Title

Examination of the Liberal Democratic Party’s“Draft for the Amendment of the Constitution ofJapan” in the light of International Law andStandards

Author(s)Fujimoto, Koji

Citation

国際公共政策研究. 2018, 23(1), p. 21-34

Version Type VoR
URL

https://doi.org/10.18910/70589

rights
Note

Osaka University Knowledge Archive : OUKA
https://ir.library.osaka-u.ac.jp/
Osaka University

21


Examination of the Liberal Democratic Party’s “Draft for
the Amendment of the Constitution of Japan” in the light ofInternational Law and Standards*
Koji FUJIMOTO **Refereed Article
Received: 5 April 2018, Accepted: 2 August 2018

Abstract
The Liberal Democratic Party announced its “Draft for the Amendment of the Constitution of Japan” in
2012. Following the result of the general election in October 2017, Prime Minister Abe moved anew to spur an
initiative for constitutional amendment. This paper analyzes this Amendment Draft in the light of InternationalLaw, especially International Human Rights Law, and discusses major issues, in particular, restrictions o n human rights, the State’s emergency power, torture prohibition, slavery restraint and basic labor rights of public
servants. This examination’s results show that if enacted, the Amendment Draft will undermine the level ofcurrent human rights protection and cannot provide the protection of human rights in line with International
Law.

Keywords：Restrictions on Human Rights, the State’s Emergency Power, Torture Prohibition, Slavery Restraint, Basic Labor Rights of Public Servants.

* The author would like to thank Mr. Ryu UMEZU (Attorney-at-Law) for his translating Japanese into English. This paper is originally
written in Japanese. The author would like to thank Ms. Kanae DOI (Japan Director, Human Rights Watch) for suggesting the topic
treated in this paper and useful discussions. The author would also like to thank the anonymous referee s for their helpful advices on
various material issues examined in this Paper.
** Associate Professor, Department of Intercultural Studies, Keiwa College.

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国際公共政策研究第 23 巻第１号

1．IntroductionPrime Minister Shinzo ABE won a landslide victory in the general election in October 2017. At the Diet
which appointed Mr. ABE (President of the Liberal Democratic Party (hereinafter referred to as the “LDP”)) as
Prime Minister of the newly formed his fourth administration, the ruling coalition parties hold for the third time
more than two-thirds of the seats in both chambers of the Diet, exceeding the threshold for initiating
constitutional amendments. Prime Minster ABE upheld the constitutional amendment as one of six main pillarsof his policy pledge for the October general election campaign, voicing: “The LDP… will push to realize thefirst revision of the Constitution.”1
Since the formation of the LDP in 1955, the party has enshrined the establishment of self-imposedconstitution in LDP’s mission and pursued to amend the Constitution of Japan that was put in place in May
1947, following the defeat of the World War II in 1945 (hereinafter referred to as the “Current Constitution”).
However, the Japanese public’s support for amendment of the constitution has yet to be formed, thus
constitutional revision has never been realized so far. Following the result of the general election in October,however, Prime Minister ABE moved anew to spur an initiative for constitutional amendment.
The LDP has so far announced constitutional amendment drafts five times, the latest of which is the “Draft
for the Amendment of the Constitution of Japan” announced in 2012 2 (hereinafter referred to as the“Amendment Draft”). This paper analyzes the Amendment Draft in the light of International Law, especiallyInternational Human Rights Law, and discusses major issues, in particular, restrictions on of human rights, theState’s emergency power, torture prohibition, slavery restraint and basic labor rights of public servants. The
purpose of this paper is to clarify that the Amendment Draft makes the levels of protection of human rights inthese areas lower than the standards that International Law has required.
Over the past few years, many academic examinations on the Amendment Draft have been made by thescholars of Japanese domestic laws, especially constitutional law.3 Very few attempts on such examination havebeen made in the light of International law, especially the International Human Rights Law.4 In this situation,
our examination would contribute to academic research to some extent.

2.Restrictions on human rights and “public interest and public order”
2.1:Main comparisons between the Amendment Draft and the Current Constitution
While the provisions in the Current Constitution stipulate that there are limitations as general restrictions onhuman rights on the ground of “public welfare”, the Amendment Draft changes the relevant wording by
replacing “public welfare” with “public interest and public order.”5
https://www.jimin.jp/election/results/sen_shu48/political_promise/manifesto/06.html, last visited on March 31 2018.
http://constitution.jimin.jp/draft/, last visited on March 31 2018.
3
Major examples are the articles published in The Discussion of the Belief that the Constitution of Japan should be amended (Houritsu Jiho
Zokan), Nippon Hyoron Sha, 2013.
4
We can find that the international law discourses on the amending the Constitution of Japan have focused on the pacifism which article 9
stipulates, but not on the protection of human rights. Major example is Hisakazu FUJITA, “Pacifism and International Contribution – Examinationon the Argumentation on the Amendment of Article 9 in the light of International Law” Jurist, No. 1289, Yuhikaku, 2005.
5
The Current Constitution provides in Article 12 and Article 13 that human rights are generally subject to limitations on grounds of “publicwelfare.” In addition, Article 22 and Article 29 specifically stipulate that freedom to choose occupations and economic freedom including property
rights are subject to restrictions on grounds of public welfare. The Amendment Draft, on the other hand, replaces the word “public welfare” inArticle 12, Article 13 and Article 29 in the Current Constitution with the terms “public interest and public order.” In addition, whereas the Current
1
2

Examination of the Liberal Democratic Party's“Draft for the Amendment of
the Constitution of Japan”in the light of International Law and Standards

23

Table 1 : Comparisons on Articles 12, 13 and 21

LDP’s

Amendment

Draft

2012

of

the

Current Constitution

Constitution(Duties and responsibilities of the people)
Article 12 The freedoms and rights guaranteed

Article 12 The freedoms and rights guaranteed

to the people by this Constitution shall beto the people by this Constitution shall bemaintained by the constant endeavor of themaintained by the constant endeavor of thepeople. The people shall refrain from any abusepeople, who shall refrain from any abuse ofof these freedoms and rights, shall be aware

these freedoms and rights and shall be always

that

responsible for utilizing them for the public

freedoms

andrightscomewith

responsibilities and obligations, and shall not

welfare.

at any time infringe the public interest andpublic order.
(Respect for people as persons)
Article 13 All of the people shall be respected

Article 13 All of the people shall be respected

as persons. Their right to life, liberty, and theas individuals. Their right to life, liberty, and the

pursuit of happiness shall, to the extent that it

pursuit of happiness shall, to the extent that it

does not interfere with the public interest anddoes not interfere with the public welfare, be thepublic order, be the supreme consideration insupreme consideration in legislation and in otherlegislation and in other governmental affairs.

governmental affairs.

(Freedom of expression)
Article 21

Article 21

1.

1.

Freedom of assembly and associations

Freedom of assembly and associations

as well as speech, press and all other forms ofas well as speech, press and all other forms ofexpression are guaranteed.

expression are guaranteed.

2.
theNotwithstanding the provisions of [Newly established]precedingparagraph,engaging

inactivities with the purpose of harming the
public interest and public order and forming
associations to attain this purpose shall not be
permitted.
The Questions and Answers (enlarged edition) prepared by the LDP6 (hereinafter referred to as the “Q&A”)
cites in Q15 the following two points as the main reasons for changing the wording from “public welfare” to“public interest and public order”. They are: A) to eliminate the vagueness of “public welfare”; and B) to clarify
that the limitations of fundamental human rights guaranteed by the Constitution are not confined to the cases
Institution guarantees freedom of association in Article 21 without any limitations, the Amendment Draft newly introduces limitations on such
freedom on grounds of “public interest and public order” in Article 21, paragraph 2. It is noted that, unlike the Current Constitution, theAmendment Draft guarantees freedom to choose occupations without any restriction in Article 22.
6
http://constitution.jimin.jp/faq/, last visited on March 31 2018.

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国際公共政策研究第 23 巻第１号

involving conflicts between human rights.
In connection with B) above, the “Q&A” Q15 criticizes the mainstream theory, which asserts “direct
limitations on rights by setting public interest above individual human rights cannot be justified” by “publicwelfare”, is simply helpless in explaining human rights could be restricted on “grounds of maintenance ofscenic beauty of towns or sexual morality.” In other words, “public interest” in the context of “public interest
and public order” in the Amendment Draft is considered to be something “above individual human rights” and“justifies direct limitations on rights.” With regard to the meaning of “public order” in the Amendment Draft,“Q&A” Q15 explains “it represents a ‘social order’ or a ‘peaceful social life.’” Q15 adds that “it is quite
obvious that the individuals should not cause nuisance to people’s social lives when they claim their humanrights” and that the Amendment Draft “merely acknowledges this fact in legal form, and hence, resulting in no
substantial limitations on human rights.”
Judging from the “Q&A”, it is conceivable that “public interest” or “public order” is assumed to function as
an endorser for the constitutionality for limitations on human rights when they are determined to have legitimate
grounds for such limitations as well as to function as a coordinator inherent in “public welfare” in the “case of
conflicts between human rights.”
Under the Current Constitution, it is difficult to affirm that the basic concept on “public welfare” is common
among not only constitutional scholars but also the domestic courts.7 Therefore, we can say that the concept
cited as “the mainstream theory” by “Q&A” is not always common among scholars or courts. Currently, it hasrecognized by constitutional scholars that the concept on “public welfare” is summarized roughly as follows:“public welfare” stipulated in article 12 and 13 is the general principle of limitation on human rights that
limitations for the purpose of protecting people’s life and safety etc. are permitted and“public welfare”

stipulated in article 22 and 29 reveals that the government can control economic freedom in order to construct a
welfare state, protect vulnerable groups in society and so on.8

2.2 : Examination in the light of international standards
With regard to the “public welfare” under the Current Constitution, the Human Rights Committee points out
in its concluding observations on the sixth periodic report submitted by the Japanese government as follows:“The Committee reiterates its concern that the concept of ‘public welfare’ is vague and open-ended and may
permit restrictions exceeding those permissible under [the International Covenant on Civil and Political
Rights(hereinafter referred to as the “Covenant”)].”9

This concern has been repeatedly pointed out since the Committee’s concluding observations on the fourthreport submitted by the Japanese government10. If such vagueness had been eliminated in the Amendment Draft
as intended (see A above) and had resulted in effectively narrowing the scope of restrictions not to exceed thosepermissible under the Covenant, the Amendment Draft could have been positively evaluated to some extent.
Hideki SHIBUTANI and Masahiro AKASAKA, Constitution 2, 6th ed., Yuhikaku, 2016, p. 341.
Ibid.
9
U. N. Document, CCPR/C/JPN/CO/6, 2014, para. 22.
10
U. N. Document, CCPR/C/79/Add.102, 1998, para. 8.
78

Examination of the Liberal Democratic Party's“Draft for the Amendment of
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25

However, the replacement of the term “public welfare” with “public interest and public order” would rather giverise to more situations that “may permit restrictions exceeding those permissible under the Covenant.” Thereason therefor is as follows.
As “public interest” listed among the permissible grounds for limitation is emphasized in legitimizing “direct
limitation on rights” in the Amendment Draft, it is highly likely that a limitation on human rights is regarded as
constitutional if the purpose of a limitation is determined to fall within “public interest.” Similarly, with regard
to “public order”, a limitation on human rights is highly likely to be regarded as constitutional if the purpose ofa limitation is determined to fall within “social order” or “nuisance to people’s social life” (the Q&A Q15).
Given that the Q&A recognizes such function is not included in “public welfare”, the scope for permissible
limitations on human rights is considered broadened by replacing the word “public welfare” with “public
interest and public order.” As a result, the situations that “may permit restrictions exceeding those permissible
under the Covenant” increase all the more.
In order to substantiate the legitimacy of using “public interest and public order”, the Q&A Q15 cites that: theCovenant clearly stipulates human rights are subject to limitations on grounds of “protection of national security,
public order, or public health or morals.” This presumably refers to Article 19, paragraph 3, item (b) of thelimitation clause regarding freedom of expression. It should be pointed out, however, that the said clause is not
the provision for general limitations on human rights but relates to freedom of expression. In addition, it should
be noted the introductory part of paragraph 3 of the said article prescribes that these restrictions shall only besuch as “are provided by law and are necessary”: (a) for respect of the rights or reputation of others; (b) for theprotection of national security or of public order (order public), or of public health or morals. In other words,
justification for restrictions on human rights cannot be established merely on the ground of the above-listed
permissible grounds for limitation. It must satisfy that: A) the relevant restrictions are provided for by law andB) the relevant restrictions are necessary to attain the above-listed purposes. That is to say, the Covenantrequires the measure of restriction should be necessary in addition to the restrictions falling within the listed
permissible grounds for limitation. Using the word “necessary” indicates “that limitations on rights are
permissible only when they are essential, i. e., inevitable.”11
The Human Rights Committee clearly emphasizes the above points, and states, in particular, the requirementB) above should be judged based on the “strict tests of necessity and proportionality.”12 It is generally
understood that the “strict tests of necessity and proportionality” require that: “a restriction imposed must be theone which is considered appropriate to attain the relevant purpose; and, if a restriction imposed is considered toexert excessive control beyond reasonable limit, the restriction should be judged as illegal in the light of the
proportionality between purpose and measure (i.e. whether that much measure is ‘necessary’ or not to attain therelevant purpose).”13 The Human Rights Committee’s consideration on individual communications is in linewith the above-mentioned general understanding.14 Unlike the Covenant, the Amendment Draft does not place
any safeguards from the point of the proportionality between purpose and measure.
11
Alexandre Charles KISS, “Permissible Limitations on Rights”, The International Bill of Rights, Louis HENKIN(ed.), New York, Columbia
University Press, 1981, p. 308.
12
U. N. Document, CCPR/C/GC/34, 2011, para.22.
13
Hae Bong SHIN, International Human Rights Law, 2nd ed., Shinnzansha, 2016, pp. 203-204
14
Koji FUJIMOTO, “A Consideration on the Limitation Clauses of the International Covenant on Civil and Political Rights (2)” , International
Public Policy Studies Vol.8, No.1, 2003, pp. 132-157.

26

国際公共政策研究第 23 巻第１号

From the above, the Amendment Draft which provides for the restriction on human rights on grounds of“public interest and public order” allows wider range of limitations on human rights than those under theCovenant. Moreover, “Q&A”’s claim of “resulting in no substantial limitations on human rights” isunsubstantiated.

3. State of emergency clauses
3.1 : Main comparisons between the Amendment Draft and the Current Constitution
Table 2 : Comparisons on Articles 98 and 99

LDP’s

Amendment

Draft

2012

of

the

Current Constitution

Constitution(Declaration of a state of emergency)
Article 98
1. The Prime Minister, in the event ofarmed attacks on the State from abroad,
disturbances of social order due to civil unrest
and the like, large-scale natural disasters due
to earthquakes and the like, or other states of
emergency as provided by law, may, when
deemed particularly necessary, issue thedeclaration of a state of emergency after acabinet meeting, as provided by law.
2. A state of emergency shall be declaredwith the prior or subsequent approval of theDiet, as provided by law.

3. The Prime Minister shall cancel thedeclaration of a state of emergency promptly
through a cabinet meeting, as provided bylaw, when a resolution of disapproval has
been made in cases mentioned in thepreceding paragraph, the Diet resolves tocancel the declaration of a state of emergency,
or the continuation of the said declaration is
no longer deemed to be necessary due tochanges of the situation.
Moreover, when intending to continue todeclare a state of emergency for more than
one-hundred days, prior approval of the Diet

[Newly established]Examination of the Liberal Democratic Party's“Draft for the Amendment of
the Constitution of Japan”in the light of International Law and Standards

27

must be obtained for each one-hundred days.
(Effects of the declaration of a state of[Newly established]emergency)
Article 99
3. In the case where the declaration of astate of emergency is issued, every person
shall be subject to the orders of the State andother public organs issued in connection withthe measures taken at the state relating to therelevant declaration to protect lives, bodies
and properties of the people, as provided bylaw. Even in such case, Article 14, Article 18,
Article 19, Article 21 and other provisions
relating to fundamental human rights shall be
the supreme consideration.
There is no provision for a state of emergency in the Current Constitution. Many constitutional scholars are
considered to assert that the Current Constitution does not permit the national power to be concentrated in theadministrative authority in a case of the state of emergency.15
The Amendment Draft adds Chapter 9 entitled “State of Emergency” in accordance with which the humanrights protection may be derogated from. Article 99, paragraph 3 of the Amendment Draft also clearlyprescribes that the measures of derogation based on the declaration of a state of emergency shall be taken “at thestate relating to the relevant declaration to protect lives, bodies and properties of the people” and lists theprovisions relating to human rights that “shall be the supreme consideration” even in such state.

3.2 : Examination in the light of international standards
Article 4, paragraph 1 of the Covenant stipulates the conditions for derogating from the Covenant. Amongthese conditions, the provisions relevantly important to Chapter 9 of the Amendment Draft are: A) derogation
may be made “in time of public emergency which threatens the life of the nation” (paragraph 1); B) measures ofderogation may be taken “to the extent strictly required by the exigencies of the situation” (paragraph 1);
provided that C) such measures are not “inconsistent with the relevant State Party’s other obligations underinternational law” (paragraph 1); and D) no derogation from “Articles 6, Article 7, Article 8 (paragraphs 1 and2), Article 11, Article 15, Article 16 and Article 18” of the Covenant may be made (paragraph 2 of Article 4)”.
Set out below are the analyses of Chapter 9 of the Amendment Draft in the light of the above respective
conditions.

3.2.A : Derogation may be made “in time of public emergency which threatens the life of the nation”
In order for a situation to be regarded as a “state of public emergency”, the “Siracusa Principles” formulated
15

Masayuki UCHINO, The Points in the Interpretation of the Constitution, 4th ed., Nippon Hyoron Sya, 2005, p. 205.

28

国際公共政策研究第 23 巻第１号

by the International Commission of Jurists in 1984 and the “Paris Minimum Standards” adopted by theInternational Law Association in the same year require a State Party to determine whether or not there exists a“state of public emergency” based on strict and objective standards16. In any case, when a situation is regarded
as a “state of public emergency,” there must be exactly the existence of extreme emergent situation17 and thelife of the nation must be actually, directly threatened to an exceptional extent18.
While the Amendment Draft cites “armed attacks from abroad” and “disturbances of social order” as specificexamples of “states of emergency” in Article 98, paragraph 1, no mechanism is envisaged for verification of theexistence of such states on strict and objective standards. As such, it is possible that any and all civil unrests andlarge-scale disasters are regarded as states of public emergency under the Amendment Draft, although the
Human Rights Committee expresses its view that “not every disturbance or catastrophe qualifies as a public
emergency which threaten the life of the nation.”19 Furthermore, it should be noted the Amendment Draft
permits the states of emergency “provided by law” in addition to those specified above. In other words, theAmendment Draft entrusts the Diet with determining whether or not a situation falls into a category of state of
emergency. And yet, the Diet is not required under the Amendment Draft to apply strict standards indetermining the existence of state of emergency, which causes concern in some quarters that the proposed text
in the Amendment Draft enables a legislation that legitimizes large-scale labor disputes and the like as states of
emergency.20 Derogation from protection of human rights could then likely be permitted even in the situations
that are not permissible under the international standards including Article 4 of the Covenant.

3.2.B : Measures of derogation may be taken “to the extent strictly required by the exigencies of thesituation”
In General Comment No. 29, the Human Rights Committee states this requirement reflects the “principle ofproportionality21.” It also states that this requirement “relates to the duration, geographical coverage andmaterial scope of emergency and any measures of derogation resorted to because of the emergency22.”
For example, in the case where the duration of the state of emergency has expired, the measures of derogationmust be terminated immediately. In this connection, the Siracusa Principles asserts that the necessity of
derogation measures should be reviewed for prompt and periodic independent review by the legislature.23
Article 99, paragraph 3 can be interpreted that “the Diet resolves to cancel the declaration of a state of
emergency” during the first 100 days and for more than this first 100 days. Moreover this provision also gives
the Diet the competence to review the necessity of derogation at regular intervals (for each one-hundred days24).
16“Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights”, reprinted in
Human Rights Quarterly, Vol.7, 1985(hereafter, The Siracusa Principles), p.1ff. “Paris Minimum Standards of Human Rights in a State ofEmergency”, reprinted in American Journal of International Law, Vol. 79, 1985, p.1072ff.
17
Kohki ABE, Opposing Dichotomies : Protection of Human Rights in a State of Emergency, Human Rights International, No. 14, Sinzan sha,
2003, p.4.
18
Manfred NOWAK, U. N. Covenant on Civil and Political Rights – CCPR Commentary, 2nd ed., N. P. Engel, 2005, p. 90.
19
U. N. Document, General Comment No. 29, CCPR/C/21/Rev.1/Add.11, 2001, para.3.
20
Kouju NAGAI, Are State of Emergency Clauses Necessary in the Constitution?, Iwanami Shoten, 2016, p.63.
21
U. N. Document, General Comment No. 29, CCPR/C/21/Rev.1/Add.11, 2001, para. 4.
22
Ibid.
23
The Siracusa Principles, op. cit., p. 9, para. 55. Nowak quote this paragraph of the Siracusa Principles affirmatively. Manfred NOWAK, op. cit.,
pp. 98.
24
The Japan Federation of Bar Associations criticize that this period (one-hundred days) for the regular review is too long because the measures ofderogation should be exceptional measures. Opinion Opposing the Introduction of the Provision Regarding National Emergenciesinto theConstitution of Japan, https://www.nichibenren.or.jp/library/ja/opinion/report/data/2017/opinion_170217_03.pdf (last visited on April 1 2018),
2017, p. 18. See also, Kouju NAGAI, op. cit., pp. 64-65.

Examination of the Liberal Democratic Party's“Draft for the Amendment of
the Constitution of Japan”in the light of International Law and Standards

29

In consequence, it could be said that the Amendment Draft regulates not to continue the measures of derogation
after the expiry of the state of emergency.
With regard to specific measures of derogation, Article 99, paragraph 1 of the Amendment Draft prescribesthat the Cabinet may enact cabinet orders having an effect equivalent to law, and the Prime Minister may make“necessary fiscal expenditures” and “issue necessary orders to the chief executive officers of the local
governments.” The legitimacy of these measures is ensured as these measures are resorted to “as provided bylaw.” The “Q&A” Q40 explains: “As the details thereof shall be prescribed by law, the Prime Minister is notsupposed to be able to do anything.” However, the Amendment Draft does not include any provision concerning
the principle that the measures of derogation are taken based on the principle of proportionality; hence the text
is worded in a way that allows the relevant laws to give the Cabinet and the Prime Minister the authority
exceeding the “extent strictly required by the exigencies of the situation” (Article 4, paragraph 1 of theCovenant).

3.2.C : Measures of derogation may not be inconsistent with the “State Party’s other obligations
under international law”
Among Japan’s “other obligations under international law”, those that are noteworthy are Common Article 3,
paragraph 1, item (d) of the Geneva Conventions (I, II, III and IV) 1949 and the provisions of the Geneva
Convention (IV) 1949, ratified by Japan.
Common Article 3, paragraph 1, item (d) prohibits, in the case of “armed conflict not of an international
character”, “the passing of sentences and the carrying out of executions without previous judgment pronounced
by regularly constituted court affording all the judicial guarantees which are recognized as indispensable bycivilized peoples” with respect to “persons taking no active part in the hostilities.” That is to say, Japan isprohibited from derogating from the procedural right.
In this connection, the Amendment Draft guarantees such procedural right in Article 31 through Article 40.
However, this right is not listed in Article 99, paragraph 3 among the rights that “shall be the supremeconsideration”, which means this procedural right is likely to be exposed to a danger of derogation in a “state of
emergency” in conflict with the provision of the Common Article 3, paragraph 1, item (d) of the Geneva
Conventions.
The Geneva Convention (IV) 1949 relates to the protection of civilian persons in time of war and prescribes
the details as to how protections are specifically ensured. The Convention imposes States obligation to provide
special protection to certain category of civilian persons, such as children, wounded, pregnant women, who
require special protection in time of war.

It needs to be mentioned in this connection that the Convention on

the Rights of the Child does not include derogation clauses and that the Committee on the Rights of the Childshows its understanding to the effect that the provision of the said Convention is applicable in time of war andemergency situations as well25. This means that derogation of rights of children is not permitted even underemergency situation, such as war. As such, there are issues in the Amendment Draft in that it lacks the point ofview from the special protection of civilian persons who require special protection, and that the rights or
25

U. N. Document, CRC/C/10, 1992, para. 67 The Human Rights Committee also shows their interpretation that the United Nations Convention
on the Rights of the Child is applicable at a state of emergency. See, U. N. Document, General Comment No. 29, ibid., para. 10.

30

国際公共政策研究第 23 巻第１号

children may be subject to derogation at a “state of emergency”.

3.2.D : No derogation from “Articles 6, Article 7, Article 8 (paragraphs 1 and 2), Article 11, Article
15, Article 16 and Article 18” of the Covenant may be made
Under the Covenant, certain human rights may not be derogated from by the declaration of a state of
emergency, but the Amendment Draft does not include any provision that stipulates clearly this point. It
contains, if anything, Article 99 paragraph 3 which prescribes that Article 14 (right of equality), Article 18(freedom from bondage and involuntary servitude), Article 19 (freedom of thought and conscience), Article 21(freedom of expression) and other provisions relating to fundamental human rights “shall be the supremeconsideration.” This means, however, that the human right provisions listed above “shall be the supremeconsideration” but could be subject to the measures of derogation.

4. Prohibition of torture
4.1 : Main comparisons between the Amendment Draft and the Current Constitution
Table 3 : Comparisons on Article 36

LDP’s

Amendment

Draft

2012

of

the

Current Constitution

Constitution(Forbiddance of torture and cruel punishment)
Article 36 The infliction of torture by any

Article 36 The infliction of torture by any

public officer and cruel punishments are

public officer and cruel punishments are

forbidden.

absolutely forbidden.

Article 36 of the Amendment Draft states: “The infliction of torture by any public officer and cruelpunishment are forbidden.” It omits “absolutely” from the text of the Current Constitution. As the “Q&A” does
not contain anything about Article 36 of the Amendment Draft, no explanation is provided as to the reason foreliminating the word “absolutely.”“Absolute” forbiddance of torture is prescribed in an effort to get away from many inflictions of torture by
public officers before World War Ⅱ.26 By placing the word “absolutely” in the text, Article 36 of the Current
Constitution allows making no exceptions to forbiddance of torture and cruel punishment by any public officer.
Therefore, as a result of omitting “absolutely” from the text, it becomes unclear that making an exception tosuch forbiddance is absolutely not permissible, thus resulting in creating room for interpretation which allows
exceptions to such forbiddance being possible pursuant to Article 12 and Article 13 of the Amendment Draft.
Moreover, Article 98, paragraph 3 of the Amendment Draft does not include Article 36 as one of the provisions
relating to fundamental human rights which “shall be the supreme consideration” in the case where thedeclaration of a state of emergency is issued. Consequently, the Amendment Draft creates the possibility of
26

Koji SATO, Constitution, 3rd ed., Seirin-Shoin, 1995, p. 597.

Examination of the Liberal Democratic Party's“Draft for the Amendment of
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31

derogation from Article 36 at a state of emergency as well.

4.2 : Examination in the light of international standards
Article 7 of the Covenant relates the provision of the prohibition of torture or cruel punishment, and the “textof Article 7” is the one which “allows of no limitation.”27 Therefore, the Human Rights Committee observes
that “no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any
reasons, including those based on an order from a superior officer or public authority.”28
It is of note that Article 4, paragraph 2 of the Covenant specifically lists Article 7 as one of the provisions
from which derogations cannot be made even in a “state of public emergency.” Accordingly, it is also viewedthat the human rights guaranteed by Article 7 have absolute nature in the meaning that the said article “mustremain in force” even in a state of emergency.29 In addition, this view is reflected in the provisions of Article 3
and Article 15, paragraph 2 of the European Convention on Human Rights as well as in the provisions of Article
5, paragraph 2 and Article 27, paragraph 2 of the American Convention on Human Rights. Therefore, we canagree with NOWAK’s phrase, “Its unconditional recognition by the present community of States justifies theview that torture is prohibited by customary international law and even ranks as jus cogens under internationallaw, pursuant Article 53 of the Vienna Convention on the Law of Treaties.”30
In contrast, the Amendment Draft proposes a revision which excludes absolute nature of human rights, hencein violation of International Human Rights Law.

5. Slavery restraint
5.1 : Main comparisons between the Amendment Draft and the Current Constitution
Table 4 : Comparisons on Article18

LDP’s

Amendment

Draft

2012

of

the

Current Constitution

Constitution(Freedom from physical restraint and servitude)
Article 18

Article 18

1. No person, irrespective of his or her will,

No person shall be subject to any slavery

shall be subject to physical restraint in social

restraint. (The rest is omitted.)or economic relationships.

While the Current Constitution prohibits “any slavery restraint”, the Amendment Draft changes the wording
and prohibits physical restraint in “social or economic relationships.”
The “Q&A” Q16 explains the reason for not using the terms “slavery restraints” in the Amendment Draft as
U. N. Document, General Comment No. 20 (adopted in 1992), HRI/GEN/1/Rev. 9 (Vol.1), 2008, para. 3.
Ibid.
29
Ibid.
30
Manfred NOWAK, op. cit., pp. 157-158.
27
28

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国際公共政策研究第 23 巻第１号

follows: “As the terms ‘slavery restraint’ are considered to originate from the countries where slavery system
historically existed, these words are replaced with an easy-to-understand expression that well fits in Japan’sconstitution.”
The “Q&A” also explains the meaning of “social or economic relationships” in the Amendment Draft as
follows: “This paragraph assumes that ‘social relationships’ are those with occult religious groups and the likeand ‘economic relationships’ are those relating to ‘person selling himself/herself to bondage.’ The Amendment
Draft does not permit such unreasonable physical restraints even with the person’s consent, exactly likewise in
the case of the Current Constitution. The meaning of the provision of the Current Constitution will not change
because of the change of the word expression in the provision.”
Therefore, according to “Q&A”’s understanding, Article 18 of the Amendment Draft does not change thespirit, etc. of Article 18 of the Current Constitution, but merely changes the word expression of the provision. Itmeans, in turn, that the change in the Amendment Draft will be nothing other than changing the terms of“slavery restraint” in the Current Constitution to the terms of “physical restraint” in “social or economic
relationships.” In conclusion, one can say that the Amendment Draft is nothing but a proposal which confines
the scope of the application of this provision within the acts of private citizens and excludes the acts of the State.
On the constitutional theories, Article 18 of the Current Constitution is recognized as the provision which
prohibit the State and private citizens from restraining someone as a slave31.

5.2 : Examination in the light of international standards
The provisions of Article 8, paragraphs 1 and 2 of the Covenant prohibit the State to hold any person inslavery or servitude. Human Rights Committee has raised the concern for the technical intern training

program in relation to Article 8 of the Covenant since the examination of the fifth periodic report of Japan in
2008. In Most recent Concluding Observation on Japan, the Human Rights Committee notes with concern as
follows:“The Committee notes with concern that, despite the legislative amendment extending the protection oflabour legislation to foreign trainees and technical interns, there are still a large number of reports of sexual
abuse, labour-related deaths and conditions that could amount to forced labour in the technical intern training
programme (arts. 2 and 8).”32
Indeed, private enterprise put many foreign trainees under that much conditions, but the technical interntraining program has been formed by the law the Diet enacted and the ordinances of the Ministry of Justice.
Therefore it is the State that has duty to improve the conditions of many foreign trainees which is contrary to
Article 8 of the Covenant. This conclusion is also supported by the nature of this Article 8: this provision
require the State to take affirmative and active measures to ensure that no one shall be held in slavery orservitude.33 The Amendment Draft which confines its scope within the acts between private citizens does not
Koji SATO, op. cit., p. 585, Hideki SHIBUTANI and Masahiro AKASAKA, op. cit., Yuhikaku, 2016, p. 21.
U. N. Document, CCPR/C/JPN/CO/6, 2014, para. 16.
33
Scott N. CARLSON and Gregory GISVOLD, Practical Guide to the International Covenant on Civil and Political Rights, Transnational
Publishers, Inc., 2003, p. 78.
31
32

Examination of the Liberal Democratic Party's“Draft for the Amendment of
the Constitution of Japan”in the light of International Law and Standards

33

go as far as to require the State “to take affirmative and active measures.” In this regard, the Amendment Draft
takes a backward step compared with the human rights protection required by the Covenant.

6. Basic labor rights of public servants
6.1 : Main comparisons between the Amendment Draft and the Current Constitution
Table 5 : Comparisons on Article 28

LDP’s

Amendment

Draft

2012

of

the

Current Constitution

Constitution(Right of workers to organize, etc.)
Article28

Article 28

1. The right of workers to organize and to

The right of workers to organize and to bargain

bargain and act collectively is guaranteed.

and act collectively is guaranteed.

2. With regard to public servants, in view of[Newly established]

the fact that they are servants of the wholecommunity, all or part of their rights
prescribed in the preceding paragraph may
be restricted, as provided by law. In suchcase, necessary measures shall be taken to
improve the working conditions of public
servants.

The Current Constitution guarantees basic labor rights in Article 28, imposing no limitations thereon. The
Amendment Draft, on the other hand, guarantees basic labor rights in Article 28, paragraph 1 with nearly thesame wording as Article 28 of the Current Constitution, although paragraph 2 of the same article prescribes thatpublic servants’ basic labor rights may be restricted, “as provided by law.”With regard to the intent of Article 28, paragraph 2 of the Amendment Draft, the “Q&A” Q22 explains that“the provision has been designed to explicitly reflect in the law the admitted fact that public servants’ basic
labor rights are restricted in exchange for compensatory measures including National Personnel Authority’s
recommendation on salaries for public servants.”
Under the Current Constitution, the Supreme Court, in early times, judged the limitation on the human rights
of public servants simply because they were servants of the whole community. This judgement has been
criticized on the basis that the concept “servants of the whole community” is too vague to use as the ground of
permissible limitation.34 Thereafter, the Supreme Court declared that all of the basic labor rights of public
servants may not be restricted because of the concept “servants of the whole community”. Currently, it is
supported by most constitutional scholars that such limitations on the basic labor rights should be minimum
34

Koji SATO, op. cit., pp. 432-433.

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necessary for the nature of the duty of the public servant concerned.35

6.2 : Examination in the light of international standards
It is definitely true that basic labor rights of public servants are subject to wide-ranging statutory restrictions
under the Current Constitution. It has been pointed out that there are some violations of the International Human
Rights Law with respect to certain statutory restrictions. For example, the Japanese government was urged
pursuant to the ILO Conventions No.87 and No.98 by the Committee on Freedom of Association of the ILO, inparticular, to fully grant the rights to organize and to bargain collectively to public servants to whom these rights
are totally denied36. Another example is that the Committee on Economic, Social and Cultural Rights expressed
its concern about the general prohibition of strikes for all public servants in its concluding observations and also
stated there its opinion that this situation contravenes Article 8, paragraph 2of the International Covenant on
Economic, Social and Cultural Rights as well as the ILO Convention No.87.37
The Amendment Draft will give constitutional backing for the accomplished facts and lead to confirming andfixing the present situations which are in contravention of the International Human Rights Conventions.

7. Conclusion
This examination’s results show that the Amendment Draft undermine the level of current human rights
protection and cannot provide the protection of human rights in line with International Law, e.g. the Covenant,
the Convention on the Rights of the Child, the Geneva Conventions, the International Covenant on Economic,
Social and Cultural Rights, the ILO Conventions No.87 and No.98. Japan ratified all these treaties and has been
incorporated in the human treaty system38 which each treaty established. These human treaty systems havecontributed to the improvement of human rights situations in Japan. Therefore, amending Current Constitution
would deteriorate the current human rights situations without examining the compatibility with the protection ofhuman rights which these treaties and their systems require.

See, Koji SATO, op. cit., p. 433, Nobuyoshi ASHIBE, Constitution, 5th ed., Iwanami Shoten, 2011, p. 269, Masayuki UCHINO, op. cit., 43,
Hideki SHIBUTANI and Masahiro AKASAKA, op. cit., pp. 328-330.
36
Cases Nos 2177 and 2183 (Japan): Interim report, GB.327/INS/4/1, 2016, para. 466.
37
U. N. Document, E/C.12/1/Add.67, 2001, para. 21.
38
See, for example, Suzanne EGAN, The UN Human Rights Treaty System: Law and Procedure, Bloomsbury Professional, 2011.
35