Japan's Constitution is still one of the world's most advanced

May 03, 2012

By JUNJI TACHINO/ Correspondent

WASHINGTON--Constitution Day is not the most charismatic of Japan’s public holidays. There are none of the local festivities that enliven some other days off. There is no flag-waving or drum-beating.

A foreigner not familiar with the Japanese language could probably get through May 3 each year without having any idea what the point of the day was.

But a glance at The Asahi Shimbun this May 3, the 65th anniversary of the enforcement of Japan’s Constitution, showed the quiet seriousness with which the day is regarded in Japan. The newspaper’s front page featured two lead articles related to the Constitution and the inside pages carried several more.

During the postwar period, Japan has been extraordinarily protective of a document that some in the country describe as a foreign intrusion forced on Japan by the United States following its defeat in World War II.

Calls for it to be scrapped and replaced by a Constitution written by the Japanese themselves persist, but Japan’s fundamental law is in fact one of the least tampered with in the world.

The Constitution has never been amended since its promulgation, with only Italy and Uruguay boasting unaltered documents for longer periods in the past, according to Tom Ginsburg, a professor of international law and political science at the University of Chicago Law School.

As it hits the retirement age for most Japanese workers, the Constitution is nevertheless still in the mainstream of constitutional thinking around the world.

David Law, a professor of law and political science at Washington University in St. Louis, and Mila Versteeg, an associate professor at the University of Virginia Law School, analyzed all of the world’s 188 written Constitutions between 1946 and 2006 and found that Japan’s was still among one of the world’s most advanced.

While Law and Versteeg found that only 35 percent of the Constitutions covered women's rights in 1946, that proportion had risen to 91 percent by 2006. Protections of freedom of movement were also increasingly adopted over the same period, from 50 percent of Constitutions after World War II to 88 percent in 2006. There was also an increase in protections for the elderly.

And, despite its lack of amendments, the Japanese Constitution still contains all 19 of the provisions most common in basic laws around the world. Versteeg said it had been a cutting-edge law at the time of its promulgation, containing so many basic rights that have now become accepted in other nations, and is still in the mainstream of constitutional thinking.

Even the most unique feature of the Japanese Constitution—Article 9, which renounces war as a sovereign right and abjures the maintenance of the means to make war—has some similarities with provisions in the Constitutions of Germany, Costa Rica, Kuwait, Azerbaijan, Bangladesh and Hungary, according to Ginsburg of the University of Chicago.

Conversely, the Constitution of the United States, the world's oldest written national Constitution and one of the most important documents in modern political history, has become increasingly isolated from global constitutional trends since the 1980s, according to Law and Versteeg.

Although more than 70 percent of the world's basic laws have clear provisions on women's rights, freedom of movement, the right to education and the right to form labor unions, the U.S. Constitution is silent on those rights. On the other hand, it does protect the right to bear arms, a provision now only included in 2 percent of the world’s Constitutions.

The Constitutions of India, South Africa, Germany and Canada’s Charter of Rights and Freedoms in 1982 are now often seen as more relevant role models than the classic U.S. document. The U.S. Supreme Court justice Ruth Bader Ginsburg said flatly in an interview with Egyptian television after its democratic uprising last year: "I would not look to the U.S. Constitution if I were drafting a Constitution in the year 2012."

Law and Versteeg’s study warns that the actual worth of a Constitution is governed by the political and legal environment in which it is embedded. They point out that a number of dictatorships in Africa, for example, have provisions in their Constitutions similar to the International Bill of Human Rights.

The way provisions are interpreted and enforced is still clearly critical to the protections afforded to citizens. In Japan, women's rights were included in the Constitution 65 years ago, but the actual pace at which women have entered the workplace has been slower than in other advanced democracies.

Article 9 has been reinterpreted by government officials to allow for the creation and expansion of the Self-Defense Forces and their dispatch overseas.

But, while Japan has spent 65 years trying to come to terms with the Constitution adopted amid the ruins of postwar Japan, Law said the Japanese people had shown wisdom in not tampering with a document that has provided a foundation for peace and economic development.

Law was skeptical of demands in Japan to replace a Constitution described as an imposition by the United States, saying the main reason the Constitution has remained untouched is that it has strong independent support from the Japanese public.

By JUNJI TACHINO/ Correspondent
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