Contingency Bills and Human Rights

John de Boer (Research Associate, GLOCOM)

Newspapers around the globe headlined this past weekend with titles such as, "Japan smoothes way for military defense" (Singapore Straits Times), "Japan adopts laws strengthening military powers" (NY Times), "Laws enacted to respond to attack" (Asahi), and "Diet lays groundwork for new defense policy" (Yomiuri). The passage of what has been collectively referred to as the Contingency Law by both houses in the Japanese Diet this past week is considered by most as a historical decision. For the first time since the adoption of Japan's pacific constitution (3 November 1946), Japan has a legal framework to respond to a military attack.

According to Prime Minister Junichiro Koizumi these laws will "safeguard the state and the public" (NYT) and ultimately work to ensure "the world's peace and stability" (AFP). With 90 percent of all Japanese lawmakers supporting the bills, most Diet members seem to agree.

However, when the human rights consequence of these laws are considered, disagreement must be voiced. By curtailing civil liberties these laws allow the Japanese security and intelligence apparatus to move in the direction taken by the US after 11 September 2001. A close examination of the set of bills, in particular the Revised Self Defense Forces (SDF) Law and the Foreign Armed Attack Contingency Law, support this claim.

The SDF law establishes exceptions for the SDF under twenty existing laws when a "national emergency" has been declared. These include the seizure of property and potentially persons without warrant by the SDF or the State. The Foreign Armed Attack Contingency Law allows the Prime Minister to override the authority of all ministries and local governments. These laws pose a threat to individual freedoms by confusing the supremacy of fundamental human rights, as guaranteed in Article 11 of the Japanese Constitution*, and the rights of the State in a situation of armed attack that does not necessarily have to be real but merely "predicted" (the Japanese term as stated in the preamble of the Foreign Armed Attack Contingency Law is yosoku).

Article 3, Section 4 of the Foreign Armed Attack Contingency Law does stipulate that any response to an emergency military situation has to "respect" the freedoms and the rights of the people as guaranteed in Articles 14, 19 and 21 of the Constitution (it fails to mention # 35). However, the bill goes on to imply that these guarantees can be overlooked by the State so long as the limitations enacted are kept to a "minimum". This minimum remains undefined. Article 8 further dilutes human rights guarantees by requiring the people to "necessarily cooperate" (hitsuyo na kyoryoku) with the response mechanisms put forward by national and local authorities.

In an age where governments around the world speak of "invisible threats" posed by "sleeping terrorist cells", in a political climate where preventive attacks are legitimized (Shigeru Ishiba, Director General of the Defense Agency), the notion that a government can violate a person's right to equality (Article 14), his/her freedom of thought and conscience (Article 19), his/her freedom of speech and assembly (Article 21), and the right of "all persons to be secure in their homes, papers and effects against entries, searches and seizures" (Article 35), in the name of a perceived or "predicted" security threat is a serious problem. Under such a framework, there is simply no objective way to determine what or who presents this threat, rendering individual freedoms vulnerable to manipulation and subordination.

Most worrying for foreign residents of Japan (in particular the Korean community) is that their rights may not be guaranteed at all. The contingency bill refers to the rights and freedoms of "the people/the nation" (kokumin). The preamble of the Foreign Armed Attack Contingency Law states that the objective of the bill is to, "contribute to guaranteeing the safety of the nation and the people". This is later defined as "protecting the life, person and property of the people/the nation". No mention is made of guarantees afforded to foreigners.**

Recognizing that the most immediate threat posed to Japan stems from North Korea, the Korean community in Japan remains extremely vulnerable to potential human rights violations. This leaves open the possibility that Koreans in Japan could face a situation similar to that faced by Arabs in the US. Unless specific guarantees are extended to foreign communities and groups in Japan, they could become victims of arbitrary detention and other violations in the event of a real or perceived armed attack.

Japanese lawmakers voted in favor of the contingency laws last week citing practicalities when mobilizing the SDF in the event of an armed attack. As the Asahi newspaper put it, Diet members wanted troops to be able to operate without being "boggled down by legalities" (8 June). The Yomiuri newspaper believes that this set of laws has made possible an "effective national security system" (June 8). Closer to the truth, however, is that the security guarantees of all persons living in Japan has been watered down as a consequence of these laws. No longer are fundamental human rights fundamental. They have now been subordinated to a vague and easily manipulated definition of national security when facing the threat of armed attack.

How can laws that erode individual freedoms, liberties and rights claim to be an effective national security system? When politicians group fundamental rights and freedoms into a set of "legalities" (such as obeying traffic lights) that could potentially bog down the SDF in case of an attack or the threat thereof, people need to be suspect and alert. The erosion of guarantees established to safeguard all Japanese and residents in Japan can only lead to further national/international insecurity.

* Article 11 of the Constitution states that, "The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights".

** While this may be alarming to some, the vulnerability of foreigners in Japan is nothing new. As has been pointed out by both Japanese and Western researchers, specific rights protecting foreigners in the original GHQ draft of the post-war constitution were eliminated by the Japanese government (more specifically by Tatsuo Sato, assistant to Joji Matsumoto who was head of the Constitutional Problems Investigation Committee) in the process of translation (see John Dower, Embracing Defeat, W.W. Norton & Company / The New Press,1999, p. 379).