LDP draft Constitution differentiates between 'big' and 'small' human rights

How puzzling. A question-and-answer booklet that the ruling Liberal Democratic Party (LDP) has created to explain its draft revision of the Constitution claims there are two types of human rights: the big ones and the little ones.

The concept of "big human rights" and "small human rights" appears in the booklet's section on the LDP draft Constitution's controversial "state of emergency" provision, which allows for temporary restrictions on human rights and concentration of authority in the Cabinet in the case of an emergency such as an armed attack from external forces, disturbances in social order due to domestic turmoil, or major disasters. Following the massive earthquakes in Kumamoto and its surrounding areas in mid-April, the government and the LDP have ramped up their argument that such a provision is necessary to carry out rescue and recovery efforts as smoothly as possible.

The Q&A booklet states that protecting the lives, bodies and properties of the people is the state's utmost priority not only in times of peace but also in times of emergency. So far, so good. But it's what follows that throws me for a loop.

"Some are of the opinion that fundamental human rights should not be restricted even in times of emergency," the booklet reads. "But we believe that it is possible that in order to protect big human rights such as people's lives, bodies and properties, we could be forced to place restrictions on smaller human rights."

It's pretty clear what the LDP means by "big human rights." But what are the "smaller human rights" that the party refers to?

I contacted the LDP Headquarters for the Promotion of Revision to the Constitution. The person who responded, however, simply kept repeating that "it would be helpful if you could read it as it is written." That was precisely the problem, though. I couldn't understand what had been written.

Yosuke Isozaki, the deputy chief of the LDP constitutional revision promotion headquarters, who was a central figure in the compilation of the party's draft revision, told the Mainichi Shimbun during an interview carried in its April 29 morning edition, "One of the state's loftiest and most significant roles is to protect the people's lives, bodies and properties. There may be cases in which small human rights are violated, but if we cannot protect the people, there can be no constitutionalism."

Shojiro Sakaguchi, a professor at Hitotsubashi University and an expert on constitutional law, objects head-on to such reasoning, declaring, "There is no differentiation in human rights between big and small."

The current Japanese Constitution guarantees a diverse range of rights, including freedom of thought and conscience, freedom of religion, freedom of expression and economic freedom, including property rights. Says Sakaguchi, "Freedom of expression is indispensable in upholding a democracy, and there exists the argument that freedom of expression should be more heavily protected than property rights, which can be recovered through political processes even in the off chance that it is restricted as long as the democracy is functioning. But I have never heard of there being big and small human rights."

Sakaguchi is particularly worried about the possibility that freedom of expression will be restricted as a "small human right" in times of emergency. "To position property rights as a 'big human right' and allow limitations to freedom of expression in the name of 'protecting a big human right,' such as property rights, is the complete opposite of the way it should be," he says.

And where do Sakaguchi's concerns come from? "It's written in the LDP's Q&A booklet that rules based on the Western notion of 'natural rights' must be amended, and that the people have a duty to respect the Constitution. One gets the impression that the draft revision puts the state in a position superior to human rights," Sakaguchi says. "If you switch the part that reads, 'To protect the big human rights, such as the lives, bodies and properties of the people' to say 'To protect the state,' the actual intent of the draft constitutional revisions becomes very clear."

He continues, "The purpose of the provision on emergencies is to protect the state. Such a provision can lead to thinking that 'to protect the state, which is in danger, the public must refrain from making statements or taking actions that are critical of the state,' thereby restricting freedom of expression and other human rights. I think the LDP's true intention is to push things along with priority on the state's will, rather than the human rights of the individual."

This is along the lines of the idea that human rights depend on the existence of a state, Sakaguchi says. He characterizes this as "a sharp break from the idea of human rights, which should be a universal principle of humanity."

Makoto Ito, an attorney who has been involved in numerous lawsuits on constitutionality, including ones regarding vote weight disparity, suggests that the categorization of human rights into big and small exemplify the LDP's view toward human rights.

"The notion that small human rights can be sacrificed for big human rights is not limited to times of emergency. If we allow such thinking to prevail, there is a possibility that some human rights will not be considered important enough to be protected even in times of peace." In other words, Ito is saying that we could find ourselves in a society in which disregard for human rights is the norm.

Other parts of the LDP's draft Constitution must not be overlooked, Ito adds. Article 13 of the current Constitution states, "All of the people shall be respected as individuals," while Article 97 says, "The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free." The LDP draft modifies Article 13 and deletes Article 97.

"In the LDP draft, the word 'individuals' in Article 13, has been changed to 'persons.' This completely dismisses individualism and the independent individuals presupposed by the Constitution," Ito says. "The deletion of Article 97 is the equivalent of denying the universality of human rights. And then to bring in the notion of 'big' and 'small' human rights is an act of turning one's back against the principle of respect for human rights."

As is evident thus far, alarm over human rights restrictions are expected to rise if the LDP's draft Constitution is to become a reality. Meanwhile, however, human rights are already coming under restrictions ahead of any constitutional changes, some say.

According to Tsuyoshi Inaba, the founder and a board member of Moyai, a nonprofit organization that supports those in poverty, the administration of Prime Minister Shinzo Abe has gradually lowered the sums of money people are able to receive as public assistance. "With the 2013 revision of the Public Assistance Act, welfare offices were given the authority to demand that those who are applying for welfare report why they are unable to receive assistance from family members. This can cause people to hesitate to apply for public assistance," he says. "The current state of affairs is already threatening Article 25 of the Constitution, which states that 'all people shall have the right to maintain the minimum standards of wholesome and cultured living.'"

Inaba is also worried about the fact that the LDP draft Constitution is trying to dictate what and how a family should be. In the LDP's version, Article 24 states, "Family members must support each other." To Inaba, he says, this seems like an attempt by the LDP to avert its eyes from the reality that family support is no longer enough to provide relief to those in poverty, and instead force upon the public the party's image of an ideal family. "Even though the state has a duty to guarantee that people can maintain the minimum standards of wholesome and cultured living, there appears to be the intent to shift that responsibility onto families," Inaba says.

If we accept that there are "small human rights," the rights of those in vulnerable positions in society may come to be regarded as "small."

There is always a possibility that one's human rights will be threatened. Already, there have been cases in which local governments have shown reluctance toward renting out public facilities -- in the name of "political neutrality" and for other reasons -- to citizens' groups wanting to hold events in opposition of constitutional revisions or for the abolition of nuclear power. It's frightening to imagine what might happen if freedom of expression and freedom of assembly were designated as "small human rights."

The LDP's Q&A booklet notes that the LDP draft Constitution does not deviate from the party's understanding that fundamental human rights are inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. If that is actually the case, however, the concept of a "big" or "small" human right should not even come up. (By Yoshiaki Ebata, Evening Edition Department)