspaper, 45 percent of people were supportive of establishing the emergency clause in the constitution, while 14 percent were against, and 41 percent were either “don’t know” or “no answer”. 

“Japanese people tend to answer ‘neither’ or ‘no answer’ in surveys. It is true in social surveys and it is true in political surveys. It might mean Japanese people have neutral opinions. But the percentages of these two are significantly different from other countries,” McElwain said.

What those of a neutral opinion decide in due course could possibly be the key to whether Japan sees a revision of its constitution.

The Japan Federation of Bar Associations said that the procedure of amending the constitution needs to be discussed more. They emphasised there was a significant lack of regulations on advertisement and expenses of a referendum campaign, and this unfairly created a risk of promoting big-party preferences. 

“Giving authority to the government weakens citizens’ rights. You should be very careful about it. And certainly it is not good to think about the emergency clause during an emergency like now – because everyone is emotionally unstable,” McElwain said. 

While PM Abe’s strategy has often been labeled as a “thief at a fire” by politicians or scholars, constructive discussion regarding his mission to add emergency powers to the constitution has been consistently postponed. His tenure as prime minister will finish in September 2020; we have yet to see if this unexpected coronavirus emergency has made his dream come true or not.  

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