July 11, 2017

Today, I’m going to talk about the guarantee of fundamental human rights, one of the three key elements of the Japanese Constitution, along with pacifism and popular sovereignty.

Article 97

Article 97 of the Constitution states as follows:

The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.

This is the article that sets the fundamental human rights in stone. It states that they are to be “held for all time inviolate.”

Comparison with Meiji Constitution

The Meiji Constitution, the Constitution of the Empire of Japan, also guaranteed fundamental human rights, but “within the limits of law.” The GHQ draft decided not to place limitations upon individual human rights, but to include “public welfare” as a constraining principle. This has left the issue of balancing personal rights with the interests of society as a whole. The new Constitution also included “social rights,” such as the right to work, mandatory education, public health reform, and social security, which were not found in the Meiji Constitution.

Public Welfare vs. Individual Rights

The draft revision of the Constitution made by the ruling Liberal Democratic Party in 2016 raises the question of whether certain individual rights can be subdued for the sake of public welfare. It introduces the concept of “big human rights” vs. “small human rights” in a question-and-answer booklet explaining the draft revision’s “state of emergency” provision. The controversial provision allows authorities to practice temporary restrictions on human rights to concentrate authority in the Cabinet in the case of emergencies such as armed attacks, disturbances in social order, or major disasters.

The booklet explains the big human rights as life and property but does not explain what the small human rights entail. But, it is highly questionable, for example, whether the freedom of expression should be limited in times of emergency for the sake of property. The revision could give the State powers that overstep basic human rights during emergencies. I believe any amendment to the Constitution needs to be done with caution, because it may give the State undue powers for the sake of the “public welfare” at the cost of inviolable individual rights.

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