Revising a Constitution Through a State of Exception: Post-Fukushima Japan

People protest the planned relocation of a US military base in Japan to Okinawa's Henoko coast on April 17, 2015. (Reuters / Issei Kato)
People protest the planned relocation of a US military base in Japan to Okinawa’s Henoko coast on April 17, 2015. (Reuters / Issei Kato)

By Joseph Essertier, World BEYOND War, March 29, 2021

“It is the duty of jurists to verify that the rules of the Constitution are respected, but the jurists are silent.”
Giorgio Agamben, “A Question,” Where Are We Now? The Epidemic as Politics (2020)

Like the “9/11” of the United States, the “3/11” of Japan was a watershed moment in human history. 3/11 is the shorthand way of referring to the Tōhoku earthquake and tsunami that occurred on the 11th of March, 2011 sparking the Fukushima Daiichi Nuclear Disaster. Both were tragedies that resulted in tremendous loss of life, and in both cases, some of that loss of life was the result of human actions. 9/11 represents the failure of many U.S. citizens; 3/11 represents the failure of many citizens of Japan. When U.S. progressives recall the aftermath of 9/11, many think of the state lawlessness and violations of human rights that resulted from the Patriot Act. Somewhat similarly for many Japanese progressives, state lawlessness and violations of human rights would come to mind when they recall 3/11. And it could be argued that both 9/11 and 3/11 resulted in violations of the rights of Japanese people. For example, the increased fear of terrorism after 9/11 gave conservatives greater momentum to revise the constitution with the excuse of the “rapidly changing international situation surrounding Japan”; Japanese became entangled in the wars in Afghanistan and Iraq; and there was increased surveillance of people in Japan after 9/11 just as in other countries. One a terrorist attack and the other a natural disaster, but both have changed the course of history.

Ever since it was promulgated, there have been violations of the Constitution of Japan, but let us use this opportunity to review some of the state lawlessness and violations of human rights that have resulted from the three crises 9/11, 3/11, and COVID-19. I argue that failing to prosecute, rectify, or stop violations of the Constitution will ultimately weaken and erode the authority of the Constitution, and soften up Japanese citizens for ultranationalist constitutional revision.

Post-9/11 Lawlessness 

Article 35 protects the right of people “to be secure in their homes, papers and effects against entries, searches and seizures.” But the Government has been known to spy on innocent people, especially on communists, Koreans, and Muslims. Such spying by the Japanese government is in addition to the spying that the U.S. government engages in (described by Edward Snowden and Julian Assange), which Tokyo seems to allow. Japan’s public broadcaster NHK and The Intercept have exposed the fact that Japan’s spy agency, the “Directorate for Signals Intelligence or DFS, employs about 1,700 people and has at least six surveillance facilities that eavesdrop around the clock on phone calls, emails, and other communications”. The secrecy surrounding this operation causes one to wonder how “secure” people in Japan are in their homes.

As Judith Butler wrote in 2009, “Nationalism in the US has, of course, been heightened since the attacks of 9/11, but let us remember that this is a country that extends its jurisdiction beyond its own borders, that suspends its constitutional obligations within those borders, and that understands itself as exempt from any number of international agreements.”  (Chapter 1 of her Frames of War: When Is Life Grievable?) That the U.S. government and American leaders are constantly creating exceptions for themselves in their relations with other nations is well-documented; pro-peace Americans are aware of this obstacle to peace. Some Americans are also aware that our government officials, both Republicans and Democrats, suspend our country’s constitutional obligations when they rubber stamp and otherwise breathe life into the Patriot Act. Even when unpopular former President Trump “floated the idea of making the government’s surveillance powers permanent,” there was “nary a protest from anyone about its impact on the rights of the American people”.

Few seem to be aware, however, that Washington exported our country’s 9/11 hysteria to other countries, even pushing other governments to violate their own constitutions. “Constant pressure from senior officers of the U.S. government is an important factor driving Japan to tighten its secrecy laws. Prime Minister [Shinzo] Abe has repeatedly declared that the need for a tougher secrecy law is indispensable to his plan to create a National Security Council based on the American model”.

Japan followed in the footsteps of the U.S. in December 2013 when the Diet (i.e., the national assembly) passed a controversial Act on the Protection of Specially Designated Secrets. This law posed a “severe threat to news reporting and press freedom in Japan. Government officials have not shied away from intimidating reporters in the past. The new law will grant them greater power to do so. Passage of the law fulfills a longstanding government objective to gain additional leverage over the news media. The new law could have a withering effect on news reporting and thus on the people’s knowledge of the actions of their government.”

“The United States has armed forces and a law to protect state secrets. If Japan wants to conduct joint military operations with the United States, it has to comply with the U.S. secrecy law. This is the background for the proposed secrecy law. However, the draft bill reveals the government’s intent to cast the legislation’s scope much more broadly than that.”

Thus 9/11 was an opportunity for ultranationalist government in Japan to make it difficult for citizens to know what they are up to, even while spying on them more than ever. And, in fact, not only government secrets and the privacy of the people became issues after 9/11. Japan’s whole Peace Constitution became an issue. To be sure, Japanese conservatives insisted on constitutional revision due to the “rise of China as a great economic and military power” and “uncertain political conditions on the Korean Peninsula.” But “wide-spread fear of terrorism in the United States and Europe” was also a factor.

Post-3/11 Violations

Besides the immediate damage caused by the earthquake and tsunami of 2011, especially the three nuclear “melt-throughs,” the Fukushima Daiichi plant has leaked radiation into the surrounding natural environment ever since that fateful day. Yet the Government is planning to dump one million tons of water that is contaminated with tritium and other poisons, ignoring the opposition from scientists, environmentalists, and fishing groups. It is unknown how many deaths in Japan or in other countries will result from this assault on nature. The dominant message of the mass media seems to be that this assault is unavoidable because proper cleanup would be inconvenient and expensive for Tokyo Electric Power Company (TEPCO), who receive abundant Government support. Anyone can see that such assaults on the Earth must be stopped.

In the immediate aftermath of 3/11, the government of Japan was faced with a major problem. There did exist a kind of legal restriction on how much poisoning of the environment would be tolerated. This was the law that set a “legal allowable annual radiation exposure.” The maximum had been one millisievert per year for people who did not work in the industry, but since that would have been inconvenient for TEPCO and the Government, since adhering to that law would require evacuating an unacceptably large number of people from areas that had been contaminated by the nuclear radiation, the Government simply changed that number to 20. Voila! Problem solved.

But this expedient measure that allows TEPCO to pollute the waters beyond Japan’s shores (after the Olympics of course) will undermine the spirit of the Preamble to the Constitution, especially the words “We recognize that all peoples of the world have the right to live in peace, free from fear and want.” According to Gavan McCormack, “In September 2017, TEPCO admitted that around 80 per cent of the water stored at the Fukushima site still contains radioactive substances above legal levels, strontium, for example, at more than 100-times the legally permitted level.”

Then there are the workers, the ones who are “paid to be exposed” to radiation at Fukushima Daiichi and other plants. “Paid to be exposed” are the words of Kenji HIGUCHI, the famous photojournalist who has exposed the human rights violations of the nuclear power industry for decades. In order to live free from fear and want, people require a healthy natural environment, safe workplaces, and a basic or minimum income, but Japan’s “nuclear gypsies” enjoy none of those. Article 14 stipulates that “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.” Abuse of Fukushima Daiichi workers has been fairly well documented even in the mass media, but it continues. (Reuters, for example, has produced a number of exposés, such as this one).

Discrimination enables the abuse. There is evidence that the “hired hands in nuclear power plants are no longer farmers,” that they are Burakumin (i.e., the descendants of Japan’s stigmatized caste, like the Dalits of India), Koreans, Brazilian immigrants of Japanese ancestry, and others precariously “living on the economic margins”. The “system of subcontracting for manual labor in nuclear power facilities” is “discriminatory and dangerous.” Higuchi says that the “whole system is based on discrimination.”

In line with Article 14, a Hate Speech Act was passed in 2016, but it is toothless. Hate crimes against minorities such as Koreans and Okinawans are supposed to be illegal now, but with such a weak law, the Government can allow it to continue. As the Korean human rights activist SHIN Sugok has said, “The expansion of hate toward Zainichi Koreans [i.e., migrants and descendants of people who originated in colonial Korea] is becoming more serious. The Internet has become a hotbed of hate speech”.

The Pandemic’s State of Exception

Both 9/11 of 2001 and the 3/11 natural disaster of 2011, resulted severe constitutional violations. Now, roughly a decade after 3/11, we are seeing severe violations again. This time they are caused by a pandemic, and one could argue that they fit the definition of a “state of exception.” (For a brief history of the “state of exception,” including how the twelve-year long Third Reich came about, see this). As Professor of Human Rights and Peace Studies Saul Takahashi argued in June 2020, “COVID-19 may prove to be just the game changer that Japan’s prime minister needs to push through his agenda for revising the Constitution”. Elite ultranationalists in government have been busy at work exploiting the crisis for their own political gain.

New, radical and draconian laws were suddenly put in place last month. There should have been thorough and patient review by experts as well as debate among citizens, scholars, jurists, and Diet members. Without such participation and debate involving civil society, some Japanese are frustrated. For instance, video of a street protest can be viewed here. Some Japanese are now making their views public, that they do not necessarily approve of the Government’s approach to preventing sickness and protecting the vulnerable, or to healing for that matter.

With the help of the pandemic crisis, Japan is slipping and sliding toward policies that could violate Article 21 of the Constitution. Now in 2021, that article almost sounds like some obscure rule from a bygone age: “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.”

The new exception to Article 21 and the (mis)recognition of its legitimacy began last year on the 14th of March, when the Diet gave former Prime Minister Abe the “legal authority to declare a ‘state of emergency’ over the Covid-19 epidemic”. A month later he took advantage of that new authority. Next, Prime Minister SUGA Yoshihide (Abe’s protégé) declared a second state of emergency that went into effect on the 8th of January this year. He is only constrained to the extent that he must “report” his declaration to the Diet. He has the authority, based on his own personal judgment, to declare a state of emergency. This is like a decree and has the effect of a law.

Constitutional law scholar, TAJIMA Yasuhiko, discussed the unconstitutionality of that first state of emergency declaration in an article published on the 10th of April last year (in the progressive magazine Shūkan Kin’yōbi, pages 12-13). He and other legal experts have opposed the law that handed this power to the prime minister. (This law has been referred to as the Special Measures Law in English; in Japanese Shingata infuruenza tō taisaku tokubetsu sochi hō:).

Then on the 3rd of February of this year some new COVID-19 laws were passed with short notice of them given to the public. Under this legislation, COVID-19 patients refusing hospitalization or people “who do not cooperate with public health officials conducting infection tests or interviews” will face fines amounting to hundreds of thousands of yen. The head of one Tokyo health center said that instead of fining people who refuse hospitalization, the Government should strengthen the “health center and medical facility system”. While the focus before had been on the right of the sick to receive medical care, now the focus will be on the obligation of the sick to accept medical care that the Government encourages or approves of. Similar shifts in health policies and approaches are occurring in a number of countries around the world. In Giorgio Agamben’s words, “the citizen no longer has a ‘right to health’ (health safety), but instead becomes legally obliged to health (biosecurity)” (“Biosecurity and Politics,” Where Are We Now? The Epidemic as Politics, 2021). One government in a liberal democracy, the Government of Japan, is clearly giving priority to biosecurity over civil liberties. Biosecurity has the potential to broaden their reach and increase their power over the people of Japan.

For cases in which rebellious sick persons do not cooperate, there were originally plans for “prison sentences of up to one year or a fine of up to 1 million yen (9,500 U.S. dollars),” but some voices within the ruling party and opposition parties argued that such punishments would be a little “too severe,” so those plans were scrapped. For the hairdressers who did not lose their livelihoods and somehow still manage to earn an income of 120,000 yen per month though, a fine of a few hundred thousand yen is considered appropriate.

In some countries, COVID-19 policy has reached the point where “war” has been declared, an extreme state of exception, and compared to some liberal and democratic governments, Japan’s newly instituted constitutional exceptions may seem mild. In Canada, for example, a military general has been chosen to direct a war on the SARS-CoV-2 virus. “All travelers entering the country” are required to quarantine themselves for 14 days. And those who violate their quarantine can be punished with a fine of up to “$750,000 or a month in jail”. Canadians do have the U.S. on their border, a very long and formerly porous border, and it could be said that the government of Canada is trying to avoid “the United States’ coronavirus fate.” But Japan is a nation of islands where borders are more easily controlled.

Especially under Abe’s rule but all throughout the decade of the twenty teens (2011-2020), the rulers of Japan, mostly the LDP, have hammered at the liberal Peace Constitution, crafted in 1946 when Japanese heard the words, “The Japanese government announces the first and only peace constitution in the world, which will also guarantee the basic human rights of the Japanese people” (One can see documentary footage of the announcement at 7:55 here). During the twenty teens, the list of articles that have been violated during the past decade, beyond the articles discussed above (14 and 28), would include Article 24 (equality in marriage), Article 20 (separation of church and state), and of course, the crown jewel from the perspective of the world’s peace movement, Article 9:  “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.”

Japan? Democratic and peaceful?

So far, the Constitution itself may have checked the slide toward authoritarian rule by the ultranationalist prime ministers Abe and Suga. But when one considers this past decade of constitutional violations, after the last great crisis of 3/11 and Fukushima Daiichi, one sees clearly that the authority of “the first and only peace constitution in the world” been under attack for many years. Most prominent among the attackers have been the ultranationalists in the Liberal Democratic Party (the LDP). In the new constitution that they drafted in April 2012, they seemed to envision the end of “Japan’s postwar experiment in liberal democracy,” according to law professor Lawrence Repeta.

The LDP have a grand vision and they make no secret of it. With much foresight in 2013 Repeta made a list of the “LDP’s ten most dangerous proposals for constitutional change”:  rejecting the universality of human rights; elevating maintenance of “public order” over all individual rights; eliminating free speech protection for activities “with the purpose of damaging the public interest or public order, or associating with others for such purposes”; deleting the comprehensive guarantee of all constitutional rights; attack on the “individual” as the focus of human rights; new duties for the people; hindering freedom of the press and critics of government by prohibiting the “wrongful acquisition, possession and use of information relating to a person”; granting the prime minister new power to declare “states of emergency” when the government can suspend ordinary constitutional processes; changes to article nine; and lowering the bar for constitutional amendments. (Repeta’s wording; my italics).

Repeta wrote in 2013 that that year was a “critical moment in Japan’s history.” 2020 may have been another critical moment, as powerful state-centered ideologies of biosecurity and oligarchy-empowering “states of exception” took root. We should ponder the case of Japan in 2021, too, as a case in point, and compare its epoch-making legal changes to those of other countries. The philosopher Giorgio Agamben warned us about the state of exception in 2005, writing that “modern totalitarianism can be defined as the establishment, by means of the state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system… The voluntary creation of a permanent state of emergency… has become one of the essential practices of contemporary states, including so-called democratic ones.” (In Chapter 1 “The State of Exception as a Paradigm of Government” of his State of Exception, 2005, page 2).

The following are some sample descriptions of Japan today by prominent public intellectuals and activists:  “an ‘extreme rightist’ country, subject to a ‘fascism of indifference’ in which the Japanese voters are like frogs in slowly heating fascist water, no longer law-governed or democratic but moving towards becoming ‘a dark society and a fascist state,’ where a ‘fundamental corruption of politics’ spreads through every nook and cranny of Japanese society, as it begins the ‘steep decline towards civilizational collapse’”. Not a happy portrait.

Speaking of global trends, Chris Gilbert has written that “our societies’ waning interest in democracy may be especially obvious during the ongoing Covid crisis, but there is much evidence that the whole past decade has involved the eclipse of democratic attitudes”. Yes, the same is true of Japan. States of exception, draconian laws, suspensions of the rule of law, etc. have been declared in a number of liberal democracies. In Germany last spring, e.g., one could be fined for buying a book in a bookstore, going to a playground, having contact with someone in public who is not a member of one’s family, getting closer than 1.5 meters to someone while standing in line, or cutting a friend’s hair in one’s yard.

Militaristic, fascistic, patriarchal, femicidal, ecocidal, monarchical, and ultranationalist tendencies could possibly be strengthened by draconian COVID-19 policies, and those will only speed up civilizational collapse at this moment in history, when we must always be aware that we face, above all, two existential threats:  nuclear war and global warming. In order to eliminate these threats, we need sanity, solidarity, security, civil liberties, democracy, and of course, health and strong immunity. We must not set aside our core progressive beliefs and allow governments to dismantle inconvenient peace-and-human-rights-protecting constitutions. Japanese and other people around the world need the unique Peace Constitution of Japan now more than ever, and it is something that should be emulated and elaborated around the world.

All this is to say, following Tomoyuki Sasaki, the “Constitution must be defended”. Fortunately, a slim majority but a majority all the same, of Japanese still value their constitution and oppose the LDP’s proposed revisions.

Many thanks to Olivier Clarinval for answering several questions about how current government health policies in the Global North are threatening democracy.

Joseph Essertier is an associate professor at the Nagoya Institute of Technology in Japan.

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