Japanese constitution and it reinterpretations

Japan's constitution has been causing controversy even before it was drafted. When the Supreme Commander for the Allied Powers (SCAP) forces began working on a new constitution in 1946, it was widely believed that it would be best if the Japanese themselves prepared it (Williams, Reference Williams1965: 673). Therefore, the first draft was created by a team of Japanese lawyers led by Jōji Matsumoto appointed by the Prime Minister Kijūrō Shidehara. Matsumoto and his team borrowed heavily from the Meiji constitution (Okudaira, Reference Okudaira1990: 18–19), making only minor revisions, and the draft was heavily criticized, not only by the occupying forces but also by the contemporary Japanese press as being too conservative. As a result, in February 1946, Matsumoto and his team were presented with an American draft of the new Japanese constitution (Finn, Reference Finn1992: 91–100). This document, prepared by the American team, included numerous ideas lifted almost straight from the American constitution, including ideas relating to democratic principles and to the limited role of the government (Inoue, Reference Inoue1991: 73–6). Japanese officials were initially shocked by the American draft they received in February 1946. However, within a few weeks their attitude changed, and Shidehara was convinced that accepting the American proposal would secure the continuance of the throne. Finally, after long debate in the Japanese Diet, the constitution was promulgated in November of 1946 and went into effect on 3 May 1947 (Bix, Reference Bix2001: 570–3).

On 28 April 1952, the American occupation of Japan came to an end and the issue of amending the constitution became much more public. Initially, it focused almost exclusively on the possibility of rearmament and on the revision of Article 9. This was one of the crucial points of the general election campaign of October 1952. In 1954, the Liberal Party established a Constitutional Investigation Committee. Both major conservative forces, the Liberal Party and the Democratic Party, were very vocal about their intention to amend the constitution to allow for rearmament of Japan (Ward, Reference Ward1956: 50–1). It should come as no surprise that the Liberal Democratic Party (Jimintō) – which came to life after merger of the Liberal and Democratic parties on November 15 1955 – has been a strong advocate of amending the constitution since its very beginning (Kōichi, Reference Kōichi1988: 94–5).

For the next few decades, the diet rarely discussed amending the constitution, though over the years numerous LDP politicians have been strongly in favour of it. Regardless of the political reasons behind it, it is also important to remember that the procedure of implementing any changes to the constitution is rather complicated. According to Article 96, ‘Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify’ (Prime Minister of Japan and His Cabinet, 2016). Therefore, 2016 it should come as no surprise that, instead of trying to amend the constitution, Jimintō has offered on several occasions a reinterpretation of certain articles, mainly of Article 9. The birth of self-defence forces (Jieitai) in 1954 required a new interpretation which asserted that the use of force must be limited to the minimum necessary; that it may be used only in the absence of any other options; and that it can be used only to repel unjustified attack on Japan (Williamson, Reference Williamson2014: 67–8). Another reinterpretation became necessary after the Tokyo District Court determined in the 1959 Sunagawa Case that it was unconstitutional to maintain American bases on Japanese soil based on the Japan–United States Mutual Security Treaty. In 1960, the Supreme Court overturned this decision. It declared that the constitution does not deny the right to self-defence and that section 2 of Article 9 prohibits only war potential (senryoku) maintained by the Japanese government (Matsui, Reference Matsui2011: 246–7).

Two other examples of such reinterpretations are worth mentioning. The lack of a military contribution from Japan during the first Gulf War in 1990 and 1991 created tension in relations with the United States. As a result, after long and heated debate, the Diet passed the Peacekeeping Operation Law in June of 1992. It allows Japanese Self-Defense Forces (SDF), under certain circumstances, to participate in international peacekeeping operations in a non-military capacity, with any use of weapons limited to the minimum necessity (Cooney, Reference Cooney2007: 40–6). In 2003, Japan was again urged by United States to participate in the American operation in Iraq. In order to allow troops to be dispatched to Iraq, the government authorized the Special Measures Law on Humanitarian Assistance and Reconstruction of Iraq on 26 July 2003. This law allows the SDF to participate in humanitarian and reconstruction assistance and to provide medical care. From 2004 until 2006, a Ground Self-Defence Forces unit was stationed in southern Iraq. The Air Self-Defence Forces were providing assistance in Kuwait from December 2003 until September 2008 (Fukushima, Reference Fukushima, Inoguchi, Ikenberry and Sato2011: 64–6).

During the 1990s and early 2000s, amending the constitution was not on the political agenda. This had much to do with faction politics within the LDP. Neither Yōhei Kōno's nor Ryūtarō Hashimoto's factions were in favour of changing the constitution. However, when Hashimoto's faction lost influence under the weight of political scandals, Mori's faction became the most prominent part of the LDP (Berkofsky, Reference Berkofsky2012: 141). In December of 2004, during Jun'ichiro Koizumi's term, which emerged from Mori's faction, the LDP created a special group whose sole aim was to prepare a new constitutional draft. The 2005 draft proposed, among other changes, amendments to Articles 9 and 96 and to the Preamble. However, Koizumi realized that, though it pleased the radically conservative wing of his party to push for such changes, it also increased anxiety in core voters who were against any amendments to the constitution, especially to those regarding Article 9 (Berkofsky, Reference Berkofsky2012: 151–2). Furthermore, LDP's coalition party Kōmeitō was not willing to support any amendments, though their members did vote for most of the bills that were used to reinterpret the constitution (Itoh, Reference Itoh, Hrebenar and Nakamura2015: 153–4.).

Abe Shinzō’s first term as the Prime Minister of Japan, which lasted from September 2006 until September 2007, was regarded as relatively uneventful. Abe's conciliatory approach to China and South Korea was met with relief and seemed to signify a normalization of international relations in the region. Abe refrained from visiting the controversial Yasukuni shrine, which might have strained those bilateral relations, though during his entire term he remained vague about his intentions to visit it (Hughes, Reference Hughes and Dent2010: 37). Moreover, both countries agreed to pursue common goals such as cooperation regarding energy, environment, finance, technology, and protection of intellectual property rights. One of the most interesting developments during this ‘ice-melting’ period is the initiative to begin joint historical research between Japanese and Chinese scholars that aims to create a history textbook which presents an interpretation of the wartime past that is acceptable to both sides (Rose, Reference Rose and Breen2008: 55).

Regardless of the positive approach to Sino–Japanese relations, even during this period Abe expressed his dedication to amend the constitution. It is worth mentioning that Abe has been a long time member of Nippon Kaigi, which is the largest conservative organization in Japan. Since its formation in 1997, Nippon Kaigi has been an advocate of constitutional revision. They were responsible for a vigorous campaign for legislation declaring Hinomaru and Kimigayo the national flag and anthem, respectively, which was adopted in 1999 (Hook et al., Reference Hook, Gilson, Hughes and Dobson2005: 35). Nippon Kaigi’s predecessor, Nihon wo mamoru kokumin kaigi, presented its own constitutional draft in 1994, which explicitly stated that Japan should maintain a national army (Winkler, Reference Winkler2011: 75–76). Abe implicitly declared that amending the constitution had been his goal ever since he started his political career, even though he understood its importance for Japanese post-war development (Abe, 2007).

In September of 2007, after the LDP lost the July 2007 House of Councillors elections, Abe officially resigned due to unexpected health problems (Adem, Reference Adem, Chatterji, Gopal and Sigh2011: 268–9). It seems, however, that there was also political reason for his resignation. In March of the same year, Abe said that, to the best of his knowledge, there were no documents which confirmed that the so-called comfort women (ianfu) were forced into prostitution by the Japanese military during the war (Rose, Reference Rose and Breen2008: 55). His remark ignited criticism from South Korea and China (Reilly, Reference Reilly2012: 193). It also raised objections from the United States Congress, which voted for a resolution that called on the Japanese Government to ‘formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces’ coercion of young women into sexual slavery, known to the world as comfort women, during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II’ (House of Representatives, US, 2007). What followed was a series of similar resolutions passed by Netherlands, Canada, and finally by European Union on 13 December 2007. Though Asian countries, particularly South Korea, have been raising the issue of mistreatment of comfort women since the early 1990s, 2007 signified the first time Western countries pressured the Japanese government to apologize and accept responsibility for the ianfu issue (Wolfe, Reference Wolfe2014: 260–2).

Probably the most significant reason why Abe and his government were unable to amend the constitution is that they lacked public support for it, especially regarding Article 9. In a public-opinion poll conducted by NHK in August of 2007 with regard to amending the Japanese constitution, 41% of all respondents supported hypothetical changes. This support, even though larger than one might have expected, would have been insufficient to ratify the changes in a public vote. Furthermore, in response to questions regarding the necessity of amending Article 9 (9 jō kaisei no zehi), only 28% of respondents said they would support such a change. The poll also revealed that the two groups most strongly in favour of the amendments were males aged 18 to 39 and males over 60 years old (NHK, 2007). In spite of these findings, the NHK poll ultimately demonstrated that, even if parliament had passed any changes, public support was not strong enough to carry it out through a referendum. A poll conducted in 2009 by conservative Yomiuri Shimbun showed that 51.1% of respondents supported change to the constitution. However, those who supported amending Article 9 were still a minority (Berkofsky, Reference Berkofsky2012: 147).

Despite being unable to pass any constitutional changes during his first term, Abe returned to this topic during the campaign in 2012. Amending the constitution became a crucial theme during the House of Representatives electoral campaign. However, according to an opinion poll conducted by Asahi newspaper and the University of Tokyo, the general public was still sharply divided on this subject (Asahi Shimbun, 6 December 2012: 26). According to a poll conducted more than a month later, almost 89% of the parliament supported amendments to the constitution (Asahi Shimbun, 28 January 2013: 1). At around the same time, Abe declared his intention to first change Article 96 (Mainichi Shimbun, 31 January 2013: 1), which deals with the procedure for changing the constitution itself. Later on, newspapers reported that the LDP was considering allowing people over 18 years old to vote (instead of only people over 20) (Mainichi Shimbun, 5 March 2013: 1). Because many opinion polls, such as the NHK poll mentioned previously, showed that younger people most supported changing the constitution, Abe and other LDP politicians believed that altering the legal age for participation in the public vote would increase their chance to successfully amend the constitution in the future.

Collective memory and the constitution

Collective memory can be broadly defined as an idealized depiction of a group's past that is embedded in the social fabric. The ability of collective memory to survive in the face of alternative memories or counter-memories depends upon the power of the group that holds it (Foucault, Reference Foucault and Bouchard1980: 144). Jeffrey Olick stresses that how a group remembers its past differs radically from how individuals remember it. How a group remembers cannot be treated as a mere sum of individual memories. Collective memory is always shaped by contemporary conditions, and authorities can influence its content. Traumatic events from the past can become especially important elements of collective remembering, even after a long period of time (Olick, Reference Olick1999: 338–45). Collective memory is usually comprised of three elements: individual memories, memories of a group, and institutional memories (Szacka, Reference Szacka2006: 44–5).

Pierre Nora introduced the concept, ‘lieux de mémoire’, which is most commonly translated as ‘sites of memory’. He describes it as any form of commemoration that is strongly connected to a group's identity. In a sense, it is a phenomenon that works against the urge to deliberately create archives, such as museums and libraries, which are in most cases manifestations of the dominant vision of the past. Instead, it relies on the spontaneity of its creation (Nora, Reference Nora1989: 12). The most important element of the lieux de mémoire is its significance to a group's identity. Hampton and Peifer extended and clarified Nora's concept by stating that physical locations, ideal concepts, institutions, texts and historical figures may be regarded as sites of memory (Hampton and Peifer, Reference Hampton and Peifer2000: 374). Collective memory can also be influenced by historical artefacts, such as monuments, paintings or books (Szacka, Reference Szacka and Szpociński2005: 10). To summarize, collective memory is comprised of several elements such as individual memory, memory of a group, and institutional memory, which is constructed mainly through education, museums and state-sanctioned commemorations, ‘sites of memory’ and historical artefacts. The significance of these elements for a group's collective memory depends upon the circumstances, and is almost constantly reorganized. Moreover, collective memory may be shaped by constant reminders of certain events and by forgetting others at the same time (Riceour, Reference Ricoeur2007: 105–6). Consequently, through recalling or forgetting certain elements of a group's heritage and increasing or decreasing their significance, the group's collective memory can be influenced and can then become a part of the broader political effort to reshape the group's collective identity (Korporowicz, Reference Korporowicz and Hałas2012: 169–71).

Collective memory can have a strong relation with national identity. Various elements of culture are interrelated in the syntagmatic relation, in which certain elements determine the meaning of the others. This relation is dynamic, and it can undergo significant transformations (Kloskowska, Reference Kloskowska2005: 36–40). Cultural memory, a term introduced by Jan Assmann, includes knowledge and patterns of behaviour that are transmitted during socialization. Such knowledge also includes information regarding certain historical events that are significant to a group's identity. However, which elements from a group's past are activated depends not only on their historical significance but also on the current socio-political conditions (Assmann and Czaplicka, Reference Assmann and Czaplicka1995: 125–30). Certain cultural elements, including collective memory, can become ‘core values’, which are indispensable to a group's collective identity. They not only bind members of the group together; they also help to distinguish it from other groups. (Smolicz, Reference Smolicz1999: 105–6). Certain elements of the past might become so significant for a certain group that they start to function as myth (Zerubavel, Reference Zerubavel, Olick, Vinitzky-Seroussi and Levy2011: 239–40). Myth, understood as a narration that explains everyday reality, is more effective the more hidden and implicit it is (Doty, Reference Doty2000: 138–40).

At first glance, the relationship between collective memory and legal documents (such as a constitution) seems to be fairly vague. That said, a certain legal decision can be made as a reflection on past events. Collective memory of fascism and authoritarianism in post-war Germany and Italy brought legal regulations to life to guarantee that the tragic events of the past do not happen again (Scheppele, Reference Sheppele and Karstedt2009: 245). However, Mark Osiel suggests that legal proceedings or documents themselves might become both a source of collective identity and a basis for the founding myth of a group (Osiel, Reference Osiel, Olick, Vinitzky-Seroussi and Levy2011: 469). What is particularly important is not the content of such documents, but their symbolical significance. Legal documents, like any other artefacts, might gain symbolic significance that goes beyond their literal meaning. They become objects of discourse, and their meaning is socially constructed. Furthermore, through a process of articulation, they might even become what Laclau and Mouffe call a ‘nodal point of discourse’: i.e., an indispensable element of a particular system of meaning (Laclau and Mouffe, Reference Laclau and Mouffe2001: 113–14). The meaning of other elements of social discourse is in fact constructed around such nodal points (Jorgensen and Phillips, Reference Jorgensen and Phillips2002: 26).

Taking into consideration the strong relationship between collective identity and memory, it can be said that even legal proceedings and documents may strongly influence collective memory if they become symbolically significant for a group. Constitution writing in itself requires a state-sanctioned understating of the past, and it is heavily influenced by the collective memory of those who are responsible for its creation (Sheppele, Reference Sheppele and Karstedt2009: 245). The wording and the content are influenced by the historical and political circumstances of the times in which they were created. This is definitely evident in the case of the Japanese constitution. However, Article 9 with its pacifistic undertones, quickly became one of the crucial elements in post-war Japanese identity, as can be seen, for example, in case of the petition regarding the banning of nuclear weapons. The Suginamo Appeal (Suginamo appiru) was introduced in May of 1954 and managed to gather over 30 million signatures by August of the same year (Orr, Reference Orr2001: 45–8). Other mass protests – such as the Anpo protest in 1960 against revising the security treaty with United States (Ando, Reference Ando2014: 30–31) or protests against the Vietnam war that shook Japan in the mid-1960s (Hook et al., Reference Hook, Gilson, Hughes and Dobson2005: 104–105) – also signify the importance of pacifist values for the post-war Japanese identity. That those values are interconnected with Article 9 of the 1947 constitution is visible in numerous opinion polls that exhibit strong opposition to any changes to it (Asahi Shimbun, 2014, 2015; Mainichi Shimbun, 2015). Furthermore, massive protest against its reinterpretation occurred in August of 2015. It gathered around 32 thousand people (Sankei Shimbun, 31 August, 2015). The significance of Article 9 for the Japanese people suggests that it might have become a matter of post-war Japanese identity and one of the nodal points of contemporary pacifist discourse. While the concept of pacifism can be understood as a floating signifier – that is, an ideological element that is not fixed in the discursive system (Howarth, Reference Howarth2015: 12) – in the Japanese case, its meaning is constructed around Article 9 of the constitution.

The Emperor and his people

The main body of the analysis will first focus on the preamble. The current constitution strongly stresses that sovereignty comes from the Japanese people and that they desire permanent peace in the world (Koko ni shuken ga kokumin ni sonsurukoto wo sengen shi . . . Nihon kokumin ha kōkyū no heiwa wo nengan shi). The LDP draft, while maintaining the importance of pacifism for contemporary Japan and stressing that sovereignty comes from the Japanese people, includes several significant changes that affect the overall feel of the passage. First is the inclusion of the emperor's right at the beginning of the preamble. The emperor is said to be a symbol of unity for the Japanese people (kokumin tōgō no shōchō de aru tennō wo itadaku kokka de ate). Second, Japan is described as a country with long history and a unique culture (Nihonkoku ha nagai rekishi to koyū no bunka wo mochi) that has suffered from the last war and from numerous natural disasters but has managed to recover and rebuild (Wagakuni ha, saki no taisen ni yoru kōhai ya ikuta no daisaigai wo norikoete hatten shi) (Jimintō, 2012b: 42). The constitution lacks any reference to the emperor in the preamble and makes no strong reference to the country's history and distinctive culture. Furthermore, while both documents reference the suffering inflicted by the war, the way those events are framed differs significantly. The constitution explicitly states that, ‘We, the Japanese people . . . never again shall we be visited with the horrors of war through the action of government’ (‘Nihon kokumin . . . seifu no kōi niyotte futatabi sensō no sanka ga okoru koto no nai’). This seemingly minor change in wording reveals an important revision in the approach to the collective memory of the Pacific War. Framing the suffering during the war as being inflicted on the Japanese people due to the actions of their own government is without a doubt due to the influence of the American lawyers who drafted the constitution. However, this sentiment, which blamed the so-called military clique for the people's suffering and loss, quickly became embedded in the collective memory of the war among the Japanese themselves (Lu, Reference Lu1997: 499–500). Moreover, the term sanka, which is usually translated as calamity and is often associated with the Japanese word sensō, contributes to the phrase that can be translated as ‘miseries of war’. Using the term kōhai instead, which is closer in its meaning to decay or ruin, the draft associates wartime hardship with natural disasters such as earthquakes, thereby weakening the relationship between military action and the people's suffering. The overall result might be compared to the Hiroshima Peace Memorial Museum before its renovation in 1994, when the tragedy was presented almost without a broader context, as something akin to natural disaster rather than as a consequence of military actions taken by both sides (Buruma, Reference Buruma1994: 92–111). Furthermore, erasing the reference to the actions of Japanese politicians shifts responsibility in a more general direction, thereby making room for far more open interpretations.

Another amendment worth mentioning is the change in subject of the opening paragraph. The Japanese constitution begins with, ‘We, the Japanese people’ – a sentence that clearly references the American Constitution. This phrase positions the people as sovereign. It is repeated numerous times in the preamble alone, thereby creating the strong impression that the citizens have the agency in the country. The draft, however, changes its opening paragraph by placing the country (Nihonkoku ha nagai rekishi to koyū no bunka wo mochi) as the subject. This difference might suggest the priority of the state over its people, despite the fact that it is somehow compensated by referring to the Japanese people as not only sovereign (kokumin shūken no moto) but also as authors of the constitution (Nihon kokumin ha. . .kono kenpō wo seitei suru).

The first chapters of both the constitution and the draft are concerned with the emperor himself. Article 1 states that the emperor is a ruler (genshu) who is also the symbol of Japan and the Japanese nation (Nihonkoku oyobi nihon kokumin tōgō no shōchō de atte), and that his position is based on the consensus of opinion of the Japanese people (Nihonkokumin no sōi ni motozuku). Such wording suggests that the emperor might have stronger prerogatives than now, even though this is not indicated anywhere else in the draft. It also suggests the strong sentiment towards the pre-war Meiji constitution, which stated that the emperor is the sovereign (Lu, Reference Lu1997: 339–40).

National flag and anthem

Article 3 introduces completely new elements to the constitution. The first paragraph explicitly states that nisshōki is the Japanese flag and that kimigayo is the national anthem (Kokki ha nisshōki toshi, kokka ha kimigayo to suru). The second emphasizes the fact that Japanese citizens have the responsibility to respect both their flag and anthem (Nihon kokumin ha kokki oyobi kokka wo sonchō shinakerebanaranai) (Jimintō, 2012b: 43). Neither the flag nor the anthem is mentioned in the current text of the constitution, though they have essentially remained unchanged since the nineteenth century. However, neither nisshōki nor kimigayo were officially recognized as the national flag and anthem until August of 1999 when the diet passed a resolution that legalized both of them as official Japanese symbols. The proposition to legalize them was introduced in March of the same year and was met with strong criticism. It also initially lacked the necessary support in the diet. However, within a few months the LDP managed to convince the New Kōmeitō representatives to support the proposition and the resolution was finally passed in August (Aspinall, Reference Aspinall2001: 205–6). The regulation, which included only two articles, stated simply that nisshōki is the Japanese flag and that kimigayo is the Japanese national anthem. It also included the scheme of the flag and the musical score for the anthem as well as the lyrics (E-Gov, 1999). The authors of the draft may have intended to present contemporary Japan as a symbolic continuation of the pre-war state by adapting wording that put the emperor in the place of the sovereign and introducing a new article that officially declares nisshōki and kimigayo as flag and anthem.

‘The Normal country’: Article 9

Though the draft does not remove the sentence which states that the Japanese nation renounces war from Article 9, it deletes the declaration that Japan will never have armed forces. Furthermore, it adds an entire section about forces of self-defence. It is worth noting that the draft utilizes the word gun, which is associated with military forces, instead of tai, which means group or unit and also has numerous other non-military connotations such as orchestra (gakitai) or fire brigade (shōbōtai). Tai is also currently used to describe Japanese self-defence forces (jieitai). First, it states that, in order to maintain the peace, independence, and safety of the country and its people, Japan will maintain self-defence forces (kokubōgun) with the Prime Minister as its commander-in-chief (Wagakuni no heiwa to dokuritsu narabini kuni oyobi kokumin no anzen wo kakuho suru tameni naikaku sōridaijin wo saikō shikikan to suru kokubōgun wo hoji suru). In the third paragraph, the draft declares that those forces will be able to participate in international military peacekeeping missions to protect the nation's peace, independence and safety, and that they will also operate to maintain domestic public order and to protect individual rights. In the next paragraph, which deals with the protection of the country's soil (ryōdo nado no hozen nado), the draft states that the constitution guarantees the protection of Japanese soil, territorial waters, and air space (Jimintō, 2012b: 45).

The possibility of Japan's self-defence forces operating abroad might bring back recollections of the actions of the Japanese Imperial Army during the Pacific War. Moreover, regulations that concern the protection of Japanese soil, territorial waters, and air space might be regarded as a reaction to the Senkaku/Diaoyu dispute, which still remains unresolved. Despite the controversies surrounding the possibility of sending Japanese troops abroad to perform military activities (even if only broadly understood as self-defence, or part of peacekeeping operations), and despite its associations with Japan's war-time past, it can be argued that the proposed amendments would in fact constitute merely an update of the constitution to the regulations that are already effective and would in fact clarify the potential use of self-defence forces. Nevertheless, Abe and the LDP show little consideration for the position of Japan's neighbours or for major opposition from Japanese citizens.

Freedom of belief and the secular state

Paragraph 1 of Article 20 is essentially the same as in the current constitution. It declares that freedom of belief is guaranteed and that the state will not treat any religion with preference (Shinkyō no jiyū, hoshō suru. Kuni ha ikanaru shūkyōdantai ni taishitemo, tokken wo ataetehanaranai). The second paragraph of the draft states that no citizen has to participate in any sort of religious rites (Nanbitomo, shūkyōjō no kōi, shukuten, gishiki mataha gyōji ni sanka suru koto wo kyōsei sarenai). The most significant difference is revealed in the third paragraph. The current constitution states that, ‘the state and its organs shall refrain from religions education or any other religious activity’. The paragraph in the draft begins in a somewhat similar manner by declaring that neither the state nor its organs nor any local authorities shall undertake any religious activities in connection with any particular religion (Kuni oyobi chihōjichitai sono hokano kōkyōdantai ha, tokutei no shūkyō no tameno kyōiku sono hokano shūkyōteki katsudō wo shitehanaranai). But it then is states that this regulation does not include activities that are within widely recognized cultural or social norms (Tadashi, shakaiteki girei mataha shūzokuteki kōi no hani wo koenaimono ni tsuite, kono kagiridenai) (Jimintō, 2012b: 48).

The wording of the third paragraph of Article 20 suggests that politicians might freely participate in religious events even in an official capacity and perform religious activities so long as they can find cultural or social justification for their actions. The wording of the paragraph in the draft does not explicitly state that it must be applied to any particular religious place or holiday. However, given that members of the more conservative faction of the LDP visit numerous Shintō shrines such as Ise Jingu and Yasukuni almost every year, it is fair to assume that the authors of the draft were taking this into consideration. Abe's visit in December of 2013 caused much controversy in Japan and abroad, partially due to strong uncertainty about participation by politicians in religious events and about whether it is consistent with the constitution (Asahi Shimbun, 27 December 2013). Furthermore, ever since class-A war criminals were enshrined in Yasukuni, any attempts to bring government supervision over the shrine has been met with strong opposition from pacifist and leftist organizations (Jager andMitter, 2007: 129). At the same time, organizations such as Izokukai (The Japanese War-Bereaved Families Association, Nihon Izokukai) have been advocating for a revision of official supervision by the state over the shrine since the 1950s (Seraphim, Reference Seraphim2006 – 2007 in references: 241). The proposed change will without a doubt clear current legal uncertainty even as it leaves the final decision to participate in any religious event in the hands of individual politicians. However, it will also create an opportunity to bind religion and the state, which might draw comparisons with the relationship between Shintō and the Japanese state, which was strong during the war (Seraphim, Reference Seraphim2006: 37–40).

Amending the constitution

The current constitution states that every amendment first requires a concurring vote of at least two-thirds of the members of the diet and that it is then submitted to the people for ratification, which requires a majority of all votes cast. The draft makes it easier to introduce changes into the constitution. First, it states that only a majority of concurring votes of the members of the diet is required to submit the amendment to the people (Ryōgiin no sorezore sōkiin no kahansū no sansei de kokkai ga giketsushi, kokumin ni teian shite sono shōnin wo enakerebanaranai). It also makes ratification by the citizens slightly simpler. According to the LDP's proposition, only a majority of all valid votes would be required to accept an amendment (yūkō tōhyō no kahansū no sansei wo hitsuyō to suru), which means that all invalid votes would be automatically excluded (Jimintō, 2012b: 65). It should come as no surprise that, ever since he returned to power, Abe declared numerous times that he intends to change the constitution starting at Article 96 (Mainichi Shimbun, 2 May 2013; 22 July 2013). Implementing the proposed changes would definitely simplify the passing of any future amendments through the diet. But it is worth noting that any proposal would still have to be approved by a majority of the Japanese people.

Protection of personal information, state of emergency and other changes

LDP's draft changes most of the articles of the current constitution. A few of them require a brief introduction because, even though they are not related to the main topic of this study, they showcase the scope of proposed changes. Article 13 changes the word individuals (kōjin) into persons (hito) to state that all people should be respected not as individuals, as it is now in the constitution, but as human beings (Jimintō, 2012b: 46). A newly added paragraph 2 of Article 19 states that any use of personal information regarding another individual without his/her consent is illegal (Nanibito mo, ninji ni kansuru jōhō wo futō ni torie shi, hoyū shi, mataha riyō shitehanaranai). This change provides for a much stronger protection of the individual's personal information than the current document. The draft also adds a new paragraph to Article 21, which deals with freedom of assembly. Newly introduced regulations prohibit any actions that might disturb public order and public interest (kōeki oyobi ōyake no chitsujo wo gaisuru kotow o mokuteki toshite katsudō wo okonai, narabi ni sore wo mokuteki toshite kessha wo suru koto ha, shitatamerarenai). Paragraph 2 of Article 25 obliges citizens to cooperate with the state in its effort to preserve the environment (Kuni ha, kokumin to kyōryoku shite, kokumin ga ryōkōna kankyō wo kyōju suru koto ga dekiru yōni, sono hozen ni tsutomenakerebanaranai) (Jimintō, 2012b: 48–9). The draft also made changes to regulations regarding intellectual property rights. It also slightly weakens Article 36, which absolutely forbids torture and cruel punishment. The draft removes the term absolutely (zettaini) (Jimintō, 2012b: 51).

Furthermore, the draft introduces an entire section that is devoted to a state of emergency (Kinkyūjitai), which is not present in the current constitution. Article 98 of the draft states that the prime minister may declare a state of emergency in case of attack by foreign military forces (gaibu kara no buryokukōgeki), domestic rebellion or unrest (nairan) or danger of a natural disaster (shizensaiga). Furthermore, the next article specifies that, during a state of emergency, the cabinet may issue special orders that are equivalent to laws passed under regular circumstances by the diet (Kinkyūjitai no sengen ga haserareta toki ha. . .naikaku ha hōritsu to dōitsu no kōryoku wo yū suru seirei wo seitei suru koto ga dekiru hoka). Moreover, both the declaration of a state of emergency and all orders issued during this period must be approved by the diet before or afterwards (jigo ni kokkai no shōnin wo enakerebanaranai). Regarding the obligations of citizens during a state of emergency, the draft says that everyone should act according to orders issued by the cabinet and any other regulations implemented to protect the lives of citizens (Nanbitomo. . .tōgai sengen ni kakaru jitai ni oite kokumin no seimei, karada oyobi zaisan wo mamoru tameni okonawareru sochi ni kanshite haserareru kuni sono hoka ooyake no karakuri no shiji ni shitagawanakerebanaranai) (Jimintō, 2012b: 64–65).