Constitutional review needed to deal with natl emergencies
A massive earthquake, a colossal tsunami and a nuclear power plant accident. In the face of an unprecedented national crisis, we are compelled to give profound thought to the nature of the Constitution, which is the foundation of this nation.
On the 65th anniversary of its enforcement, we have analyzed the nation's top law in terms of its ability to handle the response to the March 11 disaster.
One problem with the current Constitution is that it lacks an article stipulating actions to be taken by the state in emergencies. National emergencies would include not only a large-scale natural disaster or a nuclear crisis like the latest ones, but also an incursion by foreign forces and a terrorist attack.
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Contingency article necessary
The government needs to quickly and appropriately deal with such crises. It is for this purpose that constitutions in many developed countries have special articles that stipulate the principles of actions to be taken in emergencies.
These articles are designed to prevent ad hoc, supralegal measures from violating fundamental human rights such as the freedoms of where to live and movement, and property rights.
After the March 11 disaster, the government established an emergency headquarters headed by Prime Minister Naoto Kan based on the Disaster Countermeasures Basic Law to rescue victims and support survivors.
The government's initial response to the earthquake and tsunami was basically appropriate because current disaster countermeasures have been constantly improved based on lessons learned from the 1995 Great Hanshin Earthquake.
However, some observers have pointed out that the disaster law does not give the government a free hand to take binding measures, and is not designed to deal appropriately with a huge and terrible disaster on the scale of the Great East Japan Earthquake.
The most serious problem lies in the government's handling of the nuclear plant crisis.
Based on the Nuclear Disaster Special Measures Law, the government has declared a state of nuclear emergency and is dealing with the accident. However, it was initially slow to take action.
The situation at the crippled Fukushima No. 1 nuclear power plant might not have become this serious if the government had not been bound by existing laws and instead taken emergency measures to transport personnel and material needed to cool the nuclear reactors.
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Preparation for next quake
Of course, it is most important in a national emergency that the prime minister exercises strong leadership and coordinates the responses of all government organizations.
However, developing a legal framework that enables the government to respond more smoothly during a crisis remains a basic issue that must be addressed.
Given the likelihood that constitutional revision will not be easy in the near future, we suggest the establishment of a basic contingency law.
The law would make the state responsible for taking sufficient measures to deal with a national emergency, and empower it to temporarily restrict some basic rights of the people to maintain the economic order and secure public welfare.
The Liberal Democratic Party, New Komeito and the Democratic Party of Japan agreed in 2004 to work toward establishing such a law.
With these legal arrangements in place, the government could respond more swiftly and appropriately than it did after the Great East Japan Earthquake should other devastating temblors strike, including an earthquake predicted to hit directly under the Tokyo metropolitan area, and quakes centered in the Tokai, Tonankai and Nankai sea areas.
The government, and the ruling and opposition parties, must comb through legal problems that have emerged while implementing the response to the March 11 disaster, and move in earnest toward establishing the basic contingency law.
Another problem lies in the bicameral parliamentary system that functions under constitutional provisions.
Before the latest disaster, the Diet was not functioning efficiently because the House of Councillors is controlled by the opposition parties. Even now when a political truce is in place, it would be a stretch to say the Diet is fulfilling its role when we see the tardy establishment of special legislation needed to promote reconstruction and recovery from the disaster.
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Upper house too strong?
Another issue just below the surface is the fact that the upper house is too strong.
A censure motion that the opposition camp threatens to use as a means to attack the government has no legal grounds. But under the divided Diet, parliamentary proceedings can become deadlocked if opposition parties decide to boycott sessions attended by a prime minister or cabinet ministers against whom a censure motion has been approved.
Under the divided Diet, a censure motion in the upper house can, for all intents and purposes, have the same effect as a no-confidence motion in the House of Representatives. This runs counter to the constitutional spirit that gives the lower house precedence over the upper chamber.
The ruling and opposition parties need to formulate new rules on Diet management. Ultimately, it will be necessary to define the lower chamber's precedence more clearly by revising the Constitution.
One idea is to relax requirements for enactment of a bill when passed a second time by the lower chamber after the upper chamber makes a different decision--namely lowering the threshold from the current majority of two-thirds or more to a simple majority.
It is also necessary to more clearly divide the roles of the two houses by, for example, limiting the right to designate a prime minister to the lower chamber.
Courts have handed down a series of rulings that found the disparity of vote values in lower and upper house elections was "unconstitutional" or "quasi-unconstitutional." Thus, the national election system urgently needs to be reexamined.
For that purpose, too, the Diet must drastically review the functions of the two chambers by starting with discussions on the matter from a constitutional perspective.
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