Japanese elections: constitutional revision and the anxiety of free speech

While the high drama of the Brexit vote and the US presidential election has grabbed international headlines, Japan has also completed an election that may have far-reaching implications. In the elections for the Upper House of the Diet (Japan’s parliament) on 10 July, the ruling Liberal Democratic Party (LDP) and its coalition partners won 162 seats, which, combined with sympathetic but unaffiliated members, give them a two-thirds majority in the Upper House. It already had a two-thirds majority in the Lower House.

A two-thirds supermajority in both houses is the threshold needed to instigate a revision to Japan’s Constitution, pending approval by a majority of voters in a referendum. Prime Minister Abe Shinzō, along with the LDP, has long held the goal of revising the Constitution, which they consider to have been imposed on Japan by the Allied Occupation after World War II. In particular, Article 9, which renounces war as a means of settling international disputes, may be endangered.

The LDP’s intentions of constitutional revision extend well beyond this article, with the potential to have serious implications for free speech. A host of parties, including the UN Special Rappoteur on freedom of expression, had expressed concerns about the autonomy of the press on the passage of the Secrecy Law in December 2013. This law punishes the unauthorized disclosure of a state secret by ten years’ imprisonment for the person entrusted with the secret (e.g., a bureaucrat) and five years’ imprisonment for the person receiving it (e.g., a journalist, academic, citizen’s group). However, as one does not know what is classified as a state secret, the law could have a chilling effect on investigative journalism or whistleblowing.

In 2016, several prominent television news commentators who had been critical of policies or asked hard questions left their posts, including Kuniya Hiroko of NHK’s Close Up Gendai, Kishii Shigetada of TBS’s News 23, and Furutachi Ichirō and Koga Shigeaki of TV Asahi’s Hōdō Station. Reporters Without Borders dropped Japan’s ranking in press freedom to 72 out of 180 countries in 2016, down from 11 in 2010.

The LDP’s blueprint for constitutional revision, last published in April 2012, would change nearly all of the articles of the 1947 Constitution. Meiji University law professor Lawrence Repeta warns that some of these revisions could undermine the protection of individual rights and free speech. While the 1947 Constitution emphasizes the universality of human rights, the LDP proposes to delete Article 97, which emphasizes human rights as fundamental, timeless, and inviolable.

The LDP’s proposed Article 19-2 reads, “No person shall improperly acquire, possess or use information concerning individuals.” Not only is “information concerning individuals” so broad as to include names and photographs, as well as identifying data, but as the prohibition is against “improper” use, as opposed to “illegal” use, citizens would be taking a risk as to what a government authority might interpret as “improper.” Bloggers note that the article could make it more difficult for journalists and writers to conduct interviews, further dampening investigative journalism, or for activists to collect signatures for petitions.

Article 12, which guarantees individual freedoms and rights, would be redrafted to say that “duties and obligations accompany freedoms and rights, and [the people] shall never violate the public interest and public order.” “Freedoms and rights” would be subordinate to “public interest and public order.” The LDP’s Q&A pamphlet clarifies that “public order” is the maintenance of “social order” and a “quiet life”; i.e., individuals should not cause a nuisance while asserting their rights. As public protests are loud and occupy public space, they could easily be considered a “nuisance.”

To Article 21, which guarantees freedom of speech, press, assembly, and association, the LDP would prohibit “engaging in activities with the purpose of damaging the public interest or public order, or associating with others for such purposes…” The prohibition is not against actions that actually disturb the public order, but those that simply aim to do so; the authorities would be interpreting that aim.

Finally, the LDP proposal would grant the prime minister the power to declare a national emergency, not only for armed attacks or natural catastrophes, but also “disturbances of the social order due to internal strife, etc.,” making for a potentially broad and vague set of circumstances (Article 98). Under such emergencies, the Cabinet would be able to enact orders with the same effect as laws (Article 99), without the scrutiny of a Diet debate. As Repeta points out, speaking out against government policy during a national emergency would likely conflict with the maintenance of “public interest and public order.”

Abe downplayed constitutional revision during the campaign, framing the election as a referendum on ‘Abenomics’, his program to revive the Japanese economy. Following Abe through a series of campaign speeches on the street (gaitō enzetsu), the Asahi News Network pointedly noted that he did not mention constitutional revision even once, instead criticizing the “irresponsibility” of the opposition parties, and saying that he was only half-way through with Abenomics.

A search on Factiva on Japanese terrestrial television, on which most of the Japanese rely for news, for the campaign period (23 Jun-9 July) yielded 364 spots that mentioned the Upper House election; of these, only 41 mentioned “Constitution” or “constitutional revision.” While most spots emphasized the importance of the two-thirds majority, they did not discuss why a change in the Constitution would be significant; only a handful mentioned which articles were likely to be changed. Furthermore, these spots were sometimes placed at the end of a 30-minute program, where they were less likely to be remembered. Several opposition members questioned the conspicuous absence of any LDP discussion on constitutional revision, particularly the lack of clarification on which articles they planned to revise.

Given this lack of media emphasis, voters prioritized social security, the economy, and social programs for the elderly and child-rearing over constitutional revision. Furthermore, the fractured nature of the opposition made many voters feel they had little choice besides the LDP. Hence, voter turnout was only 54.7%—the fourth-lowest for an Upper House election, according to Kyodo News. After the election, Hōsei University professor Yamaguchi Jirō said on NHK that the lack of discussion had been “deceitful to the people” and “counter to democratic principles.”

The possible constitutional revisions are occurring five years after the nuclear accident, which exposed the underreporting of maintenance irregularities, accidents, and collusion in the nuclear industry and raised questions about media independence. Following the accident, crucial information was reported well after the fact, including the path of radiation flows (which had been predicted by a government agency), the possibility of a meltdown, and radiation leaks into the ocean. Outrage over limited information disclosure was among several factors feeding into antinuclear protests, which themselves went underreported. The potential for a further rollback on press freedoms would be an ironic consequence of the flow of momentous events and eruption of social activism that followed. But then again, the Peace Preservation Law was rammed through the Diet in 1925, silencing dissent following the disastrous Great Kantō Earthquake of 1923.

Editor’s note: A longer version of this piece originally appeared in The Asia-Pacific Journal on Sunday, July 31st.

Featured image credit: Anti-nuke protesters surround Japanese parliament 7.29 by Hajime NAKANO. CC-BY- 2.0 via Flickr.