LEGISLATING FOR AN EMERGENCY

A package of three bills defining the legal provisions for dealing with national security emergencies, such as a military attack on Japan, is now before the National Diet, but deliberations have become bogged down, and there appears to be little likelihood of the bills’ being enacted during the current session. The need for such legislation is self-evident, though, and a historical overview of the circumstances that led to the bills’ submission would be instructive here.

The debate in Japan over the role of security forces in emergency situations is quite complex and may be difficult to follow, even for well-informed overseas readers of Japan Echo. Virtually all modern nation-states have constitutional or other basic legal provisions relating to the powers of the government and the duties of citizens in the case of a security emergency. But the Japanese Constitution, enacted under the U.S.-led Allied Occupation in 1947, contains no such provisions.

The Occupation authorities intended to ensure that Japan would never again became a security threat to the United States and the rest of the international community. The Constitution thus not only renounces the possession of war potential but also repudiates the right of belligerency. The defense of Japanese territory and the maintenance of public order were the responsibility of the Allied Powers as long as they continued to occupy the country. Leaving aside the question of whether or not this was desirable, at least this arrangement assured a prompt response to security contingencies in spite of the constitutional constraints against military action by Japan. And even after the Occupation ended in 1952, following the conclusion of the San Francisco Peace Treaty in 1951, the Japan-U.S. Security Treaty that was signed at the same time as the peace treaty explicitly called for the continued presence of U.S. forces and for their deployment in the event of national emergencies, including civil disturbances. The people of Japan may not have welcomed this, but it nonetheless provided a legal and functional arrangement to cope with security threats.

The 1960 revision of the security pact retained America’s obligation to come to Japan’s defense, but the provisions regarding U.S. intervention in civil disturbances were deleted as being unbecoming Japan’s status as an independent nation. Japan was thus left without a legal framework to identify and respond to security contingencies—except in the extreme eventuality of its coming under armed attack from another country, in which case Article 5 of the Japan-U.S. Security Treaty would automatically be invoked.

The government has long been conscious of this shortcoming, and it was raised as a topic of deliberation in the cabinet council on constitutional issues set up in 1957. In its 1964 report the council noted that emergency situations could arise not only from military attacks but also from civil disturbances, large-scale riots, major economic disturbances, natural disasters, or epidemics. The biggest defect of the postwar Constitution, according to the council’s majority view, was its “lack of provisions regarding measures to assure the existence and security of the state and the maintenance of the life of the nation.” But nothing has been done in the intervening decades to remedy this defect because of the difficulty of amending the Constitution. As stipulated under Article 96, an amendment must be initiated by a “concurring vote of two-thirds or more of all the members of each House” and then “submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon.” These hurdles have seemed too formidable to overcome.

Efforts have therefore been made to work around the constitutional void with other legal mechanisms, such as the Disaster Countermeasures Basic Law, the Disaster Relief Law, and the Large-Scale Earthquake Countermeasures Law. The emergency bills now before the Diet follow the precedent of going ahead with legislation to deal with specific contingencies without attempting to address the lack of a basic constitutional or other legal framework. The question naturally arises whether this approach is appropriate for bills outlining the use of military force, but Japan’s leading dailies have devoted little space to this important issue.

The four leading nationwide newspapers all offered their views of the government’s bills in editorials on April 17, the day following the cabinet’s approval of the proposed legislative package. Both the Asahi Shimbun and Mainichi Shimbun, which have long opposed moves to amend the Constitution out of concern that the pacifist provisions might be eliminated or watered down, recognized the need for the security bills. But the two dailies opposed the government’s bills on the grounds that they are the byproducts of a Cold War mentality and do not reflect present-day realities. They also found fault with the lack of a clear definition of “emergency” and their failure to address other, much more likely eventualities, such as large-scale terrorist attacks or intrusions by spy vessels into Japan’s territorial waters.

The Sankei Shimbun came out in favor of the proposed package, saying that the government’s submission of the security bills was a matter of course. The Yomiuri Shimbun also expressed a positive view of the government’s bills, labeling them “the first step in laying an essential legal foundation” and urging their speedy enactment to allow the debate to move on to other security-related issues.

The arguments being advanced today appear to fall into two major camps. One seeks to have the current bills withdrawn and resubmitted after they have been redrafted to eliminate their vagueness and other shortcomings. The other wants to pass the legislation now and fix any shortcomings later. But to what extent should special legislation be allowed to fill a constitutional void? With regard to this issue, former Prime Minister Nakasone Yasuhiro’s call below for a basic security law to precede the enactment of more specific legislation on dealing with emergencies is both timely and meaningful. (Kawachi Takashi, Mainichi Shimbun)

© 2002 Japan Echo Inc.