Historically speaking, in the late 19th century, the national goal was to reorganize a typically feudalistic Japan into a modern nation-state comparable to western developed countries of that time. It was accomplished in its own way through a modernization of Japanese political, economic and social structures and through an introduction of western constitutionalism to Japanese law.
Despite the conservative party – the Liberal Democratic Party (LDP) – remaining in power almost continuously from 1947 until now, the current Constitution has never been revised since it went into effect in 1947, nor has a bid been made to initiate a formal amendment process, partly because of the high hurdle in proposing an amendment in parliament before it can be put to a referendum. The current constitution requires any amendment to be approved by a 2/ 3 majority in both houses of the Diet and subsequently, a mandatory simple majority national referendum is required. This is due to efforts by progressives to prevent constitutional revision and the realization of the wish of the very conservative. They have believed firmly that any amendment that would please conservatives will risk the development of postwar Japanese liberal democracy.
A change of power took place in 2009, from the LDP to the center left Democratic Party. The LDP became an opposition party as a consequence of a crushing defeat in the general election in 2009. 3 years later, in 2012, it succeeded in returning to power. At that very exceptional time, the LDP, as the leading opposition party, published a very conservative draft for a total amendment of the current Constitution. The main objective was to reconfirm the conservatives’ fundamental political values. This is worth analyzing in relation to this event’s theme, “Authoritarian constitutionalism”. We can consider this draft to be a result of a kind of politico-socio-psychological reaction to the development of a globalization of Japanese society. It was responding to a desire to emphasize Japanese identity as a “beautiful” traditional society in contrast to such a world-wide trend, rather than embodying an effective constitutional proposal in order to change Japanese politics practically.
By using constitutional amendment as a tool, the current Abe administration is making an attempt to render Japanese politics more authoritarian than before. However, generally speaking, as Japanese politics has been functioning in a democratic way during 70 years, even radical conservatives aren’t able to change the fundamental liberal and democratic constitutional principles now. The Japanese particular constitutional problem is that, since the ruling party has conceived constitutional amendment more as an ideological tool than as a practical one to ameliorate functioning of a Japanese liberal democratic regime, opposition parties have the tendency to prevent any constitutional amendment, which results in not having a constructive discussion.
The paper aims to explore a role of the concept of “constitutionalism” in the recent constitutional debates concerning the re-interpretation and amendment of the Constitution of Japan (particularly Article 9 which has been cherished as a ‘pacifism’ clause by the Japanese people since its promulgation) by shedding light on two intertwining elements of constitutionalism: one works as a safeguard against change and the other as a driving force to change. The paper also examines how far the concept of constitutionalism takes hold in Japan under the international influences, particularly focusing on two periods such as one just after World War II and the other after the end of the Cold War.
The word “rikken-shugi” (constitutionalism) has attracted attention beyond academics in the recent constitutional debate on Article 9 of the Constitution of Japan. In 2014 Japanese government changed the interpretation of Article 9 and realised the legislation based on the new interpretation in 2015, which allows Japan for the first time to use a right of collective self-defence under certain limited conditions. Many constitutional legal scholars have criticised the change of the interpretation (and the legislation as an outcome) by claiming that they were against “constitutionalism”. On the other hand, some international legal scholars have legitimatised the government’s position (“positive pacifism”) by emphasising the importance of enabling Japan to play a more active role in maintaining world peace, which they argue is encouraged by the constitution itself. Furthermore, taken into account the fact that the Liberal Democratic Party (LDP) for the first time manages to attain a two-third majority at both Houses of the Diet (one of the conditions for the constitutional amendment), the LDP is presently eager to push forward the amendment process including amendment of Article 9 despite the fact that there is no urgency to amend the constitution as the LDP government chose an easier route as re-interpretation of Article 9 rather than a tougher one as constitutional amendment in order to pass the above crucial legislation in the Diet. It is also interesting to note that the present LDP pre-proposal refrains from repeating the previous LDP constitutional amendment proposal in 2012 which showed a rather sceptical attitude toward Western constitutionalism (the 2012 proposal criticized the bill of rights in the present constitution as an import of Western thoughts and argued the necessity to bring back traditional values of Japanese society). Therefore, it is useful to analyse the usage of constitutionalism in the Japanese context from a wider perspective of global constitutionalism.
The presentation put things in a global perspective, discussing in particular the significance of the rise of China.
Rights practices in South Korea are cosmopolitanizing and have rich implications for the future of Global Constitutionalism, for its further development as a truly global project. Not having a regional human rights system, but with active participation by global-minded rights-holders, the South Korean Constitutional Court serves as a venue where international human rights law interacts with constitutional law in dynamic ways. The
last few years observed the Korean Court playing a leadership role in regional constitutionalist projects of promoting human rights and democracy, which reflects the Court’s evolving transnational self-identity. Asian and national tradition and culture continue to be challenged through constitutional rights review processes, accommodating both the locality of contexts and the universality of rights norms. The recent development in South Korea exemplifies a practice of bottom-up and locally grown Global Constitutionalism emerging outside the West.
After two decades of democratic consolidation, two member states of the European Union, Hungary and Poland are now in the process of authoritarian backsliding. The presentation will describe the current state of affairs (from the lack of persistent and long term mobilisation on behalf of constitutionalism to the governmental attacks on the internal and external checks, e.g. the European Union and ECHR) and address the possible scenarios of returning to constitutional democracy in the region.