PANEL SESSIONS III TUESDAY JUNE 26 2018 11.00 AM – 12.30 PM

Room: CYTT 3.21

  • THE TWILIGHT OF JAPAN’S POSTWAR CONSTITUTION
    Japan is now in a state of what Bruce Ackerman called “constitutional politics“. In past five years, the ruling coalition of PM Shinzo Abe’s LDP and Komeito has won all national elections and secured supermajority in both houses of the Diet, thus meeting the requirement of proposing amendment to the Constitution. The Prime Minister has said he is expecting to see a referendum for constitutional amendment in 2019. This panel will not follow the routine that keeps focusing on Art 9 issue. Instead, its aim is to give non-Japanese colleagues a bigger picture of not only disfunction of the Japanese constitution, but also radical departure from rule of law in the Abe years (Dec 2012–present). Presenters will discuss the twilight of the postwar constitution from different aspects.
  • The Academic Response to the Constitutional Zone of Twilight
    Japan’s postwar constitution is reaching in the zone of twilight–Tasogaredoki or Ōmagatoki in Japanese. As “Your Name “(Kimi no na wa)–the animated film that became a megahit worldwide in 2016-17–shows to us, things contradictory coexist in such moment. Constitutional order and violation. Liberal-democratic and authoritarian regime. Social equality and neo-liberal market state. Judicial activism and negativism. In this paper, the author will argue that the leading school of Japanese constitutional jurisprudence bears, by constructing an eithor-or rivalry between Democracy and Constitutionalism, partly the responsiblity for the current situation. The author will examine 1) the deep-seated tradition of the leading school preferring a singular Constitutionalism friendly to apolitical liberalism and rule of elite lawyers; 2) how the Platonic, anti-democratic argument prevailed in the 1990s; 3) the leading school’s reluctant alliance with social democrats in Abe years.
  • Concentration of Wealth and Democracy under the Japanese Constitution
    In the 70 years since the war, Japan has been a stable democratic country. It can be said that its success has been based on postwar economic reform. The problem is the relationship between such economic reform and guarantee of property rights. The Supreme Court of Japan has held that such economic reforms are constitutional even under the new Constitution. There are criticisms that such judgments of the Supreme Court disdain the guarantee of property rights under Japanese Constitution. However, from the idea that the guarantee of the Constitution will not expand beyond assets that conflict with realization of democracy and accumulation of excessive wealth was not necessarily all the consequences of individual ability, it should be considered that such a Supreme Court decision was valid. Therefore, under the Constitution, if the concentration of wealth becomes excessive again, according to democratic decisions, the government can adopt measures to resolve the concentration of wealth.
  • The Trojan Horse of Abe’s Constitutional Amendment Proposal
    This paper argues that the new and very modest formal amendment to Article 9 pushed by PM Abe, designed to avoid controversy and debate, could serve to effectively lock in the “reinterpretation“ as a de facto informal amendment to the constitution. From this perspective, the apparent reversal in the scope of Abe‘s amendment ambitions, and surprising modesty of the current proposal, may be seen as a disingenuous effort to disguise the extent of constitutional change that is at stake. It may be, in essence, a Trojan Horse through which to solidify the position of the “reinterpretation.“ The paper seeks to explore the legitimacy of such a move, and its broader implications, from a comparative and theoretical perspective, drawing upon recent work on both informal amendment and unconstitutional constitutional amendments.