Subcommittee on Security and International Cooperation (Third Meeting)

Thursday, March 25, 2004

Meeting Agenda

Matters concerning security and international cooperation (states of emergency and the Constitution, including legislation to protect human rights)

After statements were heard from Prof. KOBARI Tsukasa and Associate Prof. MATSUURA Kazuo concerning the above matters, questions were put to them. This was followed by free discussion among the members.

Informants

  • KOBARI Tsukasa, Professor, Faculty of Policy Studies, Iwate Prefectural University
  • MATSUURA Kazuo, Associate Professor, National Defense Academy

Members who put questions to Profs. KOBARI and MATSUURA

Main points of Prof. KOBARI's statement

1. Comparison of the Meiji Constitution and the present Constitution

>> The Meiji Constitution was strongly inclined toward emergency measures, having four comprehensive articles relating to national emergencies.

>> The present Constitution is very restrained; at least, it has no provisions like the Meiji Constitution's on national emergencies.

>> The emergency-response laws enacted last year do not rest on the authority of any express provision in the Constitution; they resulted solely from the exercise of legislative power. Thus, the perennial question remains why, in a military emergency, the people should have to obey a different set of laws from those that apply in peacetime.

2. Emergency powers and their classification: The relative nature of the division into national emergency powers and the power to take extraordinary measures

>> Powers to deal with a state of emergency (emergency powers) can be divided into two types: (a) national emergency powers, which are a form of supra-positive law; (b) the power to take extraordinary measures, which is closer in nature to positive law. However, this distinction is only a matter of degree.

>> Emergency powers may have any of the following relationships to a nation's constitution: (a) they may suspend its legal force entirely; (b) they may suspend the legal force of certain articles; (c) the legal force of certain articles may be modified, without being suspended, under a power to take extraordinary measures for which the constitution provides; (d) states of emergency may have to be addressed without any relevant constitutional provisions. In the case of (c), it is a question of striking a balance of interests between the human rights that may have to be restricted and the power to take extraordinary measures.

>> Japan's existing Constitution comes under the heading of (d). The only legal principle embodied therein that can be seen as a basis for restricting human rights is "the public welfare," and this will take on different contents in peacetime and in a military emergency.

3. States of emergency and the guarantee of human rights

>> When a compulsory evacuation is ordered in a state of emergency, violation of the personal rights of those who refuse to evacuate can become an issue. This is just one example of the increasingly manifold and complex nature of the guarantee of human rights, and this point must be taken into account in designing legislation to govern states of emergency.

>> States of emergency may be brought on by guerrillas and commandos, or by terrorists. The former qualify for recognition as combatants under the Geneva conventions, and the rules of war apply to them under international law. The latter do not qualify for such recognition; they are dealt with as common criminals under domestic criminal law.

>> It will be necessary to examine closely whether large-scale or international terrorism corresponds to "armed attack" under Article 51 of the UN Charter and thereby meets one of the conditions for the exercise of the right of self-defense. Recognizing terrorism as "armed attack" could lead to too readily breaking the principle of refraining from the use of force set forth in Article 2, Paragraph 4 of the UN Charter, by arguing that serious harm is done by terrorism.

4. The basis of the legislation for states of emergency

>> The worldview expressed by the first sentence of Article 13 of the existing Constitution is individualistic; it can be construed as an ideological belief that the individual should inherently be respected above all else. When individualism is understood in this way, the state can only justify the control it exercises over individuals if it first protects their lives, limbs, and property.

5. Conclusion

>> The passage of emergency-response legislation has caused some changes in the system of government, e.g., some of the provisions represent a return to "agency-delegated tasks," i.e. duties assigned by the national government to local governments. However, I think that instead of placing the national government at the top of a defense hierarchy, followed by local public bodies and then the people, we need to reverse our priorities and place the people first, followed by local public bodies and then the national government. Taking the individualistic worldview of the existing Constitution as a basis, I believe that in our defense view we should ask how we can jointly defend ourselves, our families, our hometowns, and our homeland.

>> There is a legal maxim, "The law is silent at gunpoint." But only in a military emergency can the new legislation prove its worth in protecting the people's lives, limbs, and property and ensuring the security of the people as a political unity, i.e., the nation. Explicit provisions on responding to states of emergency should be set forth in the Constitution.


Main points of Associate Prof. MATSUURA's statement

1. Outline of legislation to protect the people in other countries

>> In many countries, "civil defense" combines military defense and peacetime disaster relief.

>> In the U.S.A., the Federal Civil Defense Act, which anticipated nuclear attack, was enacted in 1950, and the crisis management system for responding to natural disasters and other contingencies was unified in 1979 with the creation of the Federal Emergency Management Agency (FEMA). After the terrorist attacks of September 11, 2001, the Department of Homeland Security was established to respond to terrorism and other events, and FEMA was integrated into this new department.

>> In Britain, the monarch may assume broad powers in a state of emergency according to the "principle of necessity." There have been cases where actions taken during an emergency, although illegal at the time, were later legalized by an immunity law. Between the World Wars, Britain enacted a Defence of the Realm Act and other laws listing the sectors in which authority could be generally delegated to executive legislation. Britain has developed a system of civil protection laws dating back to World War I. It currently carries out civil defense and protects the public from natural disasters and other contingencies based on the Emergency Powers Act.

>> In France, a civil protection system has been in place since World War I, based on the idea of "passive defense," which aims to preserve infrastructure and protect civilians from poison gas attacks, among other risks. Today, the Civil Safety and Defense Department of the Ministry of Internal Affairs is in charge of civil defense.

>> Switzerland, as a permanently neutral country, places high importance on civil protection and has a well-developed civil defense system. Its system of "comprehensive defense" has three main elements: military, psychological, and civil defense. The Swiss Constitution contains provisions for protection of the people, including civil defense.

>> South Korea's Constitution contains emergency provisions due to the need for readiness to meet the threat from North Korea. The civil defense force has 4 million members, consisting of males between the ages of 20 and 45 and female volunteers.

2. The status of civil protection in Germany's emergency laws

>> The Basic Law (the German constitution) refers to "defense, including protection of the civilian population." Thus, it treats military defense and civil protection (a sector of nonmilitary defense) as a single unit.

>> Germany has drawn up "general defense guidelines" which make it possible to apply its emergency response statutes systematically amid the web of relationships that exist among NATO, domestic entities (the Federal State, Länder, and municipalities), and private organizations.

3. The Civil Protection Law

>> Germany's Law for the Reorganization of Civil Protection, enacted in 1997, streamlined the existing laws on civil protection. It places emphasis on the protection of residents in the early stages of a disaster and on self-protection. It also provides, for the first time, for the integration of organizations for peacetime disaster relief with those for civil protection in military emergencies.

>> The German law regards "self-protection" as the basis of civil protection, with public agencies playing a complementary role.

>> The law assigns an important status to volunteer organizations. It not only provides for them to play a role in peacetime, but also contains provisions for a similar response in a military emergency. It also puts in place a structure to support disaster relief at the national level through liaison between the federal and state governments. I think that the German legislation offers a useful model for Japan's proposed Law for the Protection of the People, in which the relationships among the national and local governments, private organizations, and volunteers have not been made clear.

4. Recent moves in Germany

>> Germany has developed a "New Strategy for Protecting the Population of Germany" which sets out anti-terrorist measures together with preparations for responding to armed attack. Based on this strategy, it has established a Federal Office for Civil Protection and Emergency Response, linked existing information networks in a joint German emergency preparedness information system, and is working to improve communications among the Federal and state governments to enable them to maintain close contact in emergencies.

>> An aviation security bill designed to prevent suicide attacks by terrorists using commercial aircraft is under debate in the Bundestag. The bill includes a provision allowing hijacked aircraft to be shot down. I see this as an expression of the government's resolve not to allow terrorist attacks to succeed.

Main points of questions and comments to Profs. KOBARI and MATSUURA

ITO Kosuke (Liberal Democratic Party)

(To both informants)

>> In your view, should the Constitution explicitly set out the State's response to a state of emergency? Further, if this is a matter that can be handled within the framework of the existing Constitution, would it be sufficient to set forth the response to states of emergency in general in a "Fundamental Law on National Security," without requiring a constitutional amendment?

>> The German approach of enacting detailed provisions for states of emergency has the drawback that it is then difficult to deal with situations that were not foreseen. Some countries, such as France, grant the president broad powers to take emergency measures. If we were to establish emergency powers in the Constitution, what sort of provisions do you think would be suitable in light of Japan's political system and other conditions?

>> In combating terrorism, there is a need for coordination among many different agencies, including defense personnel and the police. There is also a need to coordinate the related administrative agencies in an integrated way. Thus, I think it is worth considering the creation of a unified organization like the U.S. Department of Homeland Security in Japan. I would like to hear your assessment of Japan's existing system to deal with emergencies, including terrorism and natural disasters, and your views on the need for a unified organization.


MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

(To both informants)

>> The Democratic Party of Japan has been calling since last year for the enactment of a Fundamental Law on National Security and the establishment of a Crisis Management Agency. The proposed legislation to protect the people restricts the people's rights to a certain extent; where in the Constitution should we seek the authority for this?

>> If we make provision for emergency powers, we will need to discuss their relationship with the "public welfare." Given that the existing Constitution contains no provisions for emergency powers, do you think that the degree to which the proposed Law for the Protection of the People restricts the people's rights is appropriate?


FUKUSHIMA Yutaka (New Komeito)

(To both informants)

>> Personally, I think it would be better to make explicit provision for national emergency powers in the Constitution. However, Britain and the United States have no written provisions, and yet they can still respond to emergencies. What is the essential difference between the view that unwritten norms exist and the view that the Constitution is incomplete?

(To Prof. KOBARI)

>> How detailed do you think the provisions on national emergency powers should be?

>> Isn't it true that the provisions for convoking the House of Councillors in emergency session would not work if the opposition parties held a majority of seats in the House of Councillors?

(To Prof. MATSUURA)

>> In the event of a situation not foreseen by the Constitution, is it possible for the state to invoke emergency powers, irrespective of the Constitution and the emergency-response legislation for military emergencies?


YAMAGUCHI Tomio (Japanese Communist Party)

(To Prof. KOBARI)

>> Why do you think the Constitution of Japan, unlike the Meiji Constitution, contains no explicit provisions dealing with states of emergency?

>> Do you think there is any danger of a large-scale invasion of Japan by a foreign army?

>> I think you made an important point when you said that terrorists should be dealt with as common criminals under domestic criminal law. I would like to hear more about the analysis that led to your comment that we should study carefully whether large-scale terrorism should be viewed as an extension of "armed attack" lest the principle of refraining from the use of force set forth in Article 2, Paragraph 4 of the UN Charter be broken too readily by arguing that serious harm is done by terrorism.

(To Prof. MATSUURA)

>> Two-thirds of UN member nations are nonaligned, and some have no armed forces. I believe that in studying legislation for states of emergency, we should bear in mind the constitutional and geopolitical conditions of a wide variety of nations. Do you agree?


TOMON Mitsuko (Social Democratic Party)

(To both informants)

>> In my view, the proposed legislation to protect the people unilaterally forces the people to cooperate in a war. In comparison with legislation in other countries, how do you evaluate the contents of the draft Law for the Protection of the People now before the Diet?

>> Because of the risk that the proposed Law for the Protection of the People will unduly restrict the rights of the people while putting military interests first, as happened before World War II, it will be important to ensure that the legislature and the judiciary have oversight. Do they have sufficient powers and functions to provide this?

>> I think that there is a problem in enacting legislation to protect the people at the statutory level, which is subordinate to the Constitution, despite the fact that the Constitution itself has no provisions for a state of emergency, plus the fact that Article 9 renounces war. What are your views in this regard?


KONO Taro (Liberal Democratic Party)

(To Prof. KOBARI)

>> You spoke of striking a balance between two legal interests during a state of emergency without suspending the Constitution, but is it actually possible to strike such a balance when the nation is at war? Also, do you think it is possible for the courts to decide whether a violation of rights has occurred in order to determine whether compensation should be paid after the fact?

>> Among the different types of powers to take extraordinary measures that you cited, you explained that in the type that involves suspending the legal force of the nation's constitution, limits must be set both in time and in space. But is it possible to set a time limit in advance? Also, is it possible for a constitution to be reinstated after a fixed period of time?

(To both informants)

>> One can anticipate states of emergency that are caused by a foreign nation, and also states of emergency on a purely domestic scale, such as hijackings. Is there any difference in the powers to take extraordinary measures that are involved in these two cases?


OIDE Akira (Democratic Party of Japan and Club of Independents)

(To both informants)

>> The draft of the Law for the Protection of the People that is currently before the Diet still contains problems left unsolved in the deliberations on the Law Concerning Measures to Ensure National Independence and Security in a Situation of Armed Attack. These problems involve, among other things, determining what constitutes an armed attack in order to clarify at what point protection of the people commences. Moreover, I find the proposed law very difficult to understand; for example, it defines a "situation requiring an emergency response" and permits response measures to protect the people before an actual armed attack has occurred. What are your impressions of the proposed Law for the Protection of the People?

>> It is not clear to me how the proposed law will actually protect the people. In fact, some of its provisions seem more likely to pose a danger in time of war. It seems to me an extremely simplistic bill. I would like to hear your views on the basic principles of civil protection.

>> Do other countries have measures to regulate the operation of their state of emergency laws, such as prior checks on excessive orders?


HIRAI Takuya (Liberal Democratic Party)

(To both informants)

>> While it is necessary to centralize authority in an emergency, I believe that it is also necessary to consider after-the-fact checks and procedures to restore the status quo and provide compensation for losses where human rights have been violated without good cause. How do you evaluate the provisions for these purposes in the proposed Law for the Protection of the People?

>> To respond to emergencies, the United States has established the Department of Homeland Security at the federal level, and there are also experts in crisis management at the level of state and other local governments. What are your views on the need to train expert personnel in this country? Also, what roles do you think Japan's police, fire departments, and Self-Defense Forces should play in disaster response?

>> Critics have cited a number of problems with Japan's emergency preparedness, such as its centralized nature and the lack of scope for involvement by local governments and citizens. Viewed from the perspective of local governments, what sort of response to emergencies do you think is desirable in terms of the Constitution?

Main points of comments by members in the free discussion (in order of presentation)

HIRAI Takuya (Liberal Democratic Party)

>> The existing Constitution was enacted shortly after World War II, at a time when the United States and the Soviet Union were not yet in open confrontation and idealistic hopes were vested in the United Nations. The Constitution was enacted with these special conditions as givens, and this is one reason why I believe that it should be revised.

>> The Preamble, in stating that "we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world," assumes that the world will be at peace as long as Japan itself does not commit any wrong. This can be seen as a reflection of the UN-centered thinking of those times, but, in light of the international situation today, it is questionable whether we should base our security arrangements on this kind of outlook.

>> One could say that the Constitution makes no provision for national emergency powers because it did not foresee the occurrence of a "state of emergency." Today, however, with Japan facing overt threats to its security, including the proliferation of weapons of mass destruction and the danger of terrorism, I think that we should make explicit provision for states of emergency in the Constitution in order to fulfill the greatest duty of the state, which is to protect the lives and property of the people.

TOKAI Kisaburo (Liberal Democratic Party)

>> The lack of constitutional provisions for a state of emergency is inappropriate. We should put in place a system that will enable us to deal with any situation. We should protect the lives and safety of the people by making provision for a state of emergency in the Constitution and consolidating the necessary legislation on that basis.

OIDE Akira (Democratic Party of Japan and Club of Independents)

>> We should not take the approach of temporarily suspending the legal force of the Constitution or its human rights provisions in a state of emergency. In my view, as Prof. KOBARI advocated, we should first make constitutional provision for emergency response measures, and then, on that basis, we should try to strike a balance of legal interests between the human rights provisions and the provisions for extraordinary measures.

>> The Constitution acts as a brake on the measures set forth in the proposed Law for the Protection of the People, and the significance of the Constitution can be seen therein. Further, we should firmly maintain not only Paragraph 1 but also Paragraph 2 of Article 9 in order to outlaw all wars, not only wars of aggression.

TOMON Mitsuko (Social Democratic Party)

>> The people of Okinawa suffered tragically because of the lack of a Peace Constitution. We must not change the existing Constitution.

>> Under the old Constitution, the Imperial Diet was a mere rubber-stamp body which was unable to exert influence on the military and which allowed it to act without restraint. Under the present Constitution, however, the National Diet is the highest organ of state power. It is the institution closest to the people, and it has the right to investigate state affairs. I see no need to consolidate Japan's legislation for military readiness, but on comparing the mechanism for civilian control with that exercised by the Bundestag under the German legislation for states of emergency, I think that we need to ensure adequate oversight and regulation of the Self-Defense Forces and to strengthen the rights of minorities in the Diet to conduct investigations, thereby making civilian control effective in practice.

TOKAI Kisaburo (Liberal Democratic Party)

(In connection with the comment by Mr. OIDE)

>> The intent of my earlier comment was that making explicit constitutional provision for states of emergency would protect the Constitution, and that by consolidating legislation for states of emergency on the basis of such provisions, we will be able to maintain a solid framework as a nation under the rule of law.

>> We should establish provisions for a state of emergency in order to protect human rights, as Prof. KOBARI advocated in calling for a balance of legal interests between human rights provisions and the power to take extraordinary measures.

MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> Both informants stated that the proposed Law for the Protection of the People is repressive compared with those of other countries, but there is also a need to look closely at how effective it will be. We should make explicit provision in the Constitution for dealing with states of emergency, having first clearly established the principles involved, that is, the duties of the state and protection of the rights of the people.

>> Some people cite the process by which the existing Constitution was enacted as an argument for its revision, but we should consider this question in terms of whether revision is necessary under present circumstances, in light of the fact that, over the more than fifty years since it was enacted, the Constitution has been accepted by the people and has become firmly established.

>> Although the present state of the United Nations does not allow optimism, we should recognize that the Constitution aims for the ideal. The pillars of Japan's foreign policy are the United Nations, the Japan-U.S. Security Treaty, and diplomacy in Asia, and we should consider that the importance of the United Nations will remain unchanged.

NAKAYAMA Taro, Chairman

>> Today, we have conducted a wide-ranging debate on Japan's security, including the proposed Law for the Protection of the People and related bills which are currently before the Diet, and I think that we have achieved a very meaningful investigation.

>> As one who has personally experienced war, I believe that we should never go to war again. However, we must also take into account the fact that Japan was defined as an "enemy state" in the United Nations Charter and the reality that Japan has come to rely on the defense capabilities of U.S. forces to maintain its security in a changing world over the years since the Constitution was enacted.

>> It is doubtful whether we can rely on the United Nations in the event of a threat to Japan's security, given the problems with the way that the Security Council operates. We have also recognized, in addressing the North Korean abduction issue, that there are problems that cannot be resolved by diplomatic efforts alone.

>> Taking these points into account, I think that we should continue to discuss how to ensure the security of the Japanese people, while reexamining the problems involved, including those that date back to before World War II.