Opinion Opposing the Introduction of the Provision Regarding National Emergencies into the Constitution of Japan
February 17, 2017
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (JFBA) compiled its opinion about the above-captioned provision on February 17, 2017, and submitted it to the representatives of various political parties on February 21, 2017.
Summary of the Opinion
The provision regarding national emergency (power to national emergency) could cause grave infringement of human rights. Once the power is exercised, the constitutionalism in Japan will face the risk to be harmed to the extent its recovery is difficult in any way. Taking as an example the national emergency clause in Chapter 9 of the Draft Amendment of the Constitution prepared by the Liberal Democratic Party, it provides that in the event of wars, insurgencies, major natural disasters and other emergencies designated by law it is granted that: (i) the Cabinet to be granted the power to establish a cabinet order having the same effect as a law, (ii) the Prime Minister to be granted the power to make financial expenditures, and has to direct heads of the local governments, (iii) all persons to be liable to follow the relevant instructions given by the government or public entities, (iv) the House of Representatives to be limited its power to resolve itself, and (v) exceptions to be allowed to the term of each House and the timing of election day (collectively the “Measures”).
The JFBA does not recognize the necessity to take the Measures for dealing with wars, insurgencies, and major natural disasters. Even though the national emergency clause in the said Draft stipulates the before-and-after approval by the Diet, the duration and the cancellation, the full respect to the fundamental human rights, etc., it is insufficient to prevent the abuse of power by the Cabinet or Prime Minister.
Accordingly, the JFBA opposes a revision of the Constitution of Japan, including the above Draft, to introduce the national emergency clause (power to national emergency), which contains such Measures as stipulated in the said draft, to deal with wars, insurgencies, and major natural disasters.